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 The commerce clause of the federal Corist 
 
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THE 
 
 COMMERCE CLAUSE 
 
 OF THB 
 
 FEDERAL CONSTITUTION 
 
 BY 
 
 E. PARMALEE PRENTICE 
 
 AND 
 
 JOHN G. EGAN 
 
 Of Chica'go 
 
 CHICAGO 
 CALLAGHAN AND OOMPANl 
 1898 
 T 
 
ij>lOi bV 
 
 1 
 
 COPYKIGHT, 1898, 
 BY 
 
 OALLAGHAN AND OOMPANT. 
 
 STATE JOTmNAL FEINTING COMPANT, 
 Pbditebs and Stbkkotypeks, 
 
 MADiaOK, WIS. 
 
TABLE OF CONTENTS. 
 
 CHAPTEE I. 
 HISTORY OF THE COMMERCE CLAUSE. 
 
 Purpose of the Commerce Clause 3 
 
 Proceedings of the Constitutional Convention , . . . 4 
 
 The Place in the Constitution Occupied by the Clause . . 9 
 
 Is the Federal Commercial Power Exclusive .... 10 
 
 Early Construction of the Clause 13 
 
 Growing Importance of the Clause 14 
 
 Gibbons vs. Ogden 15 
 
 Brown vs. Maryland 18 
 
 Willson vs. Blackbird Creek Marsh Company .... 19 
 
 New York vs. Miln 31 
 
 The License Cases 33 
 
 The Passenger Cases 34 
 
 Cooley vs. Port "Wardens 36 
 
 Final Statement of the Rule as to Exclusiveness .... 37 
 
 Difficulty of Applying the Rule 39 
 
 The Purpose of the Clause as a Test 31 
 
 The Widening Scope of the Clause 38 
 
 Change in Theory of Constitutional Construction ... 34 
 
 The Application of the Doctrine of State's Rights ... 86 
 
 Effect of the Overthrow of this Doctrine 37 
 
 Difference Between the Three Grants of Power .... 40 
 
 Difference Between Foreign, Indian and Interstate Commerce . 41 
 
 CHAPTEE n. 
 
 DEFINITIONS OP COMMERCE. 
 
 Transportation an Essential Element . 
 Transportation for Other Purposes than Trade 
 Telegraphs and Telephones .... 
 Banking and Insurance .... 
 The Authority to Define Articles of Commerce 
 Prevention of Fraud — Oleomargarine Cases 
 Manufacture is Not Commerce . 
 Illustrations of Business Not Within Federal Control 
 
 44 
 44 
 46 
 46 
 49 
 49 
 54 
 55 
 
IV CONTENTS. 
 
 Gambling 55 
 
 Infected Goods, Criminals, etc. 56 
 
 Ldmitation Upon State Jurisdiction 58 
 
 Police Power of Ck>ngres3 59 
 
 CHAPTER III. 
 
 DISTINCTION BETWEEN DOMESTIC AND INTERSTATE COM- 
 MERCE. 
 
 Relation of Commeece to the Goods Caeried ... 60 
 
 When Federal Control of Commerce Begins .... 61 
 
 When Interstate Transportation Begins 61 
 
 Interruption of Transportation 63 
 
 When Transit Ends 64 
 
 The Original Package Rule 66 
 
 The Rule is Not of Logic, but of Convenience .... 70 
 
 Exclusion of Matter from the MaUs by State Legislation . . 73. 
 
 The Wilson Act 76 
 
 South Carolina Dispensary Law , . 79 
 
 Definition of an Original Package ...... 83 
 
 Original Packages May be of Any Size 83 
 
 Importation in Violation of Law 83 
 
 Extent of State Jurisdiction Over Original Packages ... 83 
 
 E£Eect of Breaking a Package 84 
 
 Effect of Sale by Importer 85 
 
 The Fedeeal Commercial Power in Relation to the Carbieb 85 
 
 Domestic Carriers on Navigable Waters 85 
 
 Domestic Commerce by Land Through Other States ... 87 
 
 Carriers Operating Within a Single State . , . , . 90 
 
 Extent of Interstate Commerce Act ...... 94 
 
 Common Control 94 
 
 Handling at Terminal Points 94 
 
 Transportation Upon Navigable Waters .... 95 
 
 Extent of Federal Jurisdiction Over Navigation .... 98 
 
 Definition of Public Navigable Waters 98 
 
 Streams Not Accessible from Other States 99 
 
 Artificial Highways .99 
 
 Navigability Not Determined by Means of Transportation . . 100 
 
 Extent of Admiralty Jurisdiction 101 
 
 Regulation of Vessels 101 
 
 Instruments Affecting Title to Vessels 103 
 
 Rule of the Road 103 
 
 Local Regulations of Navigation . . . " . , . 103 
 
 Inspecting of Vessels, Licensing OflScers, etc. . . . . 103 
 
 Provisions Relating to Passengers ...... 104 
 
 Limitation of Liability 105 
 
CONTENTS. V 
 
 CHAPTEE IV. 
 
 CONTROL OF NAVIGABLE WATEES. 
 
 Federal Authority Over Navigable Waters .... 109 
 
 Powers of the State to Improve Navigable "Waters . . . 113 
 
 Obstructions in Navigable Waters 114 
 
 The Purpose of the Obstruction 116 
 
 The Present Rule 117 
 
 Obstructions in Interstate Streams 118 
 
 Establishment of Port of Entry 130 
 
 The Ordinance of 1787 120 
 
 Federal Legislation Concerning Navigable Waters . , .136 
 
 Property Rights Relating to Navigable Waters .... 135 
 
 Police Jurisdiction Over Navigable Waters 137 
 
 CHAPTEE Y. 
 
 PILOTAGE, PORT REGULATIONS, QUARANTINE, INSPECTION 
 LAWS AND OTHER LOCAL MATTERS. 
 
 The purpose of a statute is disclosed in its effect . . . 139 
 
 Pilotage 140 
 
 Poet Regulations 143 
 
 Wharfage 144 
 
 quaeantine 146 
 
 Quarantine and Other Fees and Tolls Distinguished from Taxes . 148 
 
 Taetng and Sale op Game and Fish 150 
 
 Inspection Laws 153 
 
 Inspection of Articles of Interstate Commerce .... 153 
 
 Inspection Means Examination 154 
 
 Purpose of Inspection to Exclude Unsound or Fraudulent Goods 155 
 
 Inspection May Include Form, Weight, etc. .... 156 
 
 Fertilizers 157 
 
 Inspection Fees 157 
 
 Feeeies and Beidges 157 
 
 Highways 161 
 
 CHAPTEE VI. 
 
 REGULATION OF GARRIERa 
 
 Extent of Positive Federal Law ...,.,. 163 
 
 Extent of State Jurisdiction , . 163 
 
 The Solution of the Problem 164 
 
 The Duty to Receive, Carry and Deliver 166 
 
 The Contract of Carriage 167 
 
 State Acts Enforcing or Modifying the Common Law . , 167 
 
VI CONTENTS. 
 
 Right of Action for Personal Injuries 169 
 
 Actions for Damages for Fire 170 
 
 Actions for Importation of Infected Cattle .... 170 
 
 Regulation of Interstate Transportation 174 
 
 Transportation of Animals 175 
 
 The Right to the Benefit of State Laws 177 
 
 Appointment of Resident Agents 178 
 
 Sunday Laws • . 178 
 
 Control of Right of Way 179 
 
 Charges Upon Telegraph Poles and Wires 180 
 
 Transmission and Delivery of Telegrams 181 
 
 Transmission of Freight 182 
 
 State Regulation Affecting Passenger Tickets .... 183 
 
 Stopping Trains 184 
 
 Details of Operation 184 
 
 Examination of Railway Employees 185 
 
 Federal Jurisdiction Over Local Matters ..... 185 
 
 CHAPTEE YII. 
 
 PROHIBITION UPON THE STATES. 
 
 Regulation Not Always Restriction 188 
 
 Rule as to Foreign Corporations 190 
 
 A State May Not Prohibit Entrance to or Exit from its Territory 193 
 
 Conditions Imposed Upon Conduct of Interstate Business . . 195 
 
 CHAPTEE VIII. 
 
 TAXATION. 
 
 Taxation is Regulation . ....... 198 
 
 Validity of Tax Determined by its Effect 200 
 
 Conflict in the Decisions 202 
 
 Three Periods of Development . 304 
 
 The Rule of Apportionment 207 
 
 The Probable Rule 310 
 
 Situs as Affected by the Character of Regulation . , . 311 
 
 Taxation Upon Peksons in Teansit 212 
 
 Taxation Upon Peopeett in Teansit 331 
 
 Taxation Upon Peopbety Within the State .... 235 
 
 Taxation Upon Peopeety of Fedbeal Coepoeations . . 230 
 
 Taxation of Vessels 333 
 
 Taxation Upon Domestic Commbece 336 
 
 Taxation Upon Capital Stock 237 
 
 Capital Stock of Domestic Corporations May be Taxed . . 238 
 
 Tax Upon Capital Stock of Consolidated Corporations . . 338 
 
 Capital Stock of Foreign Corporations ..... 339 
 
OOITTENTS. Vll 
 
 Taxation of Transportation Companies 241 
 
 History of the Cases 244 
 
 Taxation Upon Telegraph and Telephone Properties . . . 245 
 
 Taxation of Rolling-stock 249 
 
 Taxation of Railroad Eight op Way 253 
 
 Taxation Upon BRiDaEs 256 
 
 Taxation of Express Companies 267 
 
 Taxation of Receipts ......... 260 
 
 License Taxes on Occupations ■ . .268 
 
 License Tax Upon Drummers ....... 277 
 
 License Tax Upon Peddlers ....... 279 
 
 Tax Upon Auctioneers 280 . 
 
 Taxation of Purchases and Sales 281 
 
 OHAPTEE IX. 
 REGULATION OF FREIGHTS AND FARES. 
 
 State Regulation of Domestic Rates 284 
 
 Federal Regulation of Interstate Rates 286 
 
 The Interstate Commerce Act 288 
 
 The Brimson Case 290 
 
 Rule in the Absence of Federal Statute 293 
 
 Regulation of Warehouse' Rates 294 
 
 Local Regulations Affecting Rates 294 
 
 CHAPTER X. 
 
 REGULATION OF CORPORATE FEANCHISEa 
 
 Stipulations in Charters 298 
 
 Regulations of Domestic Franchises ...... 802 
 
 CHAPTEE XL 
 
 THE FEDERAL LEGISLATIVE POWER. 
 
 The Preference Clause , 305 
 
 Control of Interstate Highways . 307 
 
 Federal Legislative Power May Not be Delegated ... 309 
 
 Internal Improvements 313 
 
 Federal Power to Incorporate a Bank ...... 315 
 
 Teade-maeks 316 
 
 The Federal Anti-Trust Law . 317 
 
 The Extent of the Prohibition . . . . '. ' " . .319 
 The Operation of the Act Includes Railroads . . . .321 
 
 Restraint of Trade by Labor Unions 328 
 
 The Line Between State and Federal Authority .... 826 
 
 Radical Nature of the Present Rtde 333 
 
 Injunctions to Restrain Violations of the Act .... 335 
 
 Relation of Wilson Act to State Statutes Against Monopolies . 335 
 
Vm CONTENTS. 
 
 Federal Police Regulation of Commeece . , . .337 
 
 Immigration 337 
 
 Adulterated Food 338 
 
 Inspection of Animals and Animal Products .... 388 
 
 CHAPTEE Xn. 
 
 RELATIONS WITH THE INDIAN TRIBES. 
 
 Definition of Indian Commerce 341 
 
 Indian Tribes Occupying Federal Territory .... 343 
 
 Indian Tribes Within a State 343 
 
 Nature of Federal Jurisdiction 845 
 
 Criminal Jurisdiction Over the Indians 346 
 
 Commerce Clause and Criminal Jurisdiction .... 847 
 
 The Civil and Criminal Jurisdiction of the Tribe . . . 348 
 
 Civil Jurisdiction Over Indian Trade 850 
 
 Indian Lands 353 
 
TABLE OF CASES. 
 
 Abercorn, The (1886), 26 Fed. 
 
 Rep. 877 . .' . . 143 
 Acquisition of Site for Public 
 
 Buildings (1886), 18 Op. 
 
 Atty. Gen. 353 . . 315 
 
 Adams v. Ulmer (1897), 39 Atl. 
 
 Eep. 347; 91 Me. 47 . . 158 
 Adams Express Co. v. Board 
 
 of Police (1883), 65 How. 
 
 Pr. 72 . . . 178, 193 
 Adams Express Co. v. Ken- 
 tucky (1897), 166 U. S. 17 
 
 1; 17 act. Rep. 537 . 259 
 Adams Express Co. v. Ohio 
 
 (1897), 166 U. S. 185 ; 17 S. Ct. 
 
 Rep. 604; j6 Am. & Eng. 
 
 Corp. Cas. (N. S.) 404 208, 240, 
 257, 259 
 Adams Express Co. v. Ohio 
 
 State Auditor (1897), 165 
 
 U. S. 194; 17 S. Ct. Rep. 305 208, 
 240, 243, 257, 259 
 Adams Express Co. v. Poe 
 
 (1894), 64 Fed. Rep. 9 . 359 
 Addison v. Saulnier (1861), 19 
 
 CaL 83 . . . . 153 
 JEtna Ins. Co. v. Aldrich (1863), 
 
 36N. Y. 93 . . .103 
 Agnes R Bacon, The (1883), 16 
 
 Fed. Rep. 480 . . , 141 
 Ah Cue, Ex parte (1894), 101 
 
 Cal. 197; 35 Pac. Rep. 556 192 
 Ah Fong, In re (1874), 3 Sawy. 
 
 144; 1 Fed. Cas. 318 58, 140, 148 
 
 Ah Kow V. Nunan (1879), 5 
 
 Sawy. 553; 13 Fed. Cas. 
 
 253 193 
 
 Alabama, G. & S. R. Co. v. 
 
 City of Bessemer (1896), 
 
 113 Ala. 668; 31 S. Eep. 64; 
 
 6 Am. & Eng. R. Cas. (N. 
 
 S.)410 . . . 337,374 
 Alameda, The (1887), (Neal v. 
 
 Alameda), 31 Fed. Rep. 
 
 366; 13 Sawy. 429 . 143, 150 
 Alameda, The, v. Neal (1887), 
 
 33 Fed. Rep. 331; 13 Sawy. 
 
 479 143 
 
 Alaska, The (1869), 3 Ben. 391; 
 
 1 Fed. Cas. 285 . . 141 
 Albany Bridge Case (1864), 3 
 
 Wall. 403 . 98, 115, 118 
 
 Albertson v. Wallace (1879), 
 
 81 N. C. 479 . . 376, 383 
 Alcalde, The (1887), 30 Fed. 
 
 Rep. 133; 13 Sawyer, 
 
 368 141 
 
 Aldrich v. ^tna Co. (1869), 8 
 
 Wall. 491 ... 103 
 Alexander v. State (1890), 86 
 
 Ga.346;13S.E. Rep. 408; 
 
 10 L. R. A. 859 . . 56 
 Alexander v. Wilmington & 
 
 Raleigh R R. Co. (1849), 3 
 
 Strobh. 594 . . 335, 307 
 Alexander v. United States 
 
 (1889, 1890), 25 Ct. of CL 
 
 Rep. 87, 329 . . . 314 
 
X 
 
 TABLE OF CASES. 
 
 Alleged Unlawful Rates and 
 
 Practices, Re (1897), 7 Int. 
 
 Com. Rep. 340 . . . 63 
 Allen V. Flood (1897), (House 
 
 of Lords), 11 Harvard L. 
 
 Review, 449 . . . 331 
 Allen V. Forrest (1894), 8 Wash. 
 
 700; 36 Pao. Rep. 971; 34 
 
 L. R. A. 606 . . .135 
 Allen V. Newberry (1858), 31 
 
 How. 344 - . . 97 
 
 Allen V. Tyson-Jones Buggy 
 
 Co. (1897), 91 Tex. 33; 40 
 
 S. W. Rep. 393, 714; 6 Am. 
 
 & Eng. Corp. Gas. (N. S.) 
 
 670 195 
 
 AUgeyer v. Louisiana (1897), 
 
 165 U. S. 578; 17 S. Ct. 
 
 437 . . . . 39, 47, 384 
 Alzena,The (1883), 14 Fed. Rep. 
 
 174 . . . . 141, 143 
 America, The (1867), 1 Lowell, 
 
 176; 1 Fed. Cas. 617 . 141 
 American Fertilizing Co. v. 
 
 Board of Agriculture of 
 
 N. C. et al. (1890), 43 Fed. 
 
 Rep. 609; 11 L. B. A. 179; 
 
 3 Int. Com. Rep. 533 33, 153, 
 305 
 American Harrow Co. v. 
 
 ShafiEer et al. (1895), 68 
 
 Fed. Rep. 750; 3 Am. & 
 
 Eng. Corp. Cas. (N. S.) 307; 
 
 5 Int. Com. Rep. 336 378, 379 
 American Ins. Co. v. Bales of 
 
 Cotton, Canter, Claimant 
 
 (1828), 1 Pet. 511 ... 343 
 American Rapid Tel. Co. v. 
 
 Hess (1891), 125N.Y.641; 
 
 36N. E. Rep.919;36N.Y. 
 
 St. Rep. 353; 31 Am. St. 
 
 Rep. 764; 13 L. R. A. 454; 
 
 39 Am. & Eng. Corp. Cas. 
 
 526 180 
 
 American Rapid Tel. Co. v, 
 
 Hess (1890), 58 Hun, 610; 
 
 13 N. Y. Supp. 536; 85 N. Y. 
 
 St. Rep. 606 . . . 180 
 
 American Starch Co. v. Bate- 
 man (Tex. Civ. App., 1893), 
 33 S. W. Rep. 771 . 178, 195 
 
 American Transportation Co. 
 V. Moore (1858), 5 Mich. 
 368 105 
 
 American Union Express Co. 
 V. St. Joseph (1877), 66 Mo. 
 675; 37 Am. Rep. 383 . 263 
 
 American Union Tel. Co. v. 
 Western Union TeL Co. 
 (1880), 67 Ala. 36; 43 Am. 
 Rep. 90 . . 46,178,196 
 
 Ames V. Union Pacific Ry. Co. 
 et aL (1894), 64 Fed. Rep. 
 165; 4 Int. Com. Rep. 835 385, 
 386 
 
 Anderson v. Louisville & N. 
 R. Co. (1894), 63 Fed. Rep. 
 46; 4 Int. Com. Rep. 764 87, 174 
 
 Anniston, City of, v. South- 
 ern Ry. Co. (1896), 113 Ala. 
 557; 20 S. Rep. 915; 9 Am. 
 & Eng. R. Cas. (N. S.) 36 . 374 
 
 Ann Ryan, The (1873), 7 Ben. 
 
 30; 1 Fed. Cas. 987 . . 144 
 
 Annon, Matter of (1888), 50 
 Hun, 413; 3 N. Y. Supp. 
 375; 18 N. Y. St. Rep. 45 . 394 
 
 Appeal Tax Court of Balti- 
 more City V. The Pullman 
 Palace Car Co. (1879), 50 
 Md. 453 . . . . 350 
 
 Armour Packing Co. v. Sny- 
 der (1897), 84 Fed. Rep. 136 51 
 
 Armstrong v. Galveston, H. 
 & S. A. R. Co. (Tex., 1898), 
 46 S. W. Rep. 33 . . 168 
 
 Armstrong et al. v. Galves- 
 ton, H. & S. A. R. Co. (1895), 
 29S. W. Rep. 1117; 5 Int. 
 Com. Rep. 347 . . 168 
 
 Arnold v. Yanders (1897), 56 
 Ohio St. 417; 47 N. E. 
 
TABLE OF OASES. 
 
 XI 
 
 Rep. 50; 60 Am. St. Eep. 
 
 753 194 
 
 Asher, Ex parte (1887), 33 Tex. 
 
 App. 683;5S. W. Rep.91; 
 
 59 Am. Eep. 783; 18 Am. 
 
 & Eng. Corp. Cas. 533 33, 378 
 Asher v. Texas (1888), 138 U. 
 
 a 139; 9S. Ct. Rep. 1; 33 
 
 Am. & Eng. Corp. Cas. 69; 
 
 3 Int. Com. Rep. 341 61, 374, 378 
 Ashley v. Ryan (1893), 49 Ohio 
 
 St. 504; BIN. E. Rep. 731; 
 37 Am. & Eng. Corp. Gas. 
 
 400 338 
 
 Ashley v. Ryan (1894), 153 U. 
 S. 436; 14 S. Ct. Rep. 865; 
 
 4 Int. Com. Rep. 664; 45 
 Am. & Eng. Corp. Cas. 474 338, 
 
 300, 301 
 Atlantic & P. R. Co. v. Lesueur 
 
 (Ariz., 1888), 19 Pac. Rep. 
 
 157; 87 Am. & Eng. R. 
 
 Cas. 368; 3 Int. Com. Rep. 
 
 189 333 
 
 Atlantic & P. R. Co. v. United 
 
 States (1896), 76 Fed. Rep. 
 
 186 387 
 
 Attorney-General v. Western 
 
 Union Tel. Co. (1887), 33 
 
 Fed. Rep. 139 . . . 348 
 Augusta S. R. Co. v. Wrights- 
 
 ville & T. R. Co. (1890), 74 
 
 Fed. Rep. 533 . . . 93 
 Aultman, Miller & Co. v. 
 
 Holder (1895), 68 Fed. Rep. 
 
 467 . . . 340,341,375 
 Avery v. Fox (1868), 1 Abb. 
 
 (U. S.) 346; 3 Fed. Cas. 
 
 345 110 
 
 Avery v. Indiana & Ohio Oil, 
 
 Gas & Mining Co. (1889), 
 
 ISOInd. 600;33N.E,Rep. 
 
 781 195 
 
 Bacon v. Arthur (1835), 4 
 Watts, 487 . . . . 113 
 
 Bagg Y. Wilmington, C. & A. 
 
 R. R. Co. (1891), 109 N. C. 
 
 379; 14 S. E. Eep. 79; 36 
 
 Am. St. Rep. 569; 14 L, E. 
 
 A. 596; 49 Am. & Eng. R. 
 
 Cas. 46; 3 Int. Com. Eep. 
 
 803 . . . . 183, 190 
 Bailey v. Philadelphia, Wilm. 
 
 & Bait. R. E. Co. (1846), 4 
 
 Harr. (Del.) 389; 44 Am. 
 
 Dec. 593 . . . 118, 119 
 Bailey Liquor Co. v. Austin 
 
 (1897), 83 Fed. Rep. 785 . 81 
 Bain v. Eichmond & D. E. R. 
 
 Co. (1890), 105 N. C. 363; 
 
 11 S. E. Rep. 311; 18 Am. 
 
 St. Rep. 913; 8 L. R. A. 
 
 399; 41 Am. & Eng. R. 
 
 Cas. 574; 3 Int. Com. Rep. 
 
 149 350 
 
 Bainbridge v. Sherlock (1868), 
 
 39 Ind. 364; 95 Am. Dec. 
 
 644 137 
 
 Baird v. Shore Line Ry. Co. 
 
 (1868), 6 Blatch. 376; 3 Fed. 
 
 Cas. 437 . . . . Ill 
 Baird v. St. Louis, L M. & S. 
 
 Ry. Co. (1890), 41 Fed. Rep. 
 
 593; 43 Am. & Eng. R. 
 
 Cas. 381; 4 Int. Com. Rep. 
 
 433 183 
 
 Baker v. Wise, Governor 
 
 (1861), 16 Gratt. 139 37, 307 
 
 Ballock V. State of Maryland 
 
 (1890), 73 Md. 1; 30 Atl. 
 
 Rep. 184; 35 Am. St. Rep. 
 
 559; 8 L. R. A. 671 . . 56 
 Baltimore, Mayor & City Coun- 
 cil of, V. Daniel StoU (1879), 
 
 53 Md. 435 . . 115, 118 
 Baltimore & Ohio R. R. Co. v. 
 
 Maryland (1874), 31 Wall. 
 
 456 . . . . 285,399 
 Baltimore & Ohio E. E. Co. v. 
 
 The State of Maryland 
 
 (1876), 45 Md. 596 . . 299 
 
xu 
 
 TABLE OF CASES. 
 
 Bamberger v. Schoolfleld 
 
 (1895), 160 U. S. 149; 16 8. 
 
 Ct. Rep. 335 ... 46 
 Bangor v. Smith (1891), 83 Me. 
 
 433; 33 AtL Rep. 379; 13 
 
 L. E. A. 686 . . . 196 
 Bank of Augusta v. Earle 
 
 (1839), 13 Pet. 519 . . 47 
 Bank of Commerce v. New 
 
 York City (1863), 3 Black, 
 
 630 200 
 
 Bank Tax Case (1864), 3 Wall. 
 
 300 . . . 300, 387, 348 
 Ban)?, Union, v. The State 
 
 (1836), 9 Yerger, 490 . 247 
 Banta v. McNeil (1871), 5 Ben. 
 
 74; 2 Fed. Cas. 764 . . 140 
 Barber, In re (1889), 39 Fed. 
 
 Rep. 641 . . . 56, 194 
 Bark Chusan, The (1848), 3 
 
 Story, 455 ; 5 Fed. Cas. 680 97, 
 337 
 Barnaby v. The State (1863), 
 
 31 Ind. 450 . 101, 103, 141 
 Barney v. Keokuk (1876), 94 
 
 U. S. 324 . . . . 97 
 Barrett v. Delano (Me., 1888), 
 
 14 Atl. Rep. 388 . . 177 
 Barron v. Burnside (1887), 131 
 
 U. S. 186; 7 S. Ct. 931; 17 
 
 Am. & Eng. Corp. Cas. 
 
 332; 1 Int. Com. Rep. 295 178, 
 196, 302 
 Basey et al. v. Gallagher (1868), 
 
 20 Wall. 670 . . . 117 
 Bateman v. Western Star Mill- 
 ing Co. (1893), 1 Tex. Civ. 
 
 App. 90; 30 S. W. Rep. 
 
 931; 4 Int. Com. Rep. 360 195 
 Baxter v. Thomas (1896), 4 
 
 Okla. 605; 46 Pac. Rep. 
 
 479 . . . . 275, 278 
 B^^an, The W. H. (Aldrich 
 
 V. The W. H. Beaman) 
 
 (1891), 45 Fed. Rep. 125 . 103 
 
 Beardsley v. New York, Lake 
 Erie & W. R. R. Co. (1897), 
 15 App. Div. (N. Y.) 351; 
 44 N. Y. Supp. 175 . . 184 
 
 Beardsley v. New York, L. E. 
 & W. R. Co. (1896), 40 N. 
 Y. Supp. 1077; 17 Misc. 
 Rep. 356 . . . . 184 
 
 Beck V. Flournoy Live Stock 
 & Real Estate Co. (1894), 
 27 U. S. App. 618; 13 C. 
 C. A. 497; 65 Fed. Rep. 30 353 
 
 Beine, In re (1890), 43 Fed. 
 
 Rep. 545 . . . 83, 83 
 
 Belfast, The (1868), 7 Wall. 634 98 
 
 Bell, In re (1895), 35 U. S. App. 
 379; 15 C. C. A. 360; 68 
 Fed. Rep. 183 . . . 371 
 
 Benedict v. Columbus Con- 
 struction Co. (1891), 49 N. 
 J.Eq. 33; 23 Atl. Rep. 485; 
 35 Am. & Eng. Corp. Cas. 
 637 195 
 
 Benedict v. Vanderbilt (1863), 
 1 Robt. (N. Y.) 194; 25 
 How. Pr. 209 . . . 143 
 
 Benjamin v. Manistee River 
 Improvement Co. (1880), 
 42 Mich. 628; 4 N. W. Rep. 
 483 . . . . 114, 135 
 
 Bennett v. American Express 
 Co. (1891), 83 Me. 236; 33 
 Atl. Rep. 159; 33 Am. St. 
 Rep. 774; 13 L. R. A. 33 . 61, 
 63, 150 
 
 Bennett v. Boggs (1880), 1 
 
 Baldw. 60; 3 Fed. Cas. 331 151 
 
 Best V. Staples (1874), 61 N. Y. 
 
 71 101 
 
 Beverwyck Brewing Co v. 
 Oliver (1897), 69 Vt. 333; 
 37 AtL Rep. 1110 . . 78 
 
 Biddle v. Commonwealth 
 (1835), 13 Serg. & R. (Pa.) 
 405 . . . . ^79,383 
 
TA3LB OF OASES. 
 
 XUl 
 
 Bigelow V. Nickerson (1895), 
 34U.S. App.361;17C. C. 
 A. 1; 70 Fed. Rep. 113; 30 
 L. R. A. 336 . . . 169 
 
 Black River Improvement Co. 
 V. The La Crosse Booming 
 & Transportation Co. et 
 al. (1883), 64 Wis. 659; 11 
 N. W. Rep. 443; 41 Am. 
 Rep. 66 . . . .136 
 
 Blanchard v. Brig Martha 
 Washington (1860), 1 Cliff. 
 463; 8 Fed. Cas. 639 . 103 
 
 Blindell v. Hagan (1893), 54 
 
 Fed. Rep. 40 . . . 335 
 
 Bloomington, City of, v. Bour- 
 land (1891), 137 III. 534; 37 
 N. E. Rep. 693; 31 Am. St. 
 Rep. 383; 3 Int. Com. Rep. 
 667 . , . . 375,378 
 
 Blue Jacket v. Com'rs of 
 Johnson County (1865), 3 
 Kan. 399 . . . . 345 
 
 Bluthenthal v. Southern R. 
 
 Co. (1897), 84 Fed. Rep. 930 79 
 
 Board of Assessors of the Par- 
 ish of Orleans v. Pull- 
 man's Palace Car Co. 
 (1894), 33 U. S. App. 180; 
 8 CCA, 490; 60 Fed. Rep. 
 37 253 
 
 Board of Com'rs of Pilots v. 
 Pacific Mail Steamship 
 Co. (1873), 53 N. Y. 609 143, 186 
 
 Board of Com'rs, etc. v. Pidge 
 
 (1854), 5 Ind. 13 116, 118, 135 
 
 Board of Harbor Com'rs v. 
 Pashley (1883), 19 S. C. 315; 
 3 Am. & Eng. Corp. Cas. 
 495 145 
 
 Board of Hay Inspectors v, 
 Pleasants (1871), 33 La. 
 Ann. 349 . . . . 154 
 
 Board of Selectmen v. Spald- 
 ing (1858), 8 La. Ann. 87 137 
 B 
 
 Boardman v. L. S. & M. S. R. 
 
 Co. (1881), 84 N. Y. 157; 4 
 
 Am. & Eng. R. Cas. 265 . 303 
 Bode V. The State (1848), 7 Gill 
 
 (Md.),336 . . 67,178 
 
 Bogan V. State (1887), 84 Ala. 
 
 449; 4 S. Rep. 355 . 276, 377 
 Bogart V. The State of Ohio 
 
 (1888), 3 Int. Com. Rep. 
 
 397; 30 Gin. Law Bui. 458 161 
 Boggs V. Commonwealth 
 
 (1882), 76 Va. 989 . . 151 
 Bohn Manufacturing Co. v. 
 
 Hollis (1893), 54 Minn. 333; 
 
 55 N. W. Rep. 1119; 40 
 
 Am. St. Rep. 319; 21 L, R. 
 
 A.. 337 . . . .331 
 Borough of Danville v. Lie- 
 
 berman (1895), 16 Pa. Co. 
 
 Ct. Rep. 394; 4 Pa. Dist. 
 
 Rep. 475 . . . 376, 277 
 Bowlby V. Shively (1892), 23 
 
 Oreg. 410; 30 Pac. Rep. 
 
 154 135 
 
 Bowman v. Chicago & North- 
 western Ry. Co. (1888), 125 
 
 U. S. 465; 8 S. Ct. Rep. 689, 
 
 1063; 23 Am. & Eng. Corp. 
 
 Cas. 336; 1 Int. Com. Rep. 
 
 833 34, 38, 33, 49, 56, 58, 68, 193, 
 205,234 
 Boyer, Ex parte (1884), 109 U. 
 
 S. 029; 3 S. Ct Rep. 434 . 100 
 Boyer v. Dively (1875), 58 Mo. 
 
 510 348 
 
 Boykin & Lang v. Shaffer 
 
 (1858), 13 La. Ann. 129 100, 113 
 Bradford v. Floyd (1883), 80 
 
 Mo. 207 . . . .171 
 Bradford, City of, v. Postal 
 
 Telegraph Co. (1891), 11 
 
 Ry. & Corp. L. J. 54 249, 275 
 Bradley, Adm'r, v. Northern 
 
 Transportation Co. (1864), 
 
 15 Ohio St. 553 104, 169, 186 
 
XIV 
 
 TABLE OB" OASES. 
 
 Biradshaw, Thomas P., v. H, 
 Fillmore Lankford, Clerk, 
 etc. (1891), 73 Md. 438; 21 
 Atl. Rep. 66; 25 Am. St. 
 Eep. 602; 11 L. R. A. 583 150 
 
 Branch v. W. & W. R. Co. 
 
 (1877), 77 N. C. 347 . ' . 183 
 
 Brass v. North Dakota ex rel. 
 Stoeser (1894), 153 U. S. 
 391; 14 S. Ct. Rep. 857; 4 
 Int. Com. Rep. 670 385, 394 
 
 Brechbill v. Randall (1885), 
 108 Ind. 538; 1 N. E. Rep. 
 362; 2 W. Rep. 731; 52 
 Am. Eep. 695 . . . 54 
 
 Brennan v. Titusville (1894), 
 153U. S.398;14S.Ct.Rep. 
 839; 4 Int. Com. Rep. 658 61, 
 374, 378, 381 
 
 Brett V. Ebel (1898), 51 N. Y. 
 
 Supp. 573 ... 334 
 
 Bridge Co. v. Telegraph Co. 
 (1887), 36 Kan. 113; 13 Pac. 
 Eep. 535 . . . 46, 111 
 
 Bridge Co. v. United States 
 
 (1881), 105 U. S. 470 . Ill 
 
 Brig Aurora t. United States 
 
 (1813), 7 Cranoh, 383 . 810 
 
 "Bright Star," The (1868), 
 Woolw. 266; 4 Fed. Cas. 
 139 . . . . 91,103 
 
 Brimmer v. Rebman(1891), 138 
 U. S. 78; 11 S. Ct. Rep. 
 213; 3 Int. Com. Rep. 485 54, 
 58, 150, 194 
 
 Brin v. Wachusetts Shirt Co. 
 (Tex. Civ. App., 1897) 43 
 S. W. Rep. 295 . . 196 
 
 Brock way v. American Ex- 
 press Co. (Mass., 1898), 50 
 N. E. Rep. 626 . . 167 
 
 Brockway v. American Ex- 
 press Co. (1897), 168 Mass, 
 257; 47 N. E. Rep. 87 , 167 
 
 Broeck v. Barge John M. 
 Welch (1880), 3 Fed. Eep. 
 364; 18 Blatch. 54 . 145, 150 
 
 Brooks V. Cedar Brook, etc. 
 Co. (1889), 83 Me. 17; 19 
 AtL Rep. 87; 7 L. R. A. 
 460 136 
 
 Brown, Ex parte (1891), 48 
 
 Fed. Rep. 435 140, 202, 311, 227, 
 328, 281, 383 
 
 Brown v. Chadbonrne (1849), 
 
 81 Me. 9; 50 Am. Dec. 641 100 
 
 Brown v. The Commonwealth 
 
 (1817), 3 S. & R. 373 . 113 
 
 Brown v. Houston (1885), 114 
 U. S. 633; 5 S. Ct. Rep. 
 1091 28,66,68,153,303,224,235, 
 226, 237 
 
 Brown v. Houston, State Tax 
 Collector (1881), 33 La. 
 Ann. 843; 39 Am. Eep. 384 234 
 
 Brown v. The State of Mary- 
 land (1837), 12 Wheaton, 
 419 17, 48, 60, 66, 84, 85, 193, 
 234 336 
 
 Brown v. Memphis & C. R. Co. 
 
 (1880), 5 Fed. Rep. 499 174, 177 
 
 Brown & Co. v. Adair & Mc- 
 Carthy Bros. (1894), 104 
 Ala. 653; 16 S. Rep. 439 154, 157 
 
 Budd V. New York (1893), 143 
 U. S. 517; 12 S. Ct. Rep. 
 468; 36 Am. & Eng. Corp. 
 Cas. 31; 4 Int. Com. Eep. 
 45 . . . . 385,394 
 
 Buffalo & Erie E. R. Co. v. 
 Commonwealth (1871), 3 
 Brewst. (Pa.) 386 . . 263 
 
 Buffalo R. & P. E Co. v. Lav- 
 ery(1894), 75Hun, 396;27 
 N. Y. Supp. 443; 57 N. Y. 
 St. Rep. 686 . . , 354 
 
 BuUard v. Northern Paciflo 
 E. R. Co. (1890), 10 Mont. 
 
TABLE OF OASES. 
 
 XV 
 
 168; 25 Pac. Rep. 120; 11 
 
 L. E. A. 346; 3 Int. Com. 
 
 Rep. 536; 45 Am. & Eng. 
 
 E. Cas. 234 .. , 287 
 Burdick v. The People (1894), 
 
 149 111. 600; 36 N. E. Rep. 
 
 948; 41 Am. St. Rep. 329; 
 
 24L.R.A.153; 58 Am. & 
 
 Eng. R. Cas. 38 . . 183 
 Burdick v. The People (1894), 
 
 149 111. 611; 36 N. E. Rep. 
 
 953 183 
 
 Burgess v. Western Union 
 
 Tel. Co. (Tex., 1898), 46 
 
 S. W. Rep. 794 . . 169 
 Burlington, C. R. & N. Ry. Co. 
 
 V. Day (1891), 83 Iowa, 313; 
 
 48 N. W. Rep. 98; 31 Am. 
 
 St. Rep. 477; 13 L. R. A. 
 
 436; 3 Int. Com. Rep. 584; 
 
 45 Am. & Eng. R. Cas. 
 
 391 89 
 
 Burlington & Henderson 
 
 County Ferry Co. v. Davis 
 
 (1878), 48 Iowa, 133; 30 Am. 
 
 Rep. 390 . . . 160,300 
 Burlington Lumber Co. v. 
 
 Willetts (1886), 118 111. 559; 
 
 9 N. E. Rep. 354; 16 Am. 
 
 & Eng. Corp. Cas. 160 . 334 
 Burroughs v. Whit warn (1886), 
 
 59 Mich. 379; 36 N. W. 
 
 Rep. 491 . . . . 134 
 Burrows v. Delta Transporta- 
 tion Co. (1895), 106 Mich. 
 
 583;64N. W.Rep. 501;29 
 
 L. R. A. 468 . . 103, 185 
 Burt V. Merchants' Ins. Co. 
 
 (1871), 106 Masa 356; 8 Am. 
 
 Rep. 339 . . . . 315 
 Butin, Ex parte (1889), 38 Tex. 
 
 App. 804; 18 S. W. Rep. 10 380 
 Butler V. Boston & Savannah 
 
 Steamship Co. (1889), 130 
 
 U. S. 537 ; 9 S. Ct. Rep. 613 97, 
 106, 169 
 
 Butler V. Chambers (1886), 36 
 
 Minn. 69; 30 N. W. Rep. 
 
 308 .... 195 
 
 Butler V. The State (1855), 6 
 
 Ind. 165 . . . 113, 115 
 Butner v. W. U. Tel. Co. (1894), 
 
 2 Okla. 334; 37 Pac. Rep. 
 
 1087; 48 Am. & Eng. Corp. 
 
 Cas, 376; 4 Int. Com. Rep. 
 
 770 183 
 
 Caldwell v. The State (1833), 
 
 1 Stew. & Port. (Ala.) 337 348 
 
 Caldwell v. St. Louis Perpet- 
 ual Ins. Co. (1846), 1 La. 
 Ann. 85 . . . .104 
 
 California v. Central Pac. Ry. 
 Co. (1888), 127 U. S. 1; 8 
 S. Ct. Rep. 1073; 33 Am. & 
 Eng. R. Cas. 451; 2 Int. 
 Com. Rep. 153 233, 396, 301, 314 
 
 Camden & Amboy Railroad 
 & Transportation Co. v. 
 Briggs (1850), 22 N. J. Law, 
 633 399 
 
 Campbell et al., R. R. Com'rs, 
 V. C, M. & St. P. Ry. Co. 
 (1893), 86 Iowa, 587; 53 
 N. W. Rep. 351; 55 Am. & 
 Eng. R. Cas. 487; 17 L. R. 
 A, 443; 4 Int. Com. Rep. 
 203 89 
 
 Canada Southern Ry. Co. v. 
 International Bridge Co. 
 (1881), 8 Fed. Rep. 190; 2 
 Am. & Eng. R. Cas. 637 111, 
 387, 309 
 
 Canal Commissioners v. W. T. 
 & Looks Co. (1877), 6 Greg. 
 319 . . . . 114,185 
 
 Cannon v. New Orleans (1874), 
 
 20 Wall. 577 145, 149, 193, 325 
 
 Cannon v. City of New Or- 
 leans (1873), 27 La. Ann. 16 144 
 
 Cantini v. Tillman (1893), 54 
 
 Fed. Rep. 969 . . ..80 
 
XVI 
 
 TABLE OF CASES. 
 
 Cardwell v. Amer. R. Br. Co. 
 
 (1884), 19 Fed. Rep. 563 . 118 
 Cardwell v. American Bridge 
 
 Co. (1885), 113 U. S. 205; 5 
 
 S. Ct. Rep. 423 28, 110, 115, 118, 
 119, 133 
 Carlisle, Co. Treas., for use, 
 
 etc., Y. Pullman Palace 
 
 Car Co. (1885), 8 Colo. 830; 
 
 7 Pac. Rep. 164; 54 Am. 
 
 Rep. 553 . . . . 352 
 Carondelet Canal & Naviga- 
 tion Co. V. Parker (1877), 
 
 29 La. Ann. 430; 29 Am. 
 
 Rep. 339 . . . . 113 
 Carpenter v. G. T. Ry. Co. 
 
 (1881), 72 Me. 388; 39 Am. 
 
 Rep. 340; 3 Am. & Eng. 
 
 R.Cas. 433 . . .184 
 Carrey v. Spencer (1895), 36 
 
 N. Y. Supp. 886; 72 N. Y. 
 
 St. Rep. 108; 5 Int. Com. 
 
 Rep. 636 . . . 87,174 
 Carrier v. Gordon (1871), 21 
 
 Ohio St. 605 . . 61, 62, 325 
 Carroll v. Campbell (1892), 110 
 
 Mo. 557; 19 S. W. Rep. 809 160, 
 300 
 Carroll v. Campbell (1891), 108 
 
 Mo. 550; 17S.W. Rep.884; 
 
 38 Am. & Eng. Corp. Cas. 
 
 546 300 
 
 CarroUton, City of, v. Bazzette 
 
 (1896), 159 111. 284; 42 N. E. 
 
 Rep. 837; 31 L. R. A. 522 280 
 Carson River Lumbering Co. 
 
 V. Patterson (1867), 33Cal. 
 
 334 . . . 65, 193, 233, 225 
 Carstairs v. O'Donnell (1891), 
 
 154 Masa 357 ; 28 N. E. Rep. 
 
 271 78 
 
 Carter v. Thurston (1877), 58 
 
 N. H. 104; 42 Am. Rep. 584 100 
 Carton & Co. v. Illinois Cen- 
 tral R. R Co. (1883), 59 
 
 Iowa, 148; 13 N. W. Rep, 
 
 67; 44 Am. Rep. 673; 6 Am. 
 
 & Eng, R Cas. 305 . . 284 
 Gary v. Eureka Springs Ry. 
 
 Co. (1897), 7 Int. Com. Rep. 
 
 396 390 
 
 Cass County v. C, B. & Q. R. R. 
 
 Co. (1889), 35 Neb. 348; 41 
 
 N. W. Rep. 346; 3 L. R. A, 
 
 188 ; 37 Am. & Eng. R. Cas. 
 
 410 114 
 
 Central Pacific R. R. Co. v. Cal- 
 ifornia (1896), 163 U. S. 
 
 91 ; 16 S. Ct. Rep. 766 373, 398 
 Central R. R Co. v. State 
 
 Board of Assessors (1886), 
 
 49 N. J. L. 1; 7 AtL Rep. 
 
 306 . . . . 349,350 
 Central Union Telephone Co. 
 
 V. State ex rel. Falley 
 
 (1889),118Ind.l94;19N.E. 
 
 Rep. 604; 10 Am. St. Rep. 
 
 114; 25 Am. & Eng. Corp. 
 
 Cas. 481 . . . 46, 385 
 Challiss V. Davis (1874), 56 Mo. 
 
 25 . . , . 158, 160, 300 
 Chambers v. Church (1884), 14 
 
 R. L 398; 51 Am. Rep. 410 151 
 Chambers v. The "S. S. Cly- 
 
 mene" (1881), 14 Phila. 
 
 603; 38 Leg. Int. 384 141, 142 
 Chan Gun v. United States 
 
 (1896), 9 App. Cas. (D. C.) 
 
 290 304 
 
 Chapman v. Miller (1844), 3 
 
 Spears (S. C), 769 . 143, 150 
 Charge to Grand Jury, In re 
 
 (1894), 63 Fed. Rep. 828; 4 
 
 Int. Com. Rep. 781 . 309, 335 
 Charles E. Wisewall, The 
 
 (1896), 74 Fed. Rep. 803 321, 326 
 Charles E. Wisewall, The 
 
 (1898), 86 Fed. Rep. 671 321, 326 
 Charles A. Sparks, The; Agnes 
 
 R Bacon, The (1883), 16 
 
TABLE OF OASES. 
 
 SVU 
 
 Fed. Rep. 480; 13 W.N. C. 
 
 300 141 
 
 Charlotte, Columbia & Au- 
 gusta R. R. Co. V. Gribbea 
 
 (1893), 143 U. S. 386; 13 
 
 S. Ct. Rep. 355 . . 268 
 Chase, The (1883), 14 Fed-Tlep. 
 
 854 141 
 
 Cheboygan Lumber Co. v. 
 
 Delta Transportation Co. 
 
 (1894), 100 Mich. 16; 58 
 
 N. W. Rep. 680 . . 103 
 Cherokee Kation v. Southern 
 
 Kansas Ry. Co. (1890), 135 
 
 U.S.641;10S.Ct.Rep.985; 
 
 44 Am. & Eng. R. Cas. 26 314 
 Cherokee Nation v. Southern 
 
 Kansas R. Co. (1888), 33 
 
 Fed. Rep. 900 . . . 314 
 Cherokee Nation v. The State 
 
 of Georgia (1831), 5 Pet. 1 342, 
 343 
 Cherokee Tobacco, The (1870), 
 
 11 Wall. 616 . . .350 
 Chesapeake & Ohio Canal Co. 
 
 V. Union Bank (1830), 4 
 
 Cranch, C. C. 75; 5 Fed. 
 
 Cas. 570 . . . . 314 
 Chiapella v. Brown (1859), 14 
 
 La. Ann. 185 . . . 158 
 Chicago, City of, v. Law (1893), 
 
 144 111. 669; 38 N. E. Rep. 
 
 855; 43 Am. & Eng. Corp. 
 
 Cas. 238 . . . . 110 
 Chicago, City of, v. McGinn 
 
 (1869), 51 111. 266; 3 Am. 
 
 Rep. 295 . 115, 118, 131, 125 
 Chicago & Alton R. R. Co. v. 
 
 Erickson, use, etc. (1879), 
 
 91 IlL 613; 33 Am. Rep. 70 194 
 Chicago & Alton R. R. Co. v. 
 
 Gasaway (1874), 71 111. 570 171 
 Chicago & Alton R. R. Co. v. 
 
 The People, use, etc. (1883), 
 
 105111. 657; 13Am.& Eng. 
 
 B. Cas. 156 .. . 184 
 
 Chicago, B. & Q. R, Co. v. Gar- 
 diner (1897), 51 Neb. 70 f 
 
 70 N. W. Rep. 508; 6 Am. 
 
 & Eng. R. Cas. (N. S.) 584 167 
 Chicago, B. & Q. R. R. Co. v. 
 
 Iowa (1876), 94 U. S. 154 , 384, 
 285 
 Chicago, B. & Q. R. R. Co. v. 
 
 Jones (1894), 149 111. 361; 
 
 87 N. E. Rep. 247; 41 Am. 
 
 St. Rep. 278; 24 L. R. A. 
 
 141; 61 Am. & Eng. R. 
 
 Cas. 78; 4 Int. Com. Rep. 
 
 683 285 
 
 Chicago, Milwaukee & St. P. 
 
 Ry. Co. V. Becker (1887), 
 
 33 Fed. Rep. 849 . 95, 185 
 Chicago, Milwaukee & St. P. 
 
 R. R. Co. V. Minnesota 
 
 (1890), 184 U. S. 418; 10 S. 
 
 Ct. Rep. 463, 703; 42 Am. 
 
 &Eng. R. Cas. 385; 8 Int. 
 
 Com. Rep. 309 . . . 385 
 Chicago, Milwaukee & St. P. 
 
 R. R. Co. V. Solan (1898), 
 
 169U.S.183;18S.Ct.Rep. 
 
 389 . . . . 163, 168 
 Chicago & N. W. Ry. Co. v. 
 
 Dey (1888), 35 Fed. Rep. 
 
 866; 37 Am. & Eng. R. 
 
 Cas. 600; 1 L. R. A. 744; 
 
 2 Int. Com. Rep. 335 285, 309 
 Chicago & N. W. Ry. Co. v. 
 
 Osborne; Same v. Junot 
 
 et aL (1892), 52 Fed. Rep. 
 
 913; 4 Int. Com. Rep. 357. 166 
 Chicago, R. L & P. R. Co. v. 
 
 Chicago & A. R. Co. (1890), 
 
 2 Int. Com. Rep. 721 ; 3 Int. 
 
 Com. Comm. Rep. 450 , 63 
 Chicago, R. L & P. Ry. Co. v. 
 
 Hubbell (1894), 54 Kan. 
 
 233; 38 Pac. Rep. 366 183, 389 
 Chicago, St. L. & Pittsburgh 
 
 R. R. Co. V. Wolcott (1895), 
 
 141Ind. 267; 39 N. E. Rep. 
 
XYIU 
 
 TABLE OF CASES. 
 
 451; 50 Am. St. Rep. 320; 
 61 Am. & Eng. R, Cas. 135 166, 
 295 
 
 Chilvers v. People (1862), 11 
 
 Mich. 43 . . . .160 
 
 Chinese Exclusion Case, The 
 (1889), 130 U.S. 581; 9 act. 
 Rep. 623 . . . 221, 304 
 
 Chisolm V. Caines (1894), 67 
 
 Fed. Rep. 285 . . . 98 
 
 Chosen Freeholders of Hud- 
 son County v. State (1853), 
 24 N. J. L." 718 . . 159 
 
 Christian, In re (1889), 39 Fed. 
 
 Rep. 636 . . . . 194 
 
 Church of the Holy Trinity v. 
 United States (1892), 143 
 U. S. 457; 13 S. Ct. Rep. 
 511 . . . . 804,337 
 
 Chy Lung v. Freeman (1875), 
 
 92 U. S. 375 . 58, 193, 219, 234 
 
 Cincinnati, N. O. & Texas Pac. 
 Ry. Co. V. Interstate Com- 
 merce Comm. (1896), 163 
 U. S. 184; 16 S. Ct. Repw 
 700; 4 Am. & Eng. R. Cas. 
 (N. S.) 238; 5 Int. Com. 
 Rep. 391 . . . 91,94 
 
 Cisco V. Roberts (1867), 86 N. Y. 
 
 293 143 
 
 Cisco V. Roberts (1860),6 Bosw. 
 
 (N. Y.)494 . . .143 
 
 Citizens' Ins. Co., The, v. Par- 
 sons (1879), 4 Can. S. C. 315 47 
 
 Citizens' Ins. Co. of Canada 
 V. Parsons (1881), 7 L. R. 
 App. Cas. 96 . . .47 
 
 City of (see name of city). 
 
 City Council v. Ahrens (1849), 
 
 4 Strobh. (S. 0.) 241 83, 85 
 
 City Council v. Rogers (1833), 
 2 McCord (S. C), 495; 13 
 Am. Deo. 751 . . . 154 
 
 City of Salem, The (1889), 37 
 Fed. Rep. 846; 13 Sawy. 
 
 607; 2L.R. A. 380; 3 Int. 
 Com. Rep. 418 . . 104 
 
 City of Salem, The (1889), 38 
 
 Fed. Rep. 762 . . . 104 
 
 Civil Rights Cases; United 
 States V. Stanley, and 
 other cases (1883), 109 U. 
 S. 3; 3 S. Ct. Rep. 18 . 186 
 
 Clark V. Board of Health 
 
 (1878), 30 La. Ann. 1351 . 154 
 
 Clarke v. Central Railroad & 
 Banking Co. of Georgia 
 (1892),50Fed. Rep. 838;15 
 L. R. A. 683 . . . 303 
 
 Clements v. Town of Casper 
 (1894),4Wyo. 494;35Pac. 
 Rep. 473; 46 Am. & Eng. 
 Corp. Cas. 607 . . 278 
 
 Cleveland, Cincinnati, Chi- 
 cago & St. L. R Co. V. 
 Backus (1894), 154 U. S. 
 489; 14 S. Ct. Rep. 1132; 4 
 Int. Com. Rep. 677 . . 357 
 
 Cleveland, Cincinnati, Chi- 
 cago & St. L. R. Co. V. 
 Backus, Treas. (1893), 183 
 Ind.513;83N.E.Rep.431; 
 18 L. R. A. 739 . . 257 
 
 Clinton Bridge, The (1870), 10 
 
 Wall. 454 .. . Ill 
 
 Clinton Bridge, The (1867), 
 Woolw. 150; 5 Fed. Cas. 
 1060 . . . .111 
 
 Clover, The (1869), 1 Lowell, 
 
 342; 5 Fed. Cas. 1095 . 143 
 
 Clyde S. S. Co. v. City Council 
 of Charleston (1896), 76 
 Fed. Rep. 46 . . . 274 
 
 Clymene, The (1881), 9 Fed. 
 Rep. 164; 14 Phila. 603; 38 
 Leg. Int. 384 . . 141, 143 
 
 Clymene, The (1882), 13 Fed. 
 
 Rep. 346 . . . 141, 143 
 
 Coe V. Errol (1883), 63 N. H. 
 
 303 . . . . 328, 324 
 
TABLE OF OASES. 
 
 XIX 
 
 Coe Y. Errol (1886), 116 U. S. 
 
 517; 6 S. Ct. Rep. 475 61, 62, 
 224, 225, 250 
 Coit iS; Co. V. Sutton (1894), 102 
 
 Mich, 824; 60 N. W. Rep. 
 
 690; 47 Am. & Eng. Corp. 
 
 Cas. 509;25L. R.A.819;4 
 
 Int. Com. Rep. 768 195, 241, 
 278 
 Cole V. Randolph (1879) 31 La. 
 
 Ann. 535 . . . 279, 280 
 Coleman v. Hudson River 
 
 Bridge Co. (1859), 4 Blatch. 
 
 395; 22 Fed. Cas. 120 . 115 
 Collins V. City of Louisville 
 
 (1841), 2 B. Mon. 134 154, 156 
 Collins V. Hills (1889), 77 Iowa, 
 
 181; 41 N. "W. Rep. 571; 
 
 3 L. E. A. 110 . . 71, 72, 82 
 Collins V. New Hampsliire 
 
 (1898), 171 V. S. 30; 18 S. 
 
 Ct. Rep. 768 . 52, 189, 194 
 
 Columbia Delaware Bridge 
 
 Co. V. Geisse (1875), 88 N. 
 
 J. L. (9 Vroom), 89 . 159, 160 
 Columbus Ins. Co. v. Curten- 
 
 ius (1854), 6 McLean, 209; 
 
 6 Fed. Cas. 187 , . 122 
 Columbus Ins. Co. v. Peoria 
 
 Bridge (1853), 6 McLean, 
 
 70; 6 Fed. Cas. 191 115, 116, 122 
 Columbus Southern R. E. Co. 
 
 V. Wright (1892), 89 Ga. 
 
 574; 15 S. E. Rep. 293; 54 
 
 Am. & Eng. E. Cas. 255 . 254 
 Columbus Southern Ry. Co. 
 
 V. Wright (1894), 151 U. S. 
 
 470; 14 S. Ct. Eep. 396 . 254 
 Comer v. Columbia, N. & L, 
 
 E. Co. (S. C, 1898), 29 S. 
 
 B. Eep. 637 . . .176 
 Commissioners v. Board of 
 
 Public Works (1884), 39 
 
 Ohio St. 628 . . 115, 125 
 Commissioners of Homo- 
 
 cbitto River v. Withers 
 
 (1855), 29 Miss. 21; 64 Am. 
 Deo. 126 . . . . 113 
 
 Commissioners of Immigra- 
 tion V. Brandt (1874), 26 
 La. Ann. 29 . . 56, 185 
 
 Commissioners of Parks and 
 Boulevards of Detroit v. 
 Common Council of De- 
 troit (1890), 80 Mich. 663; 
 45, N. W. Rep. 508; 29 
 Am. & Eng. Corp. Cas. 
 447 . . . . 111,312 
 
 Commissioners of Pilotage of 
 Mobile Bay v. Steamboats 
 Cuba, Swan and J. H. Bell 
 (1856), 28 Ala. 185 . . 103 
 
 Commissioners of the Sink- 
 ing Fund V. Green & Bar- 
 ren River Navigation Co. 
 (1880), 79 Ky. 73; 4 Am. & 
 Eng. Corp. Cas. 36 . . 114 
 
 Commonwealth v. American 
 Dredging Co. (1888), 123 
 Pa. St. 386; 15 AtL Eep. 
 443; 9 Am. St. Eep. 116; 
 1 L. R. A. 237; 25 Am. & 
 Eng. Corp. Cas. 313 . 232, 234 
 
 Commonwealth v. Bishman 
 (1891), 138 Pa. St. 639; 21 
 AtL Rep. 12 . . 82, 84 
 
 Commonwealth v. Breed 
 
 (1827), 4 Pick. 460 . . 116 
 
 Commonwealth v. Buffalo & 
 Erie R. E. Co. (1870), 2 
 Pearson (Pa.), 376 . . 263 
 
 Commonwealth v. Calhane 
 (1891), 154 Mass. 115; 27 
 N. E. Eep. 881 . . 81, 143 
 
 Commonwealth V. Chesapeake 
 & O. E. Co. (Ky., 1897), 40 
 S. W. Rep. 250 . , 170 
 
 Commonwealth V. Chesapeake 
 & O. E. Co. (1890, Lynch- 
 burg, Va., Corporation 
 Court), 3 Int. Com. Rep. 
 398 178 
 
XX 
 
 TABLE OF OASES. 
 
 Commonwealth v. Clapp 
 
 (1855), 5 Gray, 97 . . 73 
 
 Commonwealth v. Covington 
 & C. Bridge Co. ; Same v. 
 Covington & C. EL Ey. & 
 Bridge & Transfer Co.; 
 Covington & C. Bridge Co. 
 V. Commonwealth (Ky., 
 1893), 31 S. W. Eep. 1043; 
 54 Am. & Eng. E. Cas. 
 461; 14 Ky. L. Eep. 836 . 118 
 
 Commonwealth v. Delaware, 
 Lackawanna & Western 
 Ey. Co. (1866), 1 Pearson 
 (Pa.), 356 . . .333 
 
 Commonwealth v. D. & H. 
 Canal Co. (1893), 150 Pa. 
 St. 345; 34 Atl. Eep. 599 . 239 
 
 Commonwealth v. Delaware 
 
 6 Hudson Canal Co. (1888, 
 Com. Pleas, Dauphin Co., 
 Pa.), 31 W. N. C. 406 63, 360, 
 
 366 
 Commonwealth v. Delawfire, 
 
 Lackawanna & Western 
 
 E. Co. (1888), 31 W. N. C. 
 
 413 366 
 
 Commonwealth v. Erie Ey. 
 
 Co. (1864), 1 Pearson (Pa.), 
 
 345 333 
 
 Commonwealth v. Evans 
 
 (1883), 133 Mass. 11 . . 58 
 Commonwealth v. Farren 
 
 (1864), 9 Allen, 489 . . 58 
 Commonwealth v. Gardner 
 
 (1890), 133 Pa. St. 384; 19 
 
 Atl. Eep. 550; 35 W. N. C. 
 
 463; 19 Am. St. Eep. 645; 
 
 7 L. E. A. 666 . . 73, 380 
 Commonwealth v. Gloucester 
 
 Ferry Co. (1881), 98 Pa. St. 
 
 105 345 
 
 Commonwealth v. Hall (1880), 
 138 Mass. 410; 35 Am. Eep. 
 387 . . . . 150, 153 
 
 Commonwealth v. Harmel & 
 Coon (1895), 166 Pa. St. 89; 
 30 Atl. Eep. 1036; 36 W. 
 N. C. 1; 37 L. E. A. 388; 5 
 Int. Com. Eep. 89 376, 379, 380 
 
 Commonwealth v. Holbrook 
 
 (1865), 10 Allen, 300 . 67 
 
 Commonwealth v. Holt (1888), 
 146 Mass. 38; 16 N.E. Eep. 
 380 58 
 
 Commonwealth v. Housatonio 
 E. E. Co. (1887), 143 Mass. 
 264; 9 N. E. Eep. 547; 27 
 Am. & Eng. E. Cas. 31 . 284 
 
 Commonwealth v. Huntley 
 (1893), 156 Mass. 336; 30 
 N. E. Eep. 1127; 15 L. E. 
 A. 839 . . . 38, 73, 195 
 
 Commonwealth v. Kimball 
 (1837), 34 Pick. 359; 35 
 Am. Dec. 536 . . . 84 
 
 Commonwealth v. King (1889), 
 150 Mass. 331; 32 N. E. 
 Eep. 905; 5 L. E. A. 536 . 99 
 
 Commonwealth v. Lehigh V. 
 E. Co. (1889), 139 Pa. St. 
 308; 18 AtL Eep. 135 90,366,368 
 
 Commonwealth v. Manchester 
 (1890), 153 Mass. 330; 25 
 N.E. Eep. 113; 23 Am. St. 
 Eep. 830 ; 9 L. E. A. 336 151, 152 
 
 Commonwealth v. Mononga- 
 hela Navigation Co. (1870), 
 3 Pearson (Pa.), 373 . 231 
 
 Commonwealth v. Myer (1896), 
 93 Va. 809; 33 S. E. Eep. 
 915; 31 L. E. A. 379 , 380 
 
 Commonwealth v. New Bed- 
 ford Bridge (1854), 3 Gray, 
 389 118 
 
 Commonwealth v. Newhall 
 (1895), 164 Mass. 338; 41 
 N. E. Eep. 647 . . . 380 
 
 Commonwealth v. New York, 
 P. & O. E. Co. (1891), 145 
 
TABLE OF CASES. 
 
 XXI 
 
 Pa. St. 38; 23 Atl. Eep. 
 
 213; 48 Am. & Eng. R. 
 
 Cas. 633 , . . . 260 
 Commonwealth v. Paul (1890), 
 
 10 Pa. Co. Ct. Rep. 333 194,195 
 Commonwealth v. Paul (1890), 
 
 9 Pa. Co. Ct. Rep. 196 194, 195 
 Commonwealth v. Paul (1893), 
 
 148 Pa. St. 559; 24 Atl. 
 
 Eep. 78 . . . 84, 195 
 Commonwealth v. Paul (1895), 
 
 107 Pa. St. 284; 33 Atl. Rep. 
 
 83; 50 Am. St. Rep. 776; 
 
 30 L. R A. 396; 5 Int. 
 
 Com. Rep. 506 . . 83, 195 
 Commonwealth v. Philadel- 
 phia & Reading R. R. Co. 
 
 (1867), 1 Pearson (Pa.), 379 338, 
 335 
 Commonwealth v. Savage 
 
 (1893), 155 Mass. 278; 39 
 
 N. E. Rep. 468 . . 153 
 
 Commonwealth v. Schollen- 
 
 berger (1891), 12 Pa. Co. 
 
 Ct. Rep. 443, 535; 2 Pa. 
 
 Dist. Rep. 244 . . 194, 195 
 Commonwealth v. SchoUen- 
 
 berger (1893), 156 Pa. St. 
 
 201; 27 AtL Rep. 80; 36 
 
 Am. St. Rep. 33; 4 Int. 
 
 Com. Rep. 488 88, 194, 195 
 
 Commonwealth v. Schollen- 
 
 berger (1895), 170 Pa. St. 
 
 396; 33 Atl. Rep. 85 83, 195 
 Commonwealth v. Silverman 
 
 (1891), 138 Pa. St. 643; 21 
 
 Atl. Rep. 13 . . .84 
 Commonwealth v. Simon 
 
 (1894), 3 Pa. Dist. Rep. 793; 
 
 15 Pa. Co. Ct. Rep. 550; 35 
 
 W. N. C. 511; 7 Int. Com. 
 
 Rep. (App.) XXX . 194, 380 
 Commonwealth v. Smith 
 
 (1869), 6 Bush, 303 . .277 
 Commonwealth v. Smith 
 
 (1891), 93 Ky. 38; 17 S. W. 
 
 Eep. 187; 36 Am. St. Rep. 
 
 578 23T 
 
 Commonwealth v. Standard 
 Oil Co. (1883), 101 Pa. St. 
 119 . . . 237,340,341 
 
 Commonwealth v. Inhabit- 
 ants of Taunton (1863), 7 
 Allen, 309 .. . 118 
 
 Commonwealth v. U. S. Ex- 
 press Co. (1891), 93 Ky. 38; 
 17 S. W. Rep. 187 . . 337 
 
 Commonwealth v. Waite 
 (1865), 11 Allen, 264; 87 
 Am. Dec. 711 . . . 58 
 
 Commonwealth v. Walker 
 (1894), 14 Pa. Co. Ct. Rep. 
 586; 3 Dist. Rep. 534 . 279 
 
 Commonwealth v, Wetherbee 
 (1891), 158 Mass. 159; 36 
 N. E. Eep. 414 . . . 5& 
 
 Commonwealth v. Wilson 
 (1880), 14 Phila. 884; 37 
 Leg. Int. 484; 56 Am. & 
 Eng. R Cas. 230 . 169, 183: 
 
 Commonwealth v. Zelt (1891), 
 188 Pa. St. 615; 31 Atl. 
 Eep. 7; 11 L. E. A. 602 83, 84 
 
 Cones, C. B., & Son Mfg. Co. 
 V. Eosenbaum et al. (Tex. 
 Civ. App., 1898), 45 S. W. 
 Eep. 333 ... 195. 
 
 Conley v. Chedic (1872), 7 Nev. 
 
 336 . . . . 223,325 
 
 Connecticut Ins. Co. v. Cross 
 
 et al. (1864), 18 Wis. 109 . 133 
 
 Connecticut Eiver Lumber 
 Co. V. Columbia (1883), 62 
 N. H.286 . . 62,224 
 
 Connell v. Western Union 
 Telegraph Co. (1891), 108 
 Mo. 459; 18 8. W. Eep. 883; 
 39 Am. & Eng. Corp. Cas. 
 594 . . 166,180,181,190 
 
 Connolly v. Soarr (1887), 73 
 Iowa, 333; 33 N. W. Eep. 
 641 . . . . 68, 7i 
 
xxu 
 
 TABLE OF CASES. 
 
 Consumers' Gas Trust Co. v. 
 Harless (1892), 131 Ind. 
 446; 29 N. E. Eep. 1062; 
 15 L. R. A. 505 . , 301 
 
 Conway v. Taylor's Executor 
 
 (1861), 1 Black, 603 13, 159, 300 
 
 Cook et al., Ex'rs, v. City of 
 Burlington et al. (1882), 
 59 Iowa, 251; 13 N. W. 
 Rep. 113 . . . . 247 
 
 Cook V. Pennsylvania (1878), 
 
 97 U. S. 566 200, 226, 228, 26*, 
 266, 269, 276, 281 
 
 Cooley V. Board of Wardens 
 of the Port of Philadel- 
 phia (1851), 12 How. 299 24, 26, 
 141, 309 
 
 Coonley v. City of Albany 
 (1892), 133 N. T. 145; 30 
 N. E. Eep. 382; 48 N. Y. 
 St. Rep. 549; 40 Am. & 
 Eng. Corp. Cas. 16 . 110, 113 
 
 Cooper Mfg. Co. v. Ferguson 
 (1885), 113 U. a 737; 5 S. 
 Ct. Rep. 739; 8 Am. & 
 Eng. Corp. Cas. 178 39, 43, 99, 
 151 
 
 Corfleld v. Coryell (1823), 4 
 Wash. C. C. Eep. 371; 6 
 Fed. Cas. 546 . 39, 43, 99, 151 
 
 Corning, In re (1892), 51 Fed. 
 
 Eep. 205 . . . . 337 
 
 Corson v. Maryland (1887), 120 
 U.S. 502; 7 act. Rep. 655; 
 1 Int. Com. Eep. 50 276, 377, 278 
 
 Corson v. The State of Mary- 
 land (1881), 57 Md. 351 376, 277 
 
 Cotting V. Kansas City Stock 
 Yards Co. (1897), 79 Fed. 
 Eep. 679 . . . 45, 333 
 
 Cotting V. Kansas City Stock 
 Yards Co.; Higginson v. 
 Same (1897), 83 Fed. Eep. 
 839 . . . . 45,833 
 
 Cotting V. Kansas City Stock 
 Yards Co.; Higginson v. 
 
 Same (1897), 83 Fed. Eep. 
 850 45 
 
 Council Bluffs, City of, v. The 
 K. C, St. J. & C. B. R. Co. 
 (1876), 45 Iowa, 338; 27 
 Am. Rep. 773 . 44, 119, 193 
 
 County Commissioners of Tal- 
 bot Co. V. County Commis- 
 sioners of Queen Anne 
 Co. (1878), 50 Md. 245 . 118 
 
 County of Mobile v. Kimball 
 
 (1880), 103 U. S. 691 38, 30, 43, 
 45, 113, 187, 190 
 
 County of Santa Clara v. 
 Southern Pac. R. Co. 
 (1883), 18 Fed. Rep. 385 . 233 
 
 Covington & Cincinnati 
 Bridge Co. v. Kentucky 
 (1894), 154 U. a 204; 14 a 
 Ct. Rep. 1087; 61 Am. & 
 Eng. R. Cas. 1 ; 4 Int. Com. 
 Eep. 649 38, 118, 158, 161, 283, 
 284, 387, 399, 303 
 
 Covington & C. Bridge Co. v. 
 Commonwealth (Ky., 
 1893), 22 a W. Eep. 851 . 118 
 
 Covington Harbor Co. v. Phoe- 
 nix Bridge Co. (1890), 23 
 Cin. Law Bull. 84 110, 111, 136 
 
 Covington & Lexington Turn- 
 pike Eoad Co. V. Sandford 
 (1896), 164 U. a 578; 17 S. 
 Ct. Eep. 198 . . 41, 88 
 
 Covington Stock Yards Co. v. 
 Keith (1891), 139 U. S. 128; 
 lis. Ct. Eep. 461; 49 Am. 
 & Eng. E. Cas. 149 . . 166 
 
 Cowden v. Pacific Coast S. S. 
 Co. (1892), 94 CaL 470; 39 
 Pac. Eep. 873 . . . 163 
 
 Cowles V. Brittian (1833), 3 
 
 Hawks (N. C), 204 . . 280 
 
 Cox V. The State (1833), 8 
 
 Blackf. (Ind.) 193 . 113, 123 
 
 Coxe V. State of New York 
 I (1895), 144 N. Y. 396; 39 
 
TABLE OF CASES. 
 
 XSIU 
 
 N. B. Rep. 400; 63 N. Y. 
 
 St. Rep. 643 . . . 137 
 Cragin v. New York Cent. Ry. 
 
 Co. (1873), 51 N. Y. 61; 10 
 
 Am. Rep. 559 . . . 176 
 Craig V. Kline (1870), 65 Pa. 
 
 St. 399; 3 Am. Rep. 686 118, 143 
 Crandall v. State of Nevada 
 
 (1867), 6 Wall 35 28,37,40,193, 
 317, 334 
 Crandall, Ex parte (1865), 1 
 
 Nev. 394 . . 37,217 
 
 Cribb V. The State (1861), 9 
 
 Fla. 409 . . . .143 
 Cross, Ex parte (1886), 20 Neb. 
 
 417; 80 N. W. Rep. 438 . 349 
 Crow V. The State (1851), 14 
 
 Mo. 337 . . . ,277 
 Crow Dog, Ex parte (1883), 109 
 
 U. S. 556; 3 S. Ct. Rep. 396 349 
 Crutcher v. Kentucky (1891), 
 
 141 U. S. 47; 11 S. Ct. Rep. 
 
 851; 46 Am. & Eng. R. 
 
 Cas. 637 . . . 191,271 
 Crutcher v. Commonwealth 
 
 (1889), 89 Ky. 6; 13 S. W. 
 
 Rep. 141; 40 Am. & Eng. 
 
 R Cas. 29 . . . 268 
 Cuban Steamship Co. v. Fitz- 
 
 patrick (1895), 66 Fed, Rep. 
 
 63 193 
 
 Culberson v. American Trust 
 
 & Banking Co. (1894), 107 
 
 Ala. 457; 19 S. Rep. 34; 5 
 
 Int. Com. Rep. 633 . . 196 
 Cummings, In re (1887), 32 
 
 Fed. Rep. 75 . . .837 
 Cummings v. National Bank 
 
 (1879), 101 U. S. 153 . 256 
 
 Currier v. Railroad Ca (1869), 
 
 48N. H. 331 . . .803 
 Curtin v. People (1882), 36 
 
 Hun, 564 ... 143 
 
 Cutting V. Florida Ry. & Nav. 
 
 Co. (1891), 46 Fed. Rep. 
 
 641; 3 Int. Com. Rep. 665 93 
 
 Cynosure, The (1844), 1 
 Sprague, 88; 6 Fed. Cas. 
 1103 . . 87,193,196 
 
 Dam at Lake Winnibigoshish 
 
 (1880), 16 Op. Atty. Gen. 
 
 553 186 
 
 Daniel Ball, The (1870), 10 
 
 Wall. 557 61, 63, 91, 93, 98, 104 
 Daniel v. Trustees of Rich- 
 mond (1880), 78 Ky. 543 . 228, 
 276, 283 
 Davis V. Chicago, Milwaukee 
 
 & St. P. R. Co. (1896), 93 
 
 Wis. 470; 67 N. W. Rep. 16; 
 
 57 Am. St. Rep. 935; 33 
 
 L. R. A. 654 . . 164 167 
 Davis V. Dashiel (1867), 61 
 
 N. C. 114 . . . . 283 
 Davis V. Texas & P. R. Co. 
 
 (1896), 13 Tex. Civ. App. 
 
 437; 34 S. W. Rep. 144 176, 338 
 Debs, Petitioner, In re (1895), 
 
 158U. S.564;15S. Ct.Rep. 
 
 900 , . 119, 307, 308, 809, 326 
 Decker v. Baltimore & N. Y. 
 
 R. Co. (1887), 30 Fed. Rep. 
 
 733; 1 Int. Com. Rep. 434 111 
 Decuir v. Benson (1875), 37 La. 
 
 Ann. 1 . . . .174 
 Delaware & Hudson Canal Co. 
 
 V. Commonwealth (1888), 
 
 1 Monaghan, 36; 17 Am. 
 
 Rep. 175; 37 Am. & Eng. 
 
 R. Cas. 859; IL. R.A.233; 
 
 3 Int. Com. Rep. 233 363, 266 
 Delaware & Hudson Canal Co. 
 
 V. Lawrence (1873), 3 Hun, 
 
 163 , . . . 113, 115 
 Delaware Railrctad Tax, The 
 
 (1873), 18 WalL 306 . 199, 344, 
 248, 257, 303 
 Deming v. Norfolk & W. R. 
 
 Co. (1884), 31 Fed. Rep. p5; 
 
 16 Am. & Eng, R. Cas. 
 
 233 166 
 
XXIT 
 
 TABLE OF CASES. 
 
 Denver & N. O. R. Co. v. Atch- 
 ison, T. & S. F. E. Co. 
 
 (1883), 15 Fed. Eep. 650; 9 
 
 Am. & Eng. E. Cas. 374 . 163 
 Denver & Eio Grande Ey. Co. 
 
 V. Church (1891), 17 Colo. 
 
 1 ; 28 Pac. Eep. 468 ; 48 Am. 
 
 & Eng. R. Cas. 627 . . 352 
 Depew V. The Trustees of the 
 
 Wabash & Erie Canal 
 
 (1854), 5 Ind. 8 113, 115, 133 
 Devoe v. Penrose Ferry Bridge 
 
 Co. (1854), 5 Pa. Law J. 
 
 Eep. 313; 7 Fed. Cas. 566; 
 
 3 Am. Law Eeg. (O. S.) 79 113, 
 119 
 Dillingham, Eeceiver, v. 
 
 Fischl (1893), 1 Tex. Civ. 
 
 App. 546; 31 S. W. Eep. 
 
 554 183 
 
 Dillon v. Erie Ey. Co. (1897), 
 
 48 N. Y. Supp. 320; 19 Misc. 
 
 Eep. 116 . . . 90, 184 
 Dinsmore v. N. Y. Board of 
 
 Police (1883), 13 Abb. N. C. 
 
 436 . . . . 178, 193 
 District of Columbia v. Euma- 
 
 son (1875), 2 MacArthur, 
 
 158 278 
 
 Dize V. Lloyd (1888), 36 Fed. 
 
 Eep. 651 . . . . 153 
 Doherty v. Cotter (N. H., 1894), 
 
 38 Atl. Eep. 499 . . 177 
 Donald v. Scott (1896), 74 Fed. 
 
 Eep. 859 . . . 81, 194 
 Donald v. Scott (1895), 67 Fed. 
 
 Eep. 854 . . . ,81 
 Donald v. Scott (1895), Ex 
 
 parte Gonzales, 76 Fed. 
 
 Eep. 559 .... 81 
 Dorman v. The State (1859), 34 
 
 Ala. 216 . . . 85, 188 
 Dorsey v. State (1890), 135 Ind. 
 
 600; 35 N. E. Eep. 350 . 179 
 Doucette v. Little Falls Imp. & 
 
 Nav. Co. (Minn., 1898), 73 
 
 N. W. Eep. 847 , . 137 
 
 Dougan v. State (1890), 135 Ind. 
 
 130; 35 N. E. Eep. 171; 9 
 
 L. R. A. 331 . . 60,179 
 Dover v. Portsmouth Bridge 
 
 (1845), 17 N. H. 300 . . 118 
 Dow V. Beidelman (1888), 135 
 
 U.S.680;8S.Ct.Eep.l038; 
 
 34 Am. & Eng. E. Cas. 
 
 332; 3 Int. Com. Rep. 56 . 285 
 Dred Scott v. Sandf ord (1856), 
 
 19 How. 398 . . 101,121 
 Drew V. Hilliker (1884), 56 Vt. 
 
 641 151 
 
 Dryden v. Commonwealth 
 
 (1855), 16 B. Hon. 598 141, 143 
 Dubuque, City of, v. Illinois 
 
 Cent. R. Co. (1874), 39 
 
 Iowa, 56 . . . .250 
 Ducat V. Chicago (1870), 10 
 
 Wall. 410 .. . 47 
 Dueber Watch Case Mfg. Co. 
 
 v. E. Howard Watch & 
 
 Clock Co. (1898), 55 Fed. 
 
 Rep. 851 . . . .319 
 Duluth Lumber Co. v. St. 
 
 Louis Boom & Imp. Co. 
 
 (1883), 5 McCrary, 382; 17 
 
 Fed. Rep. 419 . . 123, 133 
 Dunham v. Lamphere (1855), 
 
 3 Gray, 368 . . 151,153 
 Durkee v. Moses (N. H., 1893), 
 
 33 Atl. Rep. 793 . . 177 
 Dutton V. Strong (1861), 1 
 
 Black, 33 . . , 135 
 Duval's Heirs v. McLosky 
 
 (1840), 1 Ala. 708 . . 135 
 
 E. L. & R. R. Ry. Co. v. Rush- 
 ing (1887), 69 Tex. 306; 6 
 S. W. Rep. 834; 34 Am. & 
 Eng. R. Cas. 367 . . 303 
 
 East River Ferry Co., In re 
 
 (1886), 36 Fed. Eep. 766 . 106 
 
 Easton, Ex parte (1877), 95 U. 
 
 S. 68 . . . 98, 145 
 
 E. B. Ward, The (1883), 16 Fed. 
 
 Eep. 255 . . . . 169 
 
TABLE OF CASES. 
 
 XXT 
 
 Edgerton, Ex parte (1893), 59 
 
 Fed. Rep. 115; 4 Int. Com. 
 
 Rep. 635 . . . .79 
 Edwards v. Steamship Pan- 
 ama (U. S. O. C. Oreg., 
 
 1861), Deady, 37; 1 Oreg. 
 
 418; 18 Fed. Cas. 1068 . 142 
 Egan V. Hart (1893), 45 La. 
 
 Ann. 1358; 14 S. Rep. 344 113, 
 115, 134 
 Eisenbach v. Hatfield (1891), 
 
 2 Wash. 236; 26 Pac. Rep. 
 
 539; 12 L. R. A. 632 . . 135 
 Eldridge v. Cowell (1854), 4 
 
 Cal. 80 . . . .113 
 Elkison, Ex parte, v. Delies- 
 
 seline, SheriflE (1823), 2 
 
 Wheel. Cr. Cas. 56; 8 Fed. 
 
 Cas. 493 . . . 15,37 
 
 Ellen Holgate, The (1887), 30 
 
 Fed. Rep. 125 . . . 234 
 Ellerman v. McMains (1878), 30 
 
 La. Ann. 190; 31 Am. Rep. 
 
 218 145 
 
 Emert v. Missouri (1895), 156 
 
 U.S. 396; 15 S. Ct. Rep. 
 
 367 ; 5 Int. Com. Rep. 68 279, 280 
 Empire Transportation Co. v. 
 
 Wallace (1871), 68 Pa. St. 
 
 303; 8 Am. Rep. 178 . 166 
 Endleman v. United States 
 
 (1898), 86 Fed. Rep. 456 60, 134, 
 305, 313 
 Erie Ry. Co. v. Pennsylvania 
 
 (1873), 15 Wall. 383 30, 28, 31, 
 38,40, 41, 43, 148, 331, 363, 397 
 Erie Ry. Co. v, Pennsylvania 
 
 (1874), 21 WalL 493 . 340, 363 
 Erie Ry. Co. v. State (1864), 
 
 31N. J.L.(3Vroom),531; 
 
 86 Am. Dec. 236 43, 44, 49, 319, 
 223, 235 
 Escanaba Co. v. Chicago (1882), 
 
 107U. S.678;3S.CtRep. 
 
 185; 3 Am. & Eng. Corp. 
 
 Cas. 330 38, 98, 110, 115, 118, 
 119, 135 
 
 Ex parte (see name of party). 
 Express Co. v. State (1896), 55 
 
 Ohio St. 69; 44 N. E. Rep. 
 
 506 274 
 
 Fairchild v. P. W. & B. R. R. 
 
 Co. (1893), 148 Pa. St. 527; 
 
 24 Atl. Rep. 79 . . 168 
 Fanning v. Gregoire (1853), 16 
 
 How. 534 . . 159, 300 
 
 Fargo V. Auditor General 
 
 (1885), 57 Mich. 598; 34 N. 
 
 W. Rep. 538; 23 Am. & 
 
 Eng. E. Cas. 216 . . 366 
 Fargo V. Doe (1895), 37 U. S. 
 
 App. 378; 16 C. C. A. 305; 
 
 69 Fed. Rep. 546; 2 Am. 
 
 & Eng. Corp. Cas. (N. S.) 
 
 167 .... 240, 259 
 Fargo V. Michigan (1887), 121 
 
 U. S. 330; 7 S. Ct, Rep. 
 
 857; 31 Am. & Eng. R. 
 
 Cas. 453 . 204, 364, 266, 397 
 Farmers', etc. Ins. Co. v. Har- 
 
 rah (1874), 47 Ind. 336 . 47 
 Farmers' Loan & Trust Co. 
 
 V. Northern Pac. Ry. Co. 
 
 (1897), 83 Fed. Rep. 349 . 390 
 Farmers' Loan & Trust Co. v. 
 
 Stone (1884), 30 Fed. Rep. 
 
 370 284 
 
 Farragut, The (1868), 6 Blatchf. 
 
 307; 8 Fed. Cas. 1069 . 104 
 Farris v. Henderson (1893), 1 
 
 Okla. 384; 33 Pac. Rep. 
 
 380 . . 64, 140, 193, 233, 325 
 Fecheimer Bros. & Co. v. City 
 
 of Louisville (1886), 84 Ky. 
 
 306; 2 S. W. Rep. 65 . 376 
 Ficklin v. Shelby County Tax- 
 ing District (1893), 145 U. S. 
 
 1; 13 S. Ct. Rep. 810; 39 
 
 Am. & Eng. Corp. Cas. 78; 
 
 4 Int. Com. Rep. 79 237,339,381 
 Field V. Clark (1893), 143 U. S. 
 
 649; 13 S. Ct. Rep. 495 . 134, 
 809, 811 
 
XXVI 
 
 TABLE OF CASES. 
 
 Fielder v. Missouri, K & T. 
 
 Ey. Co. (Tex. Civ. App., 
 
 1897), 43 S. W. Rep. 363 . 95 
 Finney Grocery Co. v. Speed 
 
 (1898), 87 Fed. Rep. 408 329, 269 
 First Municipality v. Pease 
 
 (1847), 2 La. Ann. 538 . 145 
 Fitoh V. Livingston (1851), 4 
 
 Sandf. (N. T.) 493 . . 103 
 Fitzgerald v. Fitzgerald & 
 
 Mallory Construction Co. 
 
 (1894), 41 Neb. 374; 59 
 
 N. W. Rep. 838 . . 284 
 Flanagan v. City of Philadel- 
 phia (1862), 42 Pa. St. 219 113, 
 119 
 Flinn, In re (1893), 57 Fed. 
 
 Rep. 496; 48 Am. & Eng. 
 
 Corp. Cas. 588 . . 275, 278 
 Florio, In re (1890), 48 Fed. 
 
 Rep. 114 . . . . 337 
 Folger V. Weber (1879), 16 
 
 Hun, 513 . . . . 101 
 Folsom V. United States (1868), 
 
 4 Ct. of Claims, 366 . . 307 
 Fong Yue Ting v. United 
 
 States (1893), 149 U. S. 698; 
 
 13 S. Ct. Rep. 1016 . 304, 338 
 Fonseca v. Cunard Steamship 
 
 Co. (1891), 153 Mass. 558; 
 
 27 N. E. Rep. 665; 12 L. R. 
 
 A. 340; 25 Am. St. Rep. 
 
 660 168 
 
 Forbes v. Boston & Lowell R. 
 
 R. Co. (1882), 133 Mass. 154; 
 
 9 Am. & Eng. R. Cas. 76 . 166 
 Fortenbury v. State (1886), 47 
 
 Ark. 188; 1 S. W. Rep. 58 56 
 Fort Scott, City of, v. Pelton 
 
 (1888), 39 Kan. 764; 18 Pac. 
 
 Rep. 954 . . . 275, 378 
 Ft. Worth & D. Ry. Co. v. Lil- 
 
 lard (1890), 16 S. W. Rep. 
 
 654; 4 Tex. Ct. of App. 
 
 Civ. Cas. 133 . . . 183 
 
 Ft. Worth & Denver City Ry. 
 
 Co. V. Whitehead (1894), 6 
 
 Civ. App. 595; 36 S. W. 
 
 Rep. 173 . . . .94 
 Foster v. Board Co. Comm'rs 
 
 Blue Earth Co. (1862), 7 
 
 Minn. 140 . . 229, 350 
 
 Foster v. Chamberlain & Co. 
 
 (1867), 41 Ala. 158 . . 103 
 Foster v. Davenport (1859), 33 
 
 How. 244 . . 91, 101 
 
 Foster v. Master & Wardens 
 
 of the Port of New Or- 
 leans (1876), 94 U. S. 246 28, 156 
 France v. Erie Ry. Co. (1874), 
 
 2 Hun, 513 .. . 354 
 Franklin County v. R. R Co. 
 
 (1883), 12 Lea(Tenn.), 531; 
 
 17 Am. & Eng. R. Cas. 
 
 445 254 
 
 Fred Miller Brewing Co. v. 
 
 Stevens (1897), 103 Iowa, 
 
 60; 71 N. W. Rep. 186 . 79 
 Freeholders of Hudson County 
 
 V. State (1853), 24 N. J. L. 
 
 718 159 
 
 Freeman v. The Undaunted 
 
 (1889), 37 Fed. Rep. 662 143,150 
 Frere, Tax Collector, v. Von 
 
 Schoeler (1895), 47 La. 
 
 Ann. 324; 16 S. Rep. 808; 
 
 37 L. R. A. 414 . . 366 
 
 Fritts V. Palmer (1889), 133 U. 
 
 S. 382; 10 S. Ct. Rep. 93; 
 
 27 Am. & Eng. Corp. Cas. 
 
 424 . . . 178, 195, 196 
 Fry V. The State (1878), 63 Ind. 
 
 553; 30 Am. Rep. 238 ^ 169 
 Fugate's Case (1849), 6 Gratt 
 
 693 377 
 
 Fuller V. The Chicago & N. 
 
 W. R. R. Co. (1871), 81 
 
 Iowa, 211 ... 295 
 
 Fuqua, Hinkle & Davis v. 
 
 Pabst Brewing Co. (1897), 
 
TABLE OF OASES. 
 
 XSVU 
 
 90 Tex. 298; 38 S. W. 
 Eep. 39, 750; 35 L. R. A. 
 341 . . . 66,83,329,336 
 Fuqua et al. v. Pabst Brewing 
 Co. (Tex. Civ. App., 1896), 
 36 S. W. Rep. 479 . . 339 
 
 Galveston Co. v. Gorham 
 
 (1878), 49 Tex. 379 . . 369 
 Galveston, H. & S. A. Ry. Co. 
 
 V. Armstrong (Tex. Civ, 
 
 App., 1897), 43 S. W. Rep. 
 
 614 . . . . 93, 168 
 Galveston, H. & S. A. Ry. Co. 
 
 V. Herring (Tex. Civ. App., 
 
 1896), 36 S. W. Rep. 139 . 169 
 Galveston, H. & S. A. Ry. Co. 
 
 V. Johnson (Tex. Civ. App., 
 
 1895), 39 S. W. Rep. 438 . 169 
 Gamett et al.. In re (1890), 141 
 
 U. S. 1 ; 11 S. Ct. Rep. 840 97, 106 
 Gatton V. Chicago, R. I. & P. 
 
 Ry. Co. (1895), 95 Iowa, 
 
 113; 63 N. W. Rep. 589; 38 
 
 L. R. A. 556; 5 Int. Com. 
 
 Rep. 474 . . 163, 163, 394 
 Geer v. Connecticut (1896), 
 
 161 U. S. 519; 16 S. Ct. 
 
 Rep. 600 . . . . 150 
 Gelpi V. Schenck, Treasurer 
 
 (1896), 48 La. Ann. 1535; 
 
 31 S. Rep. 115 . . 336, 281 
 Gentile v. The State (1868), 39 
 
 Ind. 409 . . . .151 
 Georgia Packing Co. v. City 
 
 of Maoon (1893), 60 Fed. 
 
 Rep. 774; 46 Am. & Eng. 
 
 Corp. Cas.613; 33L.R.A. 
 
 775; 4 Int. Com. Rep. 508 150, 
 194, 376 
 Georgia Railroad & Banking 
 
 Co. V. Smith (1888), 138 
 
 U. S. 174; 9 S. Ct. Rep. 47 385 
 Gerber v. Wabash R. R. Co. 
 
 (1895), 63 Mo. App. 145; 5 
 
 Int. Com. Rep. 458 . 183, 389 
 
 Gibbons v. Livingston (1833), 
 
 6 N. J. L. (1 Halsted), 236 110 
 Gibbons v. Ogden (1834), 9 
 
 Wheat. 1 3, 15, 30, 31, 43, 59, 
 
 60, 110, 139, 312, 307 
 Gibbons v. Ogden (1820), 17 
 
 Johns. (N. Y.) 488 . . 110 
 Gibson v. United States (1897), 
 
 166 U. S. 269; 17 S. Ct. 
 
 Rep. 578 . . . 110, 136 
 Gibson Co. v. Pullman South. 
 
 Car Co. (1890), 43 Fed. Eep. 
 
 573; 45 Am. & Eng. R. 
 
 Cas. 18 . . . .374 
 Oilman v. Philadelphia (1865), 
 
 3 Wall. 713 20, 97, 98, 99, 110, 
 115, 116, 119, 307 
 Gilmer v. Lime Point (1861), 
 
 18Cal. 239 . . .315 
 Gilmore v. Hannibal & St. Jo. 
 
 E. R. Co. (1878), 67 Mo. 
 
 333 147 
 
 Gladson v. Minnesota (1897), 
 
 166 U. S. 427; 17 S. Ct. 
 
 Eep. 627; 7 Am. & Eng. 
 
 R. Cas. (N. S.) 558 . . 184 
 Gloucester Ferry Co. v. Penn- 
 sylvania (1885), 114 U. S. 
 
 196; 5 S. Ct. Eep. 826; 13 
 
 Am. & Eng. Corp. Cas. 
 
 365; 1 Int. Com. Eep. 383 28, 
 85, 113, 143, 144, 161, 186, 
 187, 189, 191, 192, 239, 384, 
 338, 340, 345, 298 
 Glover v. Board of Flour In- 
 spectors (1891), 48 Fed. 
 
 Eep. 348 . , . . 154 
 Glover v. Powell (1854), 10 
 
 N. J. Eq. 211 . . .113 
 Gooch, In re (1890), 44 Fed. 
 
 Rep. 276; 10 L. E. A. 830; 
 
 3 Int. Com. Rep. 530 49, 194 
 Goodrel v. Kreichbaum (1886), 
 
 70 Iowa, 362; 30 N. W. 
 
 Rep. 872; 15 Am. & Eng. 
 
 Corp. Cas. 401 . , 196 
 
XXVIU 
 
 TABLE OF CASES. 
 
 ■Goodrich Transp. Co., In re 
 
 (1886), 26 Fed. Rep. 713 , 106 
 Goodwin v. Fertilizer Works 
 
 (1896), 119 N. 0. 130; 35 
 
 S. E, Rep. 795 . . 154, 157 
 Goulding Fertilizer Co. v. 
 
 Driver (1896), 99 Ga. 633; 
 
 35 S. E. Rep. 923 154, 155, 157 
 Governor Robert McLane, 
 
 The, V. United States 
 
 (1888), 85 Fed. Rep. 926 104 
 
 Graffty v. City of . Rushville 
 
 (1886),107Ind.503;8N.E. 
 
 Rep. 609; 5 Western Rep. 
 
 858; 15 Am. & Eng. Corp. 
 
 Cas. 456 . . . 376, 277 
 Graham v. Township of St. 
 
 Joseph (1888), 67 Mich. 
 
 652; 85 N. W. Rep. 808 . 334 
 Grand Jury, In re (1894), 63 
 
 Fed. Rep. 834; 4 Int. Com. 
 
 Rep. 777 . . . '309, 335 
 Grand Jury, In re, United 
 
 States V. Debs (1894), 63 
 
 Fed. Rep. 436; 4 Int. Com. 
 
 Rep. 801 . . . . 309 
 Grand Jury, In re (1894), 63 
 
 Fed. Rep. 840; 4 Int. Com. 
 
 Rep. 784 . . . 309, 335 
 Grand Trunk R. Co. of Can- 
 ada, Re (1889), 3 Int. Com. 
 
 Rep. 496; 3 Int. Com. 
 
 Comm. Rep. 89 . . 387 
 Grand Trunk Ry. Co. v. A. 
 
 Backus Jr. & Sons (1891), 
 
 46 Fed. Eep. 311 . 135, 144 
 Green v. Steamer Helen (1880), 
 
 1 Fed. Rep. 916 , . 143 
 Green v. Mayor and Aldermen 
 
 of Savannah (1833), R. M. 
 
 Charlt. (Ga.) 368 . . 154 
 Green & Barren River Nav. 
 
 Co. V. Ches., O. & S. W. E. 
 
 Co. (1888), 88 Ky. 1; 10 S. 
 
 W. Rep. 6; 37 Am. & Eng. 
 
 E. Cas. 338;3L.R. A.540; 
 
 S Int. Com. Rep. 515 113, 118 
 Green, In re (1893), 53 Fed. 
 
 Rep. 104 . . 61, 63, 337 
 
 Greer, Mills & Co. v. StoUer 
 
 (1896), 77 Fed. Rep. 1 . 335 
 Gretna Green, The (1883), 30 
 
 Fed. Rep. 901 . . 101,104 
 Griffing v. Gibb et al. (1857), 
 
 1 McAllister, 213; 11 Fed. 
 
 Cas. 38 . . . .151 
 Grimes v. Eddy (1894), 126 
 
 Mo. 168; 27 S. W. Rep. 
 
 479; 28 S. W. Rep. 756; 
 
 47 Am. St. Rep. 653; 61 
 
 Am. & Eng. R. Cas. 343 67, 
 147, 172, 178, 193 
 Groton & Ledyard v. Hurlbut 
 
 et al. (1852), 32 Conn. 178 110, 
 118 
 Grousendorf v. Howat (1889), 
 
 77 Iowa, 187; 41 N. W. 
 
 Eep. 578 . . . .71 
 Groves v. Slaughter (1841), 15 
 
 Pet. 449 . , . 73, 305 
 Guokenheimer v. Sellers 
 
 (1897), 81 Fed. Rep. 997 82, 83 
 Gulf, etc. E. Co. V. Barry 
 
 (Tex. Civ. App., 1898), 45 
 
 S. W. Rep. 814 93, 163, 394 
 
 Gulf, Colorado & Santa Fe Ry. 
 
 Co. V. Dwyer (1890), 75 
 
 Tex. 573; 12 S. W. Eep. 
 
 1001; 16 Am. St. Eep. 936; 
 
 43 Am. & Eng. R. Cas. 
 
 503; 1 Am. Rid. & C. R. 
 
 315 . . . . 183, 190 
 Gulf, Colorado & Santa Fe 
 
 Ry. Co. V. Eddins (1894), 7 
 
 Tex. Civ. App. 116; 36 S. 
 
 W. Eep. 161 . . .169 
 Gulf, Colorado & Santa Fe 
 
 Ey. Co. V. Gray (Tex. Civ. 
 
 App., 1894), 34 S. W. Eep. 
 
 837 176 
 
TABLE OF CASES. 
 
 XXIX 
 
 Gulf, Colorado & Santa Fe 
 Ey. Co. V. Gray (1894), 87 
 Tex. 312; 28 S. W. Rep. 
 380 176 
 
 Gulf, Colorado & Santa Fe 
 Ey. Co. V. Hefley (1895), 
 158U. S. 98;15S.Ct.Eep. 
 803 . . . . 183, 295 
 
 Gulf, Colorado & Santa Fe 
 Ey. Co. V. Miami Steam- 
 ship Co. (1898), 86 Fed. 
 Eep. 407 . 284, 320, 821, 335 
 
 Gulf, Colorado & Santa Fe 
 Ey. Co. V. Nelson (1893), 4 
 Tex. Civ. App. 345; 23 S. 
 W. Eep. 733 , . . 183 
 
 Gulf, Colorado & Santa Fe 
 Ey.Co. V. The State (1888). 
 72 Tex. 404; 10 S. W. Eep. 
 81; 36 Am. & Eng. E. Cas. 
 481; 1L.R. A. 849; 2 Int. 
 Com. Rep. 335; 13 Am. St 
 Rep. 815 . . . . 303 
 
 Gunn V. Barry (1872), 15 Wall. 
 
 610 309 
 
 Gunn V. White Sewing Ma- 
 chine Co. (1892), 57 Ark. 
 24; 20 S. W. Rep. 291; 38 
 Am. St. Rep. 333; 18 L. R. 
 A. 206; 42 Am. & Eng. 
 Corp. Cas. 363; 4 Int. Com. 
 Rep. 309 . . . 178, 195 
 
 Gunther v. The Mayor and 
 City Council of Baltimore 
 (1880), 55 Md. 457 . 233, 284 
 
 Guy V. Baltimore (1879), 100 
 
 U. S. 434 . 56, 144, 150, 228 
 
 Hackley v. Geraghty (1870), 
 
 34 N. J. L. 382 . . 225 
 
 Hafer v. Cin. H. & D. R. Co. 
 (1893), 29 Cin. Weekly 
 Law Bull. 68 . . . 303 
 
 Hagan v. Blindell (1893), 13 U. 
 S. App. 354; 6 C. C. A. 86; 
 56 Fed. Rep. 696 . . 335 | 
 C 
 
 Halderman v. Beckwith (1847), 
 
 4 McLean, 286; 11 Fed. 
 
 Cas. 172 . , . . 103 
 Haldy v. Tomoor-Haldy Co. 
 
 (1896), 3 Ohio N. P. 48; 4 
 
 Ohio Dec. 118 . . . 196 
 Haley v. State (1894), 43 Neb. 
 
 556; 60 N. W. Rep. 963; 47 
 
 Am. St. Rep. 718 . . 83 
 Hall V. American Refrigerator 
 
 Transit Co. (Colo., 1897), 51 
 
 Pac. Rep. 431 . . . 353 
 Hall V. De Cuir (1877), 95 U. S. 
 
 485 . 38, 87, 119, 164, 174, 310 
 Hall V. South Carolina Ry. Co. 
 
 (1885), 25 S. C. 564 . . 384 
 Hall V. State (1897), 39 Fla. 
 
 637; 33 S. Rep. 119 . 279, 280 
 Hamilton v. Savannah, F. & 
 
 W. Ey. Co. (1893), 49 Fed. 
 
 Eep. 413 . . . . 303 
 Hamilton v. Vicksburg, 
 
 Shreveport & Pac. E. Co. 
 
 (1883), 34 La. Ann. 970; 
 
 44 Am. Rep. 451 . . 118 
 Hamilton v. Vicksburg, 
 
 Shreveport & Pac. Ey. Co. 
 
 (1886), 119 U. S. 380; 7 S. 
 
 Ct. Eep. 306; 39 Am. & 
 
 Eng. E. Cas. 490 . 115, 133 
 Haney & Scattergood v. Comp- 
 
 ton(1878),86N.J.L.507 151,153 
 Hanson, Ex parte (1886), 38 
 
 Fed. Eep. 127 32, 60, 150, 226, 
 277 
 Harbor Commissioners v. 
 
 Pashley (1883), 19 S. C. 315; 
 
 3 Am. & Eng. Corp. Cas. 
 
 495 . . . • . 325 
 Harbor Improvement at Chi- 
 cago (1883), 17 Op. Atty. 
 
 Gen. 379 . . . .113 
 Harbor Line Commissioners 
 
 V. State ex rel. Yesler 
 
 (1891), 2 Wash. 530; 37 
 
 Pac. Rep. 550 . . . 144 
 
•yyx 
 
 TABLE OF CASES. 
 
 Harbor Master of Mobile v. 
 
 Southerland (1873), 47 Ala. 
 
 511 145 
 
 Hardy v. A., T. & S. F. Ry. Co. 
 
 (1884), 33 Kan. 698; 5 Pac. 
 
 Rep. 6; 18 Am. & Eng. R. 
 
 Cas. 433 . . . 28, 93 
 
 Harmon, In re (1890), 43 Fed. 
 
 Rep. 873 . . . .83 
 Harmon v. City of Chicago 
 
 (1892), 140 111. 374; 29 N. E. 
 
 Rep. 732; 26 N. E. Rep. 
 
 697; 35 Am. & Eng. Corp. 
 
 Cas. 654 . . . . 114 
 Harmon v. City of Chicago 
 
 (1893), 147 U. S. 396; 13 S. 
 
 Ct. Rep. 306; 43 Am. & 
 
 Eng. Corp. Cas. 577 91, 114, 149 
 Harmon v. City of Chicago 
 
 (1884), 110 111. 400; 11 Am. 
 
 & Eng. Corp. Cas. 341 . 103 
 Harrigan v. Connecticut 
 
 River Lumber Co. (1880), 
 
 129 Mass. 580; 37 Am. Rep. 
 
 387 . . . . 103,143 
 Harrisburg, The (1886), 119 
 
 U. S. 199; 7 S. Ct. Rep. 140 170 
 Harrison v. City of Vicksburg 
 
 (1844), 3 Sm. & M. (Miss.) 
 
 581; 41 Am. Dec. 633 . 281 
 Harrison v. State (1890), 91 
 
 Ala. 63; 10 S. Rep. 30 . 83 
 Hart V. Chicago & N. W. Ry. 
 
 Co. (1886), 69 Iowa, 485; 29 
 
 N. W. Rep. 597; 27 Am. 
 
 & Eng. R. Cas. 59 . . 167 
 Hartranft v. Dupont (1886), 
 
 118U. S. 333;6S.Ct.Rep. 
 
 1188 . . . .104 
 
 Harvey v. Huffman (1889), 39 
 
 Fed. Rep. 646 . . 43, 194 
 Hatch v. Willamet Iron 
 
 Bridge Co. (1881), 7 Sawy. 
 
 127; 6 Fed. Rep. 326 116, 118, 
 125, 311 
 
 Haug v. Third National Bank 
 of Detroit (1889), 77 Mich. ^ 
 474; 43 N. W. Rep. 939 . 103 
 
 Hawkins Point Lighthouse 
 
 Case (1889), 39 Fed. Rep. 77 136 
 
 Hays V. Pacific Mail Steam- 
 ship Co. (1854), 17 How. 
 596 . . 233,336,249,250 
 
 Hazard v. Hudson River 
 Bridge Co. (1863), 37 How. 
 Pr. 396 . . . .115 
 
 Hazel V. Chicago, M. & St. P. 
 Ry. Co. (1891), 83 Iowa, 
 477; 48 N. W. Rep. 936 . 167 
 
 Hazel Kirke, The (1885), 23 
 Blatch. 2S2; 25 Fed. Rep. 
 601 104 
 
 Head Money Cases, The (1883), 
 18 Fed. Rep. 135; 31 Blatch. 
 460 . . . . 45,221 
 
 Head Money Cases (1884), 113 
 U. S. 580; 5 S. Ct. Rep. 
 247 . . . 64, 231, 304 
 
 Health Dep't of N. T. v. Pur- 
 don (1885), 99 N. Y. 337; 1 
 N. E. Rep. 687; 53 Am. 
 Rep. 22 . . , .58 
 
 Heard v. Georgia R. Co. (1889), 
 2 Int. Com. Rep. 508; 3 
 Int. Com. Comm. Rep. Ill 169 
 
 Heerman v. Beef Slough, etc. 
 Co. (1878), 8 Biss. 334; 1 
 Fed. Rep. 145 . 100, 113, 143 
 
 Heiserman v. Burlington, C. 
 R. & N. Ry. Co. (1884), 63 
 Iowa, 733; 18 N. W. Rep. 
 903 . . . . 60,91 
 
 Henderson Bridge Co. v. Com- 
 monwealth (1895), 99 Ky. 
 623; 31S. W.Rep. 486; 29 
 L. R. A. 73; 2 Am. & Eng. 
 Corp. Cas. (N. S.) 17 . 256 
 
 Henderson Bridge Co. v. Hen- 
 derson City (1891), 141 U. 
 S. 679; 13 S. Ct. Rep. 114 256 
 
TABLE OF OASES. 
 
 ^x•x-x^ 
 
 Henderson Bridge Co. v. Ken- 
 tucky (1897), 166 U. S. 150; 
 
 17 S. Ct. Eep. 553 . . 256 
 Henderson v. Mayor of the 
 
 City of New York (1875), 
 
 93 U. S. 359 38, 58, 138, 139, 
 
 189, 193, 219, 224 
 Henderson v. Spofford (1871), 
 
 8 Daly, [361; 10 Abb. Pr. 
 
 (N. S.) 140 .. , 142 
 Henderson v. Spofford (1874), 
 
 59 N. T. 131 . . 143, 186 
 Hendriok v. Boston & A. B. 
 
 Co. (Mass., 1897), 48 N, E, 
 
 Rep. 835 . . . 176,177 
 Hennick, In re (1887), 5 
 
 Maokey, 489; 18 Am. & 
 
 Eng. Corp. Cas. 546; 1 Int. 
 
 Com. Rep. 66 . . 276, 378 
 Hennington v. Georgia (1896), 
 
 163U.S.299;16S.Ct.Eep. 
 
 1086; 4 Am. & Eng. E. 
 
 Cas. (N. S.) 488 . . 140, 179 
 Hennington v. State (1892), 90 
 
 Ga.896;17S.E.Rep.l009; 
 
 57 Am. & Eng. R. Cas. 43; 
 
 4 Int. Com. Eep. 413 . 179 
 Henry B. Hyde, The (1897), 83 
 
 Fed. Eep. 681 . . . 167 
 Henry v. Eoberts (1893), BO 
 
 Fed. Eep. 903 . . 137, 143 
 Hess, David M., v. William E. 
 
 Muir et al. (1886), 65 Md. 
 
 586 151 
 
 Hicks V. Ewhartonah (1860), 
 
 31 Ark. 106 . . . 351 
 Higgins V. Lime (1880), 130 
 
 Mass, 1 . . . 150, 156 
 Higgins V. Rihker (1877), 47 
 
 Tex. 381, 393 . . . 276 
 Hine, The, v. Trevor (1866), 4 
 
 Wall. 555 ... 97 
 Hinson v. Lett (1866), 40 Ala. 
 
 133 . . . . 336, 339 
 Hinson v. Lott (1868), 8 WalL 
 
 148 . . . 67, 338, 339 
 
 Hoeft V. Seaman (1873), 46 
 
 How. Pr. 24 . . . 109 
 Hoffman v. Harvey (1891), 138 
 
 Ind. 600; 28 N. E. Eep. 93 194 
 Hogg V. Zanesville, C. & M. 
 
 Co. (1831), 5 Ohio, 357 . 113 
 Holder v. Aultman (1898), 169 . 
 U. S. 81; 18 S. Ct. Rep. 
 
 269 196 
 
 Holman, W. B., Ex parte 
 (1896), 36 Tex. Crim. App. 
 255; 36 8. W. Rep. 441 375, 278 
 Holyoke & South Hadley Falls 
 Ice Co. V. Ambden (1893), 
 55 Fed. Rep. 593; 31 L. E 
 A. 319 . . . . 177 
 Home Ins. Co. v. New York 
 State (1890), 134 U. S. 594; 
 10 S. Ct. Eep. 593; 39 Am. 
 & Eng. E Cas. 575 . . 301 
 Honduras Co. v. Board of 
 Assessors (1893), 54 N. J. 
 L. 278; 23Atl. Eep. 668; 
 38 Am. & Eng. Corp. Cas. 
 592 . . . . 55, 398 
 Hooper v. California (1895), 
 155 U. S. 648; 15 S. Ct. 
 Eep. 307 . . . .47 
 Hopkins v. Lewis, Judge 
 (1893), 84 Iowa, 690; 51 
 N, W. Eep. 355; 15 L. E 
 A. 397; 4 Int. Com. Eep. 
 
 63 83 
 
 Hopkins v. Wyckofl (1861), 
 
 1 Daly, 176 . . 141,143 
 Horn Silver Mining Co. v. 
 New York State (1893), 
 143 U.S. 305; 13 S. Ct. 
 Eep. 403; 37 Am. & Eng. 
 Corp. Cas. 619; 4 Int. Com. 
 Eep. 57 . 240, 374, 399, 303 
 Hospes V. O'Brien (1885), 24 
 
 Fed. Eep. 145 . . . 155 
 Hough, Ex parte (1895), 69 
 Fed. Rep. 330; 5 Int. Com. 
 Rep. 837 . . . 375, 378 
 
xxxu 
 
 TABLE OF CASES. 
 
 Houston, In re (1891), 47 Fed. 
 
 Rep. 539 ; 14 L. R. A. 719 275, 278 
 
 Houston, eta R. R. Co. v. 
 Campbell (Tex., 1897), 40 
 S. W. Rep. 431 . . . 188 
 
 Houston Direct Navigation 
 Co. V. Insurance Co. of 
 North America (Tex. Civ. 
 App., 1895), 31 S. W. Rep. 
 560 105 
 
 Houston Direct Navigation 
 Co. v. Insurance Co. of 
 Nortli America (1895), 89 
 Tex.1; 33 S. W. Rep. 889; 
 80 L. R. A. 713 93, 93, 9^ 105 
 
 Houston, E. & W. T. R. Co. v. 
 Peters (Tex. Civ. App., 
 1897), 40 S. W. Rep. 429 . 188 
 
 Houston & Texas Central Ry. 
 Co. V. Davis (1895), 11 Tex. 
 Civ. App. 34; 31 S. W. Rep. 
 308 168 
 
 Houston & T. C. R. Co. v. 
 Dumas (Tex. Civ. App., 
 1897), 43 S. W. Rep. 609 90, 
 9,4, 188, 289 
 
 Houston & T. C. R. Co. v. 
 Williams (1895), 31 S. W. 
 Rep. 556 . . . , 168 
 
 Howe Machine Co. v. Gage 
 
 (1879), 100 U. S. 676 . 279 
 
 Howe Machine Co. v. Gage 
 
 (1876), 9 Baxt. (Tenn.) 518 280 
 
 Howell V. The State (1845), 
 
 3 Gill (Md.), 14 . . 236 
 
 Huddleston, Hubbard & Co. v, 
 Hagerty, Auditor (1898), 
 2 Ohio N. P. 291; 1 Ohio 
 Dec. 331 . . . 226,229 
 
 Huffman v. Western Mort- 
 gage & Investment Co. 
 (1896), 13 Tex. Civ. App. 
 169; 86 S. W. Rep. 806 55, 196 
 
 Humboldt Lumber Manufact- 
 urers' Ass'n V. Christo- 
 
 pherson ("The Printer"), 
 (1896), 44 U. S. App. 434; 
 19 C. C. A. 481; 73 Fed. 
 Rep. 239 . . . . 169 
 
 Humboldt Lumber Manufact- 
 urers' Ass'n, In re (1894), 
 60 Fed. Rep. 438 . 169, 170 
 
 Hunter v. Columbia, etc. R. R. 
 Co. (1898), 41 S. C. 86; 19 
 S. E. Rep. 197 . . . 170 
 
 Huntington, City of, v. Mahan 
 (1805), 142 Ind. 695; 43 N. E. 
 Rep. 463; 51 Am. St. Rep. 
 
 200 . . . . 275, 278 
 Hurford v. State (1893), 91 
 
 Tenn. 669; 20 S. W. Rep, 
 
 201 . . . . 275,278 
 Huse V. Glover (1886), 119 U. 
 
 S. 543;7S.Ct.Rep. 313 . 113, 
 123, 125, 148 
 
 Huse V. Glover (1883), 15 Fed. 
 
 Rep. 293; 11 Biss. 550 133, 125 
 
 Husen v. Hannibal & St. Jo- 
 seph R. R. Co. (1875), 60 
 Mo. 336 . . . 146, 170 
 
 Hutchinson v. Thompson 
 
 (1889), 9 Ohio, 52 . . 125 
 
 Hynes v. Briggs (1890), 41 Fed. 
 
 Rep. 468 . . . . 278 
 
 Illinois, People of the State of, 
 
 V. St. Louis (1848), 5 Gilm. 
 
 351 . , . 113,120 
 
 Illinois Central R. R. Co. v. 
 
 Illinois (1896), 163 U. S. 
 
 143; 16 S. Ct. Rep. 1096; 
 
 4 Am. & Eng. R Cas. 
 
 (N. S.)354 . . .184 
 Illinois Central R. R Co. v. 
 
 Illinois (1893), 146 U. S. 
 
 887; 13 S. Ct. Rep. 110 . 138, 
 135, 187 
 Illinois Central R R. Co. v. 
 
 People (1893), 143 111. 434; 
 
 38 N. E. Rep. 178; 61 Am. 
 
TABLE OF CASES. 
 
 XXX1U« 
 
 & Eng. R. Cas. 539; 19 
 
 L. R. A. 119 . . . 184 
 
 Illinois Central R. R Co. v. 
 City of New Orleans 
 (1891), 45 Fed. Rep. 3; 3 
 Int. Com. Rep. 575 . 150, 194 
 
 Illinois Central R. R. Co. v. 
 Stone (1884), 20 Fed. Rep. 
 '468 ; 18 Am. & Eng. R. Cas. 
 416 284 
 
 Illinois River Packet Co. v. 
 Peoria Bridge Association 
 (1865), 38 111. 467 118, 121, 125 
 
 Improvement of Navigable 
 Waters (1881),170p.Atty. 
 Gen. 109 . . . Ill, 136 
 
 Improvement of Navigable 
 Waters (1884), 18 Op. Atty. 
 Gen. 64 . . . 110, 136 
 
 Improvement of Navigable 
 Waters of the United 
 States (1880), 16 Op. Atty. 
 Gen. 534 . . . 110, 136 
 
 Indiana, State of, ex reL v. 
 Pullman Palace Car Co. 
 (1883), 16 Fed. Rep. 193; 
 11 Biss. 561 . . . 266 
 
 Indianapolis &Vincennes R. 
 W. Co. V. Backus, Treas, 
 (1893), 133 Ind. 609; 33 N. 
 E. Rep. 443 , . . 257 
 
 Indianapolis, City of, v. Bie- 
 ler (1893), 138 Ind. 30; 36 
 N. E. Rep. 857 . . 77 
 
 Ingraham, Kennedy & Day v. 
 Chicago, R. I. & P. R. R. 
 Co. (1873), 34 lovra, 349 . 135 
 
 Inman Steamship Co. v. 
 
 Tinker (1876), 94 U. S. 238 145, 
 235 
 In re (see name of party). 
 Insurance Co. of North Amer- 
 ica V. Commonwealth 
 (1878), 87 Pa. St 173; 30 
 Am. Rep. 352 . . . 47 . 
 
 Insurance Co. v. Railroad Co. 
 (1881), 104 U.S. 146; 3 Am. 
 & Eng. R. Cas. 260 . . 168 
 
 Interstate Commerce Com- 
 mission, In re (1893), 53 
 Fed. Rep. 476 . . , 393 
 
 Interstate Commerce Com.- 
 mission v. Alabama Mid- 
 land Ry. Co. (1897), 168 
 U. S. 144; 18 S. Ct. Rep. 
 45 390 
 
 Interstate Commerce Com- 
 mission V. Alabama Mid- 
 land Ry. Co. (1896), 74 Fed. 
 Rep. 715; 31 C. C. A. 51; 
 41 U. S. App. 453; 3 Am. 
 & Eng. R. Cas. 638; 5 Int. 
 Com. Rep. 685 . . 290 
 
 Interstate Commerce Com- 
 mission V. Baltimore & 
 Ohio R. R Co. (1892), 145 
 U. S. 263; 13 S. Ct. Rep. 
 844; 49 Am. & Eng. R. 
 Cas. 343 . . . .388 
 
 Interstate Commerce Com- 
 mission V. Baltimore & O. 
 R. R. Co. (1890), 43 Fed. 
 Rep. 37; 45 Am. & Eng. 
 R. Cas. 246; 3 Int. Com. 
 Rep. 192 . . . , 389 
 
 Interstate Commerce Com- 
 mission V. Bellaire, Z. & 
 C. R. Co. (1897), 77 Fed. 
 Rep. 943 . . . .94 
 
 Interstate Commerce Com- 
 mission V. Brimson (1894), 
 154U. S. 447; 155 U. S. 3; 
 14 S. Ct. Rep. 1125; 15 S. 
 Ct. Rep. 19; 61 Am. & Eng, 
 R. Cas. 19 ; 4 Int. Com. Rep. 
 545 . . . 134,291,293 
 
 Interstate Commerce Com- 
 mission V. Brimson (1893), 
 53 Fed. Rep. 476; 53 Am. 
 &Eng.R.Cas.l . . 293 
 
XXXIV 
 
 TABLE OF OASES. 
 
 Interstate Commerce Com- 
 mission V. Cincinnati, N. 
 O. & T. P. Ry. Co. (1897), 
 167 U. S. 479; 17 S. Ct. 
 Eep. 896 . . . 289,290 
 
 Interstate Commerce Com- 
 mission V. Cincinnati, N. 
 O. & T. P. By. Co. (1896), 
 76 Fed. Rep. 183; 4Am. & 
 Eng. R. Cas. (N. S.) 673 289, 290 
 
 Interstate Commerce Com- 
 mission V. Cincinnati, N. 
 O. & T. P. Ry. Co. (1896), 
 162 U. S. 184; 16 S. Ct. 
 Rep. 700; 4 Am. & Eng. 
 R. Cas. (N. S.) 223; 5 Int. 
 Com. Rep. 391 . . 290 
 
 Interstate Commerce Com- 
 mission V. Cincinnati, N. 
 O. & T. P. Ry. Co. (1894), 
 13 U. S. App. 730; 4 Int. 
 Com. Rep. 582; 9 C. C. A. 
 689 290 
 
 Interstate Commerce Com- 
 mission V. Cincinnati, N. 
 O. & T. P. Ry. Co. (1893), 
 66 Fed. Eep. 925; 54 Am. 
 & Eng. R Cas. 365; 4 Int. 
 Com. Rep. 332 . . 290 
 
 Interstate Commerce Com- 
 mission V. Louisville & N. 
 R. Co. (1896), 73 Fed. Rep. 
 409; 5 Int. Com. Rep. 656 290 
 
 Interstate Commerce Com- 
 mission V. Lehigh Valley 
 R. Co. (1896), 74 Fed. Rep. 
 784; 5 Int. Com. Rep. 643 290 
 
 Interstate Commerce Com- 
 mission V. Northeastern 
 R. Co. of South Carolina 
 (1897), 42 U. S. App. 603; 
 27 C. C. A. 631; 83 Fed. 
 Rep. 611 . . . .290 
 
 Interstate Commerce Com- 
 mission V. Northeastern 
 
 E. Co. (1896), 74 Fed. Rep. 
 70; 5 Int. Com. Rep. 650; 
 4 Am. & Eng. R. Cas. (N. 
 S.)235 . . . .390 
 Irvin V. New Orleans, St. 
 Louis & Chicago R. R. Co. 
 (1879), 94 IlL 105 . , 250 
 
 Jackson v. Stanfleld (1894), 
 137 Ind. 592; 36 N. E. Rep. 
 345; 37 N. E. Rep, 14; 25 
 L. R. A. 588 . . . 321 
 
 Jackson Mining Co. v. Au- 
 ditor-General (1875), 32 
 Mich. 488 193, 223, 234, 335, 328 
 
 Jaoobson v. Wisconsin, M. & 
 P. Ry. Co. (Minn., 1898), 
 74 N. W. Rep. 893; 40 L. 
 R. A. 389 , . . 179 
 
 James Gray, Owners of, v. 
 John Eraser, Owners of 
 (1858), 31 How. 184 . . 143 
 
 Jamieson v. Indiana Natural 
 Gas & Oil Co. (1891), 128 
 Ind. 555; 28 N. E. Rep. 76; 
 34 Am. & Eng. Corp. Cas. 
 1; 12 L. R. A. 653 . . 195 
 
 Janney v. Columbian Ins. Co. 
 
 (1825), 10 Wheat. 411 . 105 
 
 Jarvis v. Rlggin (1879), 94 IlL 
 
 164 . . . . 171, 193 
 
 Jervey, Ex parte (1895), 66 
 
 Fed. Rep. 957 . . . 79 
 
 Jervey v. The Carolina (1895), 
 
 66 Fed. Rep. 1013 75, 98, 175 
 
 John M. Welch, The (Broeck 
 V. Barge John M. Welch) 
 (1880), 18 Blatch. 54; 2 
 Fed. Rep. 364 . . 145, 150 
 
 Johnson v Chicago & Pacific 
 Elevator Co. (1886), 119 
 U. S. 388; 7 S. Ct. Rep. 
 254 105 
 
 Johnson v. Drummond (1871), 
 20Gratt. 419 . 145,153,198 
 
TABLE OF OASES. 
 
 XXXT 
 
 Johnson v. Loper (1884), 46 N. 
 
 J. L. 331 . . . . 153 
 Johnson v. M'Intosh (1833), 8 
 
 Wheat. 543 . . 353, 353 
 Johnson, Collector, v. De 
 
 Bary - Baya Merchants' 
 
 Line (1896), 37 Fla. 499; 19 
 
 a Rep. 640; 37 L. R. A. 
 
 518 235 
 
 Jolly et al. v. Terra Haute 
 
 Bridge (1853), 6 McLean, 
 
 237; 13 Fed. Cas. 919 115, 118, 
 131, 135 
 Jones, Administrator, et al. v. 
 
 United States (1880), 48 
 
 Wis. 385; 4 N. W. Rep. 
 
 519 315 
 
 Jones V. Eisler (1865), 3 Kan. 
 
 134 851 
 
 Jones V. The People (1853), 14 
 
 111. 196 . . . .73 
 Jones V. Surprise (1886), 64 N, 
 
 H. 243; 9 Atl. Rep. 384 . 73 
 Jones & Tibbetts v. Hard 
 
 (1860), 33 Vt. 481 . . 78 
 Joseph V. Randolph (1883), 71 
 
 Ala. 499; 46 Am. Rep. 347 39, 
 193, 193, 317, 225 
 Jung Brewing Co. v. Levisy 
 
 (Tenn., 1896), 37 S. W. Rep. 
 
 889 196 
 
 Kaeiser v. Illinois Central R 
 R Co. (1883), 18 Fed. Rep. 
 151; 5 MoCrary, 496; 16 
 Am. & Eng. R. Cas. 40 . 284 
 
 Kansas Indians, The (1866), 5 
 
 Wall. 737 . . 344,345 
 
 Katie, The (1889), 40 Fed. Rep. 
 
 480; 7 L. R. A. 55 . .106 
 
 Kauffman Milling Co. v. Mis- 
 souri P. R Co. et al. (1890), 
 3 Int. Com. Rep. 400 . 287 
 
 Keating Implement & Ma* 
 chine Ca v. Favorite Car- 
 riage Ca (1896), 12 Tex. 
 
 Ciy App. 666; 35 S. W. 
 Rep. 417 . . . . 196 
 
 Keator Lumber Co. (J. S.) 
 et al. V. St. Croix Boom 
 Corporation (1888), 72 Wis. 
 62; 38 N. W. Rep. 529; 7 
 Am. St. Rep. 837 113, 115, 135 
 
 Keith V. State (1890), 91 Ala. 
 3; 8 S. Rep. 353; 10 L. R. 
 A. 430 . . . . 83 
 
 Keller, Joseph, et al. v. The 
 State (1857), 11 Md. 525; 
 69 Am. Dec. 326 . . 71 
 
 Kelley v. Rhoads(Wyo., 1898), 
 
 51 Pac. Rep. 593 . 45, 63, 64 
 
 Kellogg V. The Union Com- 
 pany (1837), 13 Conn. 7 . 113 
 
 Kemp ex dem. Pollard's Heirs 
 
 V. Thorp (1843), 3 Ala. 291 135 
 
 Kemp V. Western Union Tele- 
 graph Co. (1890), 38 Neb. 
 661; 44 N. W. Rep. 1064; 
 30 Am. & Eng. Corp. Cas. 
 607 166 
 
 Kenney v. Hannibal & St, Joe 
 
 R. R. Co. (1876), 63 Mo. 476 147, 
 194 
 
 Kentucky & I. Bridge Co. v. 
 Louisville & N. R Co. 
 (1889), 37 Fed. Rep. 567; 3 
 L. R. A. 289; 3 Int. Com. 
 Rep. 351 . . . . 289 
 
 Keokuk, City of, v. The Keo- 
 kuk Northern Line Packet 
 Co. (1876), 45 Iowa, 196 114, 145 
 
 Kerby v. Lewis (1842), 6 Upp. 
 
 Can. Q. B. (O. S.) 207 . 158 
 
 Kidd V. Pearson (1888), 128 
 U. S.1; S. Ct. Rep. 6; 23 
 Am. & Eng. Corp. Cas. 
 321; 3 Int. Com. Rep. 233 43,55 
 
 KiefEer, Ex parte (1889), 40 
 
 Fed, Rep. 399 . . 189, 194 
 
 Kimball v. Atchison, T. & S. 
 F. R Co. (1891), 46 Fed. 
 Eep. 888 . . . . 303 
 
XXXYl 
 
 TABLE OP CASES. 
 
 Kimmel, In re (1890), 41 Fed. 
 
 Eep. 775; 3 Int. Com. Rep. 
 
 114 . . . . 275, 378 
 Kimmish v. Ball (1889), 129 
 
 U.S.217;9S.Ct.Rep.277; 
 
 2 Int. Com. Eep. 407 56, 173 
 Kindel v. Beck & Pauli Litho. 
 
 Co. (1893), 19 Colo. 310; 35 
 
 Pao. Rep. 538 . . . 195 
 King V. McEvoy (1863), 4 
 
 Allen, 110 .. . 85 
 King & Baker v. Am. Transp. 
 
 Co. (1859), 1 Flip. 1; 14 
 
 Fed. Cas. 511 , . , 105 
 Kinnavey v. Terminal R. 
 
 Ass'n of St. Louis (1897), 
 
 81 Fed. Rep. 803 . . 163 
 Kinnebrew, Ex parte (1888), 
 
 35 Fed. Rep. 53 . . 377 
 Kirtland v. Hotchkiss (1879), 
 
 lOOU. S. 491 ... 48 
 Knowlton v. Doherty (1895), 
 
 87 Me. 518; 33 Atl. Rep. 
 
 18; 47 Am. St. Rep. 349 84, 177 
 Knoxville & O. R. Co. v. Har- 
 ris (1897), 99 Tenn. 684; 43 
 
 S. W. Rep. 115 . . 337 
 
 Koehler, Ex parte (1887), 30 
 
 Fed. Rep. 867; 13 Sawy. 
 
 341; 1 Int. Com. Rep. 28; 
 
 30 Am. & Eng. R. Cas. 71 63, 
 91,93 
 Koehler, Ex parte (1885), 25 
 
 Fed. Rep. 73; 31 Am. & 
 
 Eng. R. Cas. 53, 58 . .91 
 Kohl V. United States (1875), 
 
 91U. S. 367 . . .314 
 Kohn V. Melcher (1887), 39 
 
 Fed. Rep. 433 . . . 69 
 
 Lacey v. Palmer (1896), 93 Va. 
 159; 34 S. E. Rep. 930; 57 
 Am. St. Rep. 795 . . 56 
 
 Lafarier v. Grand Trunk Ry. 
 Co. (1893), 84 Me. 386; 34 
 
 Atl. Rep. 848; 52 Am. & 
 
 Eng. R. Cas. 326; 17 L. E. 
 
 A. Ill; 4 Int. Com. Rep. 
 
 198 184 
 
 Lake Shore & Michigan South- 
 ern Ry. Co. V. Ohio (1897), 
 
 165 U. S. 365; 17 S. Ct. 
 
 Rep. 357 . . . 118, 131 
 Lake Shore & Michigan South- 
 ern Ry. Co. V. State ex rel. 
 
 Lawrence (1894), 8 Ohio 
 
 C. C. Eep. 320; 1 Ohio Dec. 
 
 448 184 
 
 Landa v. Hoick & Co. (1895), 
 
 139 Mo. 663; 31 S. W. Rep. 
 
 900; 50 Am. St. Rep. 459; 
 
 5 Int. Com. Rep. 254 . 177 
 Lang V. Lynch (1889), 38 Fed. 
 
 Rep. 489; 4 L. R. A. 831 . 73 
 Langdon v. Branch (1888), 37 
 
 Fed. Rep. 449 . . . 303 
 Langford, In re (1893), 57 Fed. 
 
 Rep. 570; 4 Int. Com. Rep. 
 
 437 79 
 
 La Plaisance Bay Harbor Co. 
 
 V. City of Monroe (1843), 
 
 Walker's Ch. (Mich.) 155 135 
 Lawrence v. Hodges (1885), 93 
 
 N. C. 673; 53 Am. Rep. 436 102 
 Lawton v. Steele (1894), 153 
 
 U. S. 133; 14 S. Ct. Eep. 
 
 499 150 
 
 Leathers v. Aiken (1881), 9 
 
 Fed. Eep. 679 . . . 145 
 Leavell v. Western Union 
 
 Tel. Co. (1895), 116 N. C. 
 
 211; 21 S. E. Eep. 391: 47 
 
 Am. St. Eep. 798; 37 L.E. 
 
 A. 843; 5 Int. Com. Eep. 
 
 358 89 
 
 Lebolt, In re (1896), 77 Fed. 
 
 Eep. 587 . . . .69 
 Lees V. United States (1893), 
 
 150 U. S. 476; 14 S. Ct. 
 
 Eep, 163 . . . 304, 337 
 
TABLE OF OASES. 
 
 XXXVU 
 
 Lehigh Valley E. E. Co. t. 
 Commonwealth (1888), 1 
 Monaghan (Pa.), 45; 17 
 AtL Rep. 179; 3 Int. Com. 
 Rep. 236 . . 90, 366, 268 
 
 Lehigh Valley R. R. Co. v. 
 Pennsylvania (1891), 145 
 U. 8. 193, 305; 13 S. Ct. 
 Rep. 806, 809; 53 Am. & 
 Eng. R Cas. 679; 4 Int. 
 Com. Rep. 87 . . .90 
 
 Leidersdorf v. Flint (1878), 8 
 
 Biss. 337; 15 Fed. Cas. 360 317 
 
 Leisy v. Hardin (1890), 135 
 U. S. 100; 10 S. Ct. Rep. 
 681; 3 Int. Com. Rep. 36 28, 
 34:, 56, 59, 69, 84, 187, 193, 205, 336 
 
 Leisy v. Hardin (1889), 78 
 Iowa, 286; 43 N. W. Rep. 
 188 . . . . 69, 71 
 
 Leloup V. Port of Mobile 
 (1888), 127 U. S. 640; 8 S. 
 Ct. Rep. 1380; 31 Am. & 
 Eng. Corp. Cas. 36; 3 Int. 
 Com. Rep. 134 . 46, 189, 193, 
 301, 349, 369, 275 
 
 Lemmon v. The People (1860), 
 
 20N. Y. 562 ... 40 
 
 Lemmon v. The People (1857), 
 
 26 Barb. 270 . . . 40 
 
 Lewis V. City of Portland 
 (1893), 25 Oreg. 183; 35 
 Pac. Rep. 256; 43 Am, St. 
 Rep. 772; 23 L R A. 736 135 
 
 Lewis V. Irby Cigar & To- 
 bacco Co. (Tex. Civ. App., 
 1898), 45 S. W. Rep. 476 . 275 
 
 License Cases (1847), 5 How. 
 
 504 . . . 18,33,33,70 
 
 License Tax Cases (1886), 5 
 
 Wall. 462 . 56, 60, 66, 140 
 
 Ligare v. Chicago, Madison & 
 Northern R R Co. (1897), 
 166 IlL 249; 46 N. E. Rep. 
 803 125 
 
 Lightburne v. Taxing Dis- 
 trict (1880), 4 Lea, 219 . 26» 
 
 Lincks v. Amend (1895) (N. J. 
 
 Ch.), 33 AtL Rep. 765 . Ill 
 
 Lincoln v. Smith (1855), 27 Vt. 
 
 828 68 
 
 Linehan Ry. Transfer Co. v. 
 Pendergrass (1895), 36 U. S. 
 App. 48; 16 C. C. A. 585; 
 70 Fed. Rep. 1 . . .236 
 
 Lin Sing v. Washburn (1863), 
 
 30 Cal. 534 . 45, 186, 193 
 Lipfeld V. Railroad Co. (1893), 
 
 41 S. C. 285; 19 S. E. Rep. 
 
 497 170 
 
 Lippman, Ex parte (Cal., 1894), 
 
 35 Pac. Rep. 557 . . 193 
 List V. Commonwealth (1888), 
 
 118 Pa. St. 322; 13 Atl. 
 
 Rep. 377; 22 Am. & Eng. 
 
 Corp. Cas. 660; lint. Com. 
 
 Rep. 784 . , . 47,178 
 Lister v. Newark P. R. Co. 
 
 (1888), 36 N. J. Eq. (9 Stew.) 
 
 477 11» 
 
 Littlefield v. Maxwell (1850), 
 
 31 Me. 134; 50 Am. Dea 
 
 653 137 
 
 Little Rock, Miss. River & 
 
 Texas R. R Co. v. Brooks 
 
 et aL (1882), 39 Ark. 403; 
 
 43 Am. Rep. 277; 17 Am. 
 
 & Eng. R. Cas. 152 . . 98 
 Little Rock & Ft. S. Ry. Co. 
 
 V. Hanniford (1887), 49 
 
 Ark. 291; 5 S. W. Rep. 394; 
 
 1 Int. Com. Rep. 580; 30 
 
 Am. & Eng. R Cas! 67 . 183 
 Liverpool Insurance Co. v. 
 
 Massachusetts (1870), 10 
 
 Wall. 566 ... 47 
 
 Liverpool & Great Western 
 
 Steam. Co. v. Phenix Ins. 
 
 Co. (1889), 129 U. S. 397; 
 
 9 S. Ct Rep. 469 164, 167, 16» 
 
XXXVUl 
 
 TABLE OB- OASES. 
 
 Livingston v. Ogden & Gib- 
 bons (1819), 4 Johns. Cb. 48 110 
 Livingston v. Van Ingen 
 
 (1813), 9 Johns. 507 . , 110 
 Lizzie E., The (1887), 30 Fed. 
 
 Rep. 876 . . . .145 
 Loeb, Ex parte (1896), 73 Fed. 
 
 Rep. 657 . . . . 194 
 Lord V. Steamship Co. (1880), 
 
 103 U. S. 541 . . 86, 89, 105 
 Lottawanna, The (1874), 31 
 
 "Wall. 558 . ., . 97 
 
 Louisa Simpson, The (1871), 
 
 3 Sawy. 57; 15 Fed. Cas. 
 
 953 . . . 60,313,850 
 
 Louisville Bridge Co. v. City 
 
 of Louisville (1883), 81 Ky. 
 
 189; 3 Am. & Eng. Corp. 
 
 Cas. 503 . . . . 856 
 Louisville, N. O. & T. Ry. Co. 
 
 V. The State (1889), 66 
 
 Miss. 663; 6 S. Rep. 303; 
 
 14 Am. St. Rep. 599; 5 L. 
 
 R. A. 133; 3 Int. Com. Rep. 
 
 615; 39 Am. & Eng. R. 
 
 Cas. 399 . . . .174 
 Louisville, N. O. & T. R. R. Co. 
 
 V. Mississippi (1890), 133 
 
 U. S. 587; 10 S. Ct. Rep. 
 
 348; 41 Am. & Eng. R. 
 
 Cas. 36; 3 Int. Com. Rep. 
 
 801; 1 Am. Rid. & Corp. 
 
 Rep. 734 . . . 60, 87, 174 
 Louisville & Nashville R. Co. 
 
 V. Commonwealth (1895), 
 
 97Ky. 675; 31 S. W. Rep. 
 
 476 303 
 
 Louisville & Nashville R Co. 
 
 V. Kentucky (1896), 161 
 
 U. S. 677; 16 S. Ct. Rep. 
 
 714; 3 Am. & Eng. R. Cas. 
 
 (N. S.) 525 ' . . . 803 
 Louisville & N. R. Co. v. R. R. 
 
 Com. of Tennessee (1884), 
 - 19 Fed. Rep. 679 61, 188, 384, 
 394, 301 
 
 Low V. Austin (1871), 13 Wall. 
 
 29 . . . . 67,336 
 
 Low V. Commissioners of Pi- 
 lotage (1830), R. M. Charlt 
 803 141 
 
 Lumberville Bridge Co. v. As- 
 sessors (1893), 55 N. J. L. 
 529; 36 Atl. Rep. 711; 35 
 L. R. A. 134; 43 Am. & 
 Eng. Corp. Cas. 646 38, 339, 
 356, 303 
 
 Luxton V. North River Bridge 
 Co. (1894), 153 U. S. 525; 
 14 S. Ct. Rep. 891 . Ill, 314 
 
 Lyng V. Michigan (1890), 135 
 U. S. 161; 10 S. Ct. 
 Rep. 735; 3 Int. Com. Rep. 
 148 . . . . 34i69 
 
 Lyons-Thomas Hardware Co. 
 V. Reading Hardware Co. 
 (Tex. Civ. App., 1893), 31 
 S. W. Rep. 800 . 178, 195 
 
 McAllister, In re (1893), 51 Fed. 
 
 Rep. 383 . . 69, 84, 85, 194 
 McCall V. California (1890), 136 
 
 U. S. 104; 10 S. Ct. Rep. 
 
 881; 45 Am. & Eng. R. 
 
 Cas. 1; 8 Int. Com. Rep. 
 
 181 , . . 61,270,374 
 McCandless v. Richmond & D. 
 
 R. R Co. (1893), 38 S. C, 
 
 103; 16 S. E. Rep. 429; 61 
 
 Am. & Eng. R. Cas. 534; 
 
 18 L. R. A. 440 . . 170 
 McCann v. Eddy (1896), 138 Mo. 
 
 69;38S. W. Rep.71;3Am. 
 
 & Eng. R Cas. (N. S.) 683; 
 
 35 L. R. A. 110 . . 168 
 McClelland v. Mayor of Mari- 
 etta (1895), 96 Ga. 749; 23 
 
 S. E. Rep. 339 . . 375, 378 
 McConn v. Roberts (1868), 25 
 
 Iowa, 153 . . 61, 63 
 McCready's Case (1876), 37 
 
 Gratt. 985 . 151 
 
ta:ble of cases. 
 
 xxxix 
 
 McCreadyv. Virginia (1876), 
 
 94 U.S. 391 . . 98,151 
 McCreary v. State (1883), 73 
 
 Ala. 480 . . . 85,377 
 McCuUoch V. The State of 
 
 Maryland (1819), 4 Wheat. 
 
 316 . . . 200, 230, 315 
 McCuUough V. Brown (1894), 
 
 41 S. C. 220; 19 S. E. Rep. 
 
 458; 23L.E.A.410 . . 80 
 McDaniel v. Chicago & N. W. 
 
 R R. Co. (1868), 34 Iowa, 
 
 413 167 
 
 McDonald v. The State (1886), 
 
 81 Ala. 379; 3 S. Rep. 839; 
 
 60 Am. Rep. 158 . . 185 
 McGregor v. Cone (Iowa, 1898), 
 
 73 N. W. Rep. 1041; (39 
 
 L. R. A. 484 . . 83, 85 
 
 McGuinness v. Bligh (1874), 11 
 
 R.1. 94 , . . 85,177 
 McGwigan v. Wilmington & 
 
 Weldon R. Co. (1886), 95 
 
 N. C. 438 . . . 163, 190 
 McLaughlin v. City of South 
 
 Bend (1890), 126 Ind. 471; 
 
 36 N. E. Rep. 185; 10 L. R. 
 
 A. 357; 34 Am. & Eng. 
 
 Corp. Cas. 187 . . 375, 378 
 McLean v. Charlotte, C. & A. 
 
 R.R.CO. (1887), 96N. 0.1; 
 
 4S. E. Rep. 769 . . 163 
 McNaughton v. MoGirl (1897), 
 
 30 Mont. 134; 49 Pac. Rep. 
 
 651 ; 38 L. R. A. 367 61, 193, 196 
 McNeil, Ex parte (1871), 13 
 
 Wall. 336 ... 141 
 
 McReynolds, etc. v. Small- 
 house (1871), 8 Bush (Ky.), 
 
 447 118 
 
 Macauley v. Tierney (1895), 19 
 
 RL355;83Atl.Rep.l;37 
 
 L. R. A. 455 . . . 331 
 Machine Co. v. Gage (1879), 
 
 lOOU. S. 676 . . .152 
 
 Mackey v. Coxe (1855), 18 How. 
 
 100 343 
 
 Madison, City of, v. Abbott 
 
 (1888), 118 Ind. 337; 31 N. 
 
 E. Rep. 28; 24 Am. & Eng. 
 
 Corp. Cas. Ill . . 158, 159 
 Mager v. Grima (1850), 8 How. 
 
 490 55 
 
 Magner v. The People (1881), 
 
 97 111.320 . . .150 
 Maier, Ex parte (1894), 103 CaL 
 
 476; 37 Pac. Rep. 402; 43 
 
 Am. St. Rep. 139 . . 150 
 Maine v. Grand Trunk Ry. Ca 
 
 (1891), 143 U. S. 217; 12 S. 
 
 Ct. Rep. 121, 163; 48 Am, 
 
 & Eng. R. Cas. 602; 3 Int. 
 
 Com. Rep. 807 91, 203, 204, 366, 
 373, 283, 284, 397, 301, 303 
 Maltby v. Reading & Colum- 
 bia R. R. Co. (1866), 53 Pa. 
 
 St. 140 . . . . 338 
 Manchester v. Massachusetts 
 
 (1891), 139 U. S. 340; 11 S. 
 
 Ct. Rep. 559 . , 151, 153 
 Manhasset, The (1884), 18 Fed. 
 
 Rep. 918 . . . . 169 
 Manistee River Improvement 
 
 Co. V. Sands (1884), 53 Mich. 
 
 593; 19 N. W. Rep. 199 . 135 
 Marshall v. Grimes (1866), 41 
 
 Miss. 37 . . . 159, 300 
 Marshalltown, City of, v. Blum 
 
 (1883), 58 Iowa, 184; 13 N. 
 
 W. Rep. 366; 43 Am. Rep. 
 
 115 . . . . 338, 280 
 Martin, Ex parte (1871), 7 Nev. 
 
 140; 8 Am. Rep. 707 46, 49 
 
 Martin v. Town of Rosedale 
 
 (1891), 130 Ind. 109; 29 N, 
 
 E. Rep. 410; 39 Am. & Eng. 
 
 Corp. Cas. 97 . . 375,378 
 Marye v. Baltimore & Ohio R. 
 
 R. Co. (1888), 127 U. S. 117; 
 
 8 S. Ct. Rep. 1037 . . 239 
 
xl 
 
 TABLE OP CASES. 
 
 Massachusetts v. Western Un- 
 ion Telegraph Co. (1890), 
 141 U.S. 40; llS.Ct.Eep. 
 889; 35 Am. & Eng. Corp. 
 Cas. 29 . . . .248 
 
 Master, etc' of the Port of New 
 Orleans v. E. W. Foster 
 (1874), 26 La. Ann. 105 . 156 
 
 Master, etc. of the Port of New- 
 Orleans V. Prats (1845), 10 
 Eob. (La.) 459 . . . 143 
 
 Mattingly v. Pennsylvania Ca 
 (1890), 2 Int. Com. Eep. 
 806; 3 Int. Com. Comm. 
 Eep. 593 . . . 91, 98 
 
 Mattson, In re (1895), 69 Fed. 
 
 Eep. 535 . . . . 151 
 
 May, In re (1897), 82 Fed. Eep. 
 
 432 82 
 
 Mayor v. Fergueson (1881), 33 
 
 Hun, 594 . . 57,143 
 
 Memphis v. Carrington (1892), 
 91Tenn.511;19S.W.Eep. 
 673 47 
 
 Memphis & Little Eook E. Co, 
 V. Ndlaa (1883), 14 Fed. 
 Eep. 533 . . . . S68 
 
 Menard v. A spasia (1831), 5 Pet. 
 
 505 123 
 
 Mercantile Trust Co. v. At- 
 lantic & P. E. Co. (1894), 
 63 Fed. Eep. 513 . . 46 
 
 Mercer v. K. C, St. Jo. & O. 
 B. E. E. Co. (1875), 60 Mo. 
 397 . . . . 147,194 
 
 Merriman v. Knox (1893), 99 
 
 Ala. 93; 11 S. Eep. 741 . 154, 
 155, 157 
 
 Merz Capsule Co. v. United 
 States Capsule Co. (1895), 
 67 Fed. Eep. 414 . . 826 
 
 Meservey v. Gray (1867), 55 
 
 Me. 540 . . . . 177 
 
 Metropolitan Bank v. Van 
 
 Dyck (1863), 27 N. Y. 400 12 
 
 Metropolitan Board of Excise 
 
 V. Barrie et al. (1866), 84 
 
 N. Y. 657 ... 73 
 
 Metz V. Hagerty, Auditor 
 
 (1894), 51 Ohio St. 521; 38 
 
 N. E. Eep. 11 . . . 279 
 Meuer v. Chicago, M. & St. P. 
 
 Ey. Co. (S. D., 1898), 75 N. 
 
 W. Eep. 823 . . 167, 168 
 Mexican Nat. E. Co. v. Savage 
 
 (Tex. Civ. App., 1897), 41 
 
 S. W. Eep.663 . .93 
 
 Midland Terminal Ferry Co. 
 
 V. Wilson (1877), 1 Stew. 
 
 (38 N. J. Eq.) 537 . . 160 
 Milan Milling Co. v. Gorton 
 
 (1894), 93 Tenn. 590; 37 S. 
 
 W. Eep. 971; 36 L. E. A. 
 
 135; 4 Int. Com. Eep. 851 195 
 Milk Producers' Ass'n v. Dela- 
 ware, Lack. & W. E. Co. 
 
 et al. (1897), 7 Int. Com. 
 
 Eep. 93 . . . .89 
 Milne v. Mayor, etc. of New 
 
 York (1838), 3 Paine, 429; 
 
 17 Fed. Cas. 406 . . 31 
 Miller v. Goodman (1897), 91 
 
 Tex. 41; 40 S. W. Eep. 
 
 718; 7 Am. & Eng. Corp. 
 
 Cas. (N. S.) 177 ,. . 195 
 Miller v. Mayor of New York 
 
 (1883), 109 U. S. 385; 3 S. 
 
 Ct. Eep. 338 110, 111, 115, 130, 
 311 
 Miller v. The Mayor (1880), 18 
 
 Blatch. 313; 10 Fed. Eep. 
 
 513 311 
 
 Miller v. The Mayor, etc. of 
 
 New York (1876), 13 
 
 Blatch. 469; 17 Fed. Cas. 
 
 341 Ill 
 
 Milnor v. New Jersey E. E. 
 
 Co. et al. (The Passaic 
 
 Bridges) (1857), 3 Wall. 
 
 782; 17 Fed. Cas. 412; 6 
 
TABLE OF CASES. 
 
 xli 
 
 Am. Law Eeg. 6; 16 Lawy. 
 Ed. U. S. Sup. Ct. Rep., 
 Append. 1 . 118, 119, 120 
 
 Milnor v. New Jersey R. R. & 
 Transp. Co. et al. (1862), 
 16 Lawy. Co-op. U. S. Rep. 
 799 118 
 
 Mills V. St. Clair Co, (1845), 2 
 
 Gilm. 197 . . 157, 300 
 
 Mills V. United States (1891), 
 46 Fed. Rep. 738; 12 L. R. 
 A. 673 . . 110,111,136 
 
 Milwaukee Gas Light Co. v. 
 Schooner " Gamecock " 
 (1868), 23 Wis. 144; 99 Am. 
 Dec. 138 . . . . 122 
 
 Minneapolis & St. Louis Ry. 
 Co. V. Beckwith (1889), 
 129 U. S. 26; 9 S. Ct. Rep. 
 207; 38 Am. & Eng. E, 
 Cas. 267 .... 41 
 
 Minneapolis, St Paul & S. S. 
 M. R. Co. V. Milner (1893), 
 57 Fed. Rep. 276 . . 146 
 
 Minnesota v. Barber (1890), 
 136 U. S. 313; 10 S. Ct. 
 Rep. 863; 33 Am. & Eng. 
 Corp. Cas. 405; 8 Int. Com. 
 Rep. 185 . 58, 141, 150, 194 
 
 Minor, In re (1895), 69 Fed. Rep. 
 
 233 ; 5 Int. Com. Rep. 339 69, 82 
 
 Minot V. Philadelphia, Wil- 
 mington, etc. R. Co. (1873), 
 18 Wall. 206 . 229, 240, 263 
 
 Minot V. Philadelphia, Wil- 
 mington, etc. R. R Co. 
 (1870), 2 Abb, U. S. Rep. 
 323; 17 Fed. Cas. 458; 7 
 Phila. 555 ... 229 
 
 Mississippi & Missouri R. R. 
 Co. V, Ward (1862), 3 
 Black, 485 . . .115 
 
 Mississippi River Bridge Co. 
 V. Lonergan (1879), 91 111. 
 508 . . . Ill, 131, 136 
 
 Missouri, K!. & T. Ry. Co. of 
 Texas v. Fookes (Tex. Civ. 
 App., 1897), 40 S. W. Rep. 
 858 184 
 
 Missouri, K. & T. Ry, Co. v, 
 Haber (1898), 169 U.S. 613; 
 18 S. Ct. Rep. 488 . 56, 173 
 
 Missouri, K & T. Ry. Co. v, 
 Haber (1896), 56 Kan. 694; 
 44 Pac. Rep, 632; 3 Am. 
 & Eng. R. Cas. (N. S.) 471 173 
 
 Missouri, K. & T. R. Co, v. 
 Withers (Tex, Civ, App., 
 1897), 40 S. W. Rep. 1078 169 
 
 Missouri Pac, Ry, Co, v. Fin- 
 ley (1888), 38 Kan, 550; 16 
 Pac, Rep, 951 . . 56,171 
 
 Missouri Pac. Ry. Co. v. Inter- 
 national Marine Ins. Co, 
 (1893), 84 Tex. 149; 19 S. 
 W, Rep. 459 . . . 167 
 
 Missouri Pac. Ry. Co. v. 
 Mackey (1888), 137 U. S. 
 205; 8S. Ct. Rep. 1161;33 
 Am. & Eng. R. Cas. 390 . 41 
 
 Missouri Pac, Ry, Co, v. Sher- 
 wood, Thompson & Co. 
 (1892), 84 Tex, 125; 19 S, 
 W. Rep. 455; 17 L. R, A, 
 643; 4 Int, Com, Rep, 240 91, 
 167 
 
 Mitchell, In re (1894), 63 Fed. 
 Rep. 576; 5 Int. Com. Rep. 
 767 . . . . 375, 278 
 
 Mitchell V. Steelman (1857), 8 
 
 Cal. 363 . . . 101,193 
 
 Mobile, Mayor, etc, of, v, Es- 
 lava (1839), 9 Port, (Ala.) 
 577; 33 Am. Dec. 335 . 135 
 
 Mobile Ins. Co. v. Railroad Co. 
 (1894), 41 S, C. 408; 19 S, 
 E, Rep. 858; 44 Am. St 
 Rep. 735 . . . . 170 
 
 Mobile & Ohio R. Co, v, Dis- 
 mukes (1881), 94 Ala. 131; 
 
xlii 
 
 TABLE OF CASES. 
 
 10 S. Rep. 289; 17 L. R. A. 
 
 183; 49 Am. & Eng. R. Cas. 
 
 43; 4 Int. Com. Rep. 200 183, 
 284, 289 
 Mobile & Ohio R Co. v. Ses- 
 sions (1886), 38 Ted. Rep. 
 
 593 284 
 
 Mobile, Mayor & Alderman 
 
 of, V. Waring (1867), 41 
 
 Ala. 189 . . . , 375 
 Mobile, Port of, v, Leioup 
 
 (1884), 76 Ala. 401 . 349, 368 
 Moline Plow Co. v. Wilkinson 
 
 (1895), 105 Mich. 57; 63 N. 
 
 W. Rep. 1119 . . .301 
 Monongahela Navigation Co. 
 
 V. United States (1893), 
 
 148 U. S. 312; 13 S. Ct. 
 
 Rep. 633 . 110, 113, 136, 315 
 Montello, The (1874), 30 Wall. 
 
 430 . . . 100, 101, 104 
 Montello, The (1870), 11 Wall. 
 
 411 . . . . 98,99 
 
 Montgomery's Appeal (1890), 
 
 136Pa.St. 96;30Atl. Rep. 
 
 399; 9 L. R A. 369 . . 303 
 Moor V. Veazie (1850), 32 Me. 
 
 343; 53 Am. Deo. 655 . 99 
 Moore v. American Transp. 
 
 Co. (1860), 24 How. 1 95, 105 
 Moore v. Bahr (1897), 83 Fed. 
 
 Rep. 19 . . . 81, 84 
 
 Moore v. City of Eufaula 
 
 (1893), 97 Ala. 670; 11 S. 
 
 Rep. 931; 39 Am. & Eng. 
 
 Corp. Cas. 610 . 46, 237, 249 
 Moore v. Sanborn (1853), 3 
 
 Mich. 519; 59 Am. Dec. 
 
 209 . . . . 100,134 
 Moran v. New Orleans (1884), 
 
 113 U. S. 69; 5 S. Ct Rep. 
 
 38; 5 Am. & Eng. Corp. 
 
 Cas. 311 . . 263, 269, 275 
 Moreno v. Sullivan (1882), 19 
 
 Fla. 200 . . 113, 116, 136 
 
 Morgan v. King (1854), 18 
 
 Barb. 277 . . .115 
 
 Morgan v. Parham (1873), 16 
 
 Wall. 471 229, 234, 336, 249 
 
 Morgan's Steamship Co. v. 
 
 Louisiana Board of 
 
 Health (1886), 118 U. S. 
 
 455; 6 S. Ct. Rep. 1114 56, 139, 
 146, 148, 150 
 Mork V. Commonwealth 
 
 (1870), 6 Bush, 397 . . 277 
 Morrill v. The State (1875), 38 
 
 Wis. 428; 20 Am. Rep, 
 
 13 280 
 
 Morris & Cummings v. State 
 
 ex rel. Gusset (1884), 63 
 
 Tex. 738 . . . . 114 
 Morse v. O'Connell (1893), 7 
 
 Wash. 117; 34 Pao. Rep. 
 
 436 135 
 
 Moses Taylor, The (1866), 4 
 
 Wall. 411 . . 95, 97 
 
 Mosler, Ex parte (1894), 8 Ohio 
 
 C. C. 324; 1 Toledo Leg. 
 
 News, 368 .. . 280 
 Mugler V. Kansas (1887), 123 
 
 U. S. 623; 8 S. Ct. Rep. 
 
 273; 18 Am. & Eng. Corp. 
 
 Cas. 614 . . . 55, 72, 140 
 Mullen V. Western Union 
 
 Beef Co. (1897), 9 Colo. 
 
 App. 497; 49 Pac. Rep. 
 
 425 388 
 
 Mumford v. Wardwell (1867), 
 
 6 Wall. 438 . . . 135 
 Munn V. Illinois (1876), 94 U. 
 
 S. 113 . 189, 203, 394, 307, 883 
 Munn V. The People (1878), 69 
 
 111.80 . . . .294 
 Murphy Varnish Co. v. Con- 
 
 nell (1894), 32 N. Y. Supp. 
 
 493; 10 Misc. Rep. 554; 
 
 65 N. Y. St. Rep. 817 . 195 
 Murray, Ex parte (1890), 93 
 
 Ala. 78; 8 S. Rep. 868 375, 278 
 
TABLE OF OASES. 
 
 xliii 
 
 Murray v. Chicago & N. W. 
 
 Ry. Co. (1894), 63 Fed. 
 
 Eep. 24 . . , .163 
 Murray v. Clark (1873), 4 Daly, 
 
 468 141 
 
 Murray v. Wooden (1837), 47 
 
 "Wend. 531 .. . 354 
 Muscatine, City of, v. Keokuk 
 
 Northern Line Packet Co. 
 
 (1876), 45 Iowa, 185 . . 145 
 Myers v. Baltimore County 
 
 (1896), 83 Md. 385; 35AtI. 
 
 Kep. 144 . 63,333,328 
 
 Myers Excursion, etc. S'avi- 
 
 gation Co., In re (1893), 
 
 57 Fed. Rep. 340 . . 106 
 Myrick v. Michigan Central 
 
 R. R. Co. (1883), 107 U. S. 
 
 103; 1 S. Ct. Rep. 435 166, 167 
 
 Narragansett Indians, In re 
 
 (R I., 1898), 40 Atl. Rep. 
 
 347 344 
 
 Nashville, Chattanooga & St. 
 
 Louis Ry. Co. v. Alabama 
 
 (1888), 138 U.S. 96; 9S.Ct. 
 
 Rep. 28; 38Am.&Eng.R. 
 
 Cas. 1; 3 Int. Com. Rep. 
 
 338 185 
 
 Nashville, Chattanooga & St. 
 
 Louis Ry. Co. v. State 
 
 (1887), 83 Ala. 71; 3S.Rep. 
 
 703 185 
 
 Nathan v. State of Louisiana 
 
 (1850), 8 How. 73 . 46, 316 
 National Bank v. Common- 
 wealth (1869), 9 Wall. 353 381 
 National Distilling Co. v. 
 
 Cream City Importing Co. 
 
 (1893), 86 Wis. 353; 56 N. 
 
 W. Rep. 864; 39 Am. St. 
 
 Rep. 903 . . . . 326 
 National Dredging Co. v. State 
 
 (1893), 99 Ala. 463; 13 S. 
 
 Rep. 730 . . . . 234 
 
 Navigation Co. v. Dwyer 
 
 (1867), 29 Tex. 376 . . 103 
 
 Neaderhouser v. State (1867), 
 
 38 Ind. 357 99, 115, 133, 123 
 
 Neil V. Wilson (1887), 14 Greg. 
 
 410; 13 Pao. Rep. 810 141, 143 
 
 Neilson v. Garza (1876), 3 
 Woods, 287; 17 Fed. Cas. 
 1303 , . . .149 
 
 Nelms v. Edinburg-American 
 Land Mortg. Co. (1891), 93 
 Ala. 157; 9 S. Rep. 141; 33 
 Am. & Eng. Corp. Cas. 
 27 55 
 
 Nelson v. Cheboygan Naviga- 
 tion Co. (1880), 44 Mich. 7; 
 5 N. W. Rep. 998; 38 Am. 
 Rep. 233 . . . 114, 125 
 
 Nelson, C. N., Lumber Co. v. 
 Town of Loraine (1884), 
 33 Fed. Rep. 54 . .63 
 
 Nevada, The (1874), 7 Ben. 386; 
 
 18 Fed. Cas. 16 . .143 
 
 New Jersey Fruit Exchange 
 V. Central R. Co. of New 
 Jersey (1888), 3 Int. Com. 
 Rep. 84; 3 Int. Com. Comm. 
 Rep. 143 . . . .94 
 
 New Orleans, City of, v. 
 Eclipse Tow-boat Co. 
 (1881), 33 La. Ann. 647; 39 
 Am. Rep. 379 . . . 91 
 
 New Orleans, City of, v. Wil- 
 mot, Agent (1879), 31 La, 
 Ann. 65 . . 123, 145, 149 
 
 New Orleans Cotton Ex- 
 change V. Cincinnati, N. 
 O. & T. P. Ry. Co. (1888), 
 3 Int. Com. Rep. 289; 3 
 Int. Com. Comm. Rep. 375 88, 
 
 89 
 
 New Orleans & M. Packet Co. 
 V. James (1887), 33 Fed. 
 Rep. 31 ; 1 Int. Com. Rep. 
 599 . . . . 178, 195 
 
xliv 
 
 TABLE OF OASES. 
 
 Newport v. Taylor's Executors 
 
 (1855), 16 B. Mon. 699 159, 160, 
 300 
 
 Newport, City of, v. Berry 
 (1893), 14 Ky. L. Eep. 29; 
 19 S. W. Rep. 238 . 234, 336 
 
 New York v. Dibble (1858), 31 
 
 How. 366. . . .854 
 
 New York, Corporation of, v. 
 
 Staples (1826), 6 Cow. 169 196 
 
 New York, etc. v. N. J. Steam- 
 
 , boat Navigation Co. (1887), 
 106N.Y.28; 12 N. E. Eep. 
 435; 8 N. Y. St. Rep. 213 . 300 
 
 New York, Mayor, etc., v. 
 
 Candler (1828), 1 Wend. 493 196 
 
 New York, Mayor, etc., v. 
 Starin et al. (1887), 106 N. 
 Y. 1 ; 13 N. E. Rep. 631 30, 160, 
 300 
 
 New York, Mayor, Alderman, 
 etc. of the City of, v. Miln 
 (1837), 11 Pet. 103 31, 80, 193, 
 313, 214, 225 
 
 New York, New Haven & 
 Hartford Ry. Co. v. New 
 York (1897), 165 U. S. 628; 
 17 S. Ct. Rep. 418; 8 Am, 
 & Eng. E. Cas. (N. S.) 173 177, 
 184 
 
 New York, Lake Erie & West- 
 ern R. R. Co. V. Pennsyl- 
 vania (1895), 158 U.S. 431; 
 15 S. Ct. Rep. 896 . 266, 368 
 
 New York Board of Trade & 
 Transp. v. Pennsylvania 
 R. Co. (1891), 3 Int. Com. 
 Rep. 417 . . . .387 
 
 Nichols, In re (1891), 48 Fed. 
 
 Rep. 164 . . . 375, 278 
 
 Nishumura Ekiu v. United 
 States (1892), 142 U. S. 651 ; 
 12 S. Ct. Rep. 336 . . 304 
 
 Nixon V. Reid (1896), 8 S. D. 
 
 507; 67 N. W. Rep. 57 . 800 
 
 Norfolk & W. E. E Co. v. Com- 
 monwealth (1891), 88 Va. 
 95; 13 S. E. Rep. 340; 29 
 Am. St. Eep. 705; 13L.R. 
 A. 107; 3 Int. Com. Eep. 
 671 . . . . 178,179 
 
 Norfolk & W. R. R. Co. v. Com- 
 monwealth (1896), 98 Va. 
 749; 24 S. E. Rep. 837; 57 
 Am. St. Rep. 837; 34 L. E. 
 A. 105 . . 45, 61, 63, 179 
 
 Norfolk & W. E. E. Co. v. Com- 
 monwealth (1886), 114 Pa. 
 St. 256; 6 AtLEep. 45; 26 
 Am. & Eng. E. Cas. 48 334, 370 
 
 Norfolk & W. Ry. Co. v. Penn- 
 sylvania (1890), 136 U. S. 
 114; 10 S. Ct. Eep. 958; 45 
 Am. & Eng. E. Cas. 9; 3 
 Int. Com. Eep. 178 94, 334, 370, 
 297 
 
 Norris v. City of Boston (1842), 
 
 4 Mete. 282 ,. . 24 
 
 Northern Pacific R. R. Co. v. 
 Barnes (1892), 3 N. D. 310; 
 51 N. W. Rep. 386; 53 Am. 
 & Eng. E. Cas. 616 . . 366 
 
 Northern Pacific E. E. Co. v. 
 Barnesville & Moorhead 
 R. R. Co. (1880), 3 Mc- 
 Crary, 334; 4 Fed. Eep. 173 112, 
 185 
 
 Northern Pacific E. E. Co. v. 
 Brewer (1893), 2 N. D. 396; 
 51 N. W. Eep. 787 . . 266 
 
 Northern Pacific E. E. Ca 
 V. MoGinnis (1894), 4 N. 
 D. 494; 61 N. W. Eep. 
 1033 . . . .266 
 
 Northern Pacific E. E. Co. v. 
 Raymond (1888), 5 Dak. 
 356; 40 N. W. Rep. 538 . 266 
 
 Northern Pacific E. E. Co. v. 
 Strong (1892), 3 N. D. 395- 
 51 N. W. Eep. 787 . . 266 
 
TABLE OF OASES. 
 
 xlv 
 
 Northern Pacific E. E. Co. v. 
 
 Tressler (1893), 3 N. D. 397; 
 
 51 N. W. Rep. 787 . . 266 
 North Packing & Provision 
 
 Co. V. "Western Union Tel. 
 
 Co. (1897), 70 111. App. 275 167 
 North Pennsylvania R. R. Co. 
 
 V. Commercial Bank of 
 
 Chicago (1887), 123 U. S. 
 
 737; 8 S. Ct. Rep. 266 . 166 
 North River Steamboat Co. v. 
 
 Hoffman (1831), 5 Johns. 
 
 Ch. 300 . . , . 110 
 North River Steamboat Co. v. 
 
 Livingston (1835), 3 Cow. 
 
 713 . . . . 61,110 
 Northvrestern Packet Co. v. 
 
 Clarksville (1876), 4 Dill. 
 
 18; 18 Fed. Cas. 408 . 144 
 Northwestern Packet Co. v, 
 
 Hannibal (1876), 4 Dill. 18; 
 
 18 Fed. Cas. 409 . . 144 
 Northwestern Packet Co. v. 
 
 Louisiana (1876), 4 DilL 
 
 17; 18 Fed. Cas. 409 . 144 
 Northwestern Packet Co. v. 
 
 St.Louis(1876), 4DilL10; 
 
 18 Fed. Cas. 409 . . 144 
 Norwich Transportation Co. v. 
 
 Wright (1871), 13 Wall. 104 106 
 
 Obstruction to Navigation 
 (1875), 15 Op. Atty. Gen, 
 515 112 
 
 Oconto, The Tug (1873), 5 Biss. 
 
 460; 18 Fed. Cas. 571 . 108 
 
 Ogden V. Gibbons (1819), 4 
 
 Johns. Ch. 150, 174 . . 110 
 
 Ogdensburgh, City of, v. Lyon 
 
 (1872), 7 Lans. 315 . . 143 
 
 Ogilvie V. Crawford County 
 (1881), 3 McCrary, 148; 7 
 Fed. Rep. 745 . 62,233,249 
 
 Ohio & Miss. Ry. Co. v. Tabor 
 (1896), 98 Ky. 503; 33 S. 
 D 
 
 W. Rep. 168; 36 S. W. 
 
 Rep. 18; 34 L. R. A. 685 167, 
 169 
 O'Meara v. Commissioners, 
 
 etc. of Alleghany, etc. 
 
 (1874), 3 N. Y. Supreme Ct. 
 
 (T. &C.)335 . . .854 
 O'Neil V. Vermont (1893), 144 
 
 U. S, 333; 14 a Ct. Rep. 
 
 693 68 
 
 Oregon City Transp. Co. v. 
 
 Columbia St Bridge Co. 
 
 (1893), 58 Fed, Rep. 549 , 118, 
 129, 311 
 Organ v. State (1893), 56 Ark. 
 
 267; 19 S. W. Rep. 840 , 151 
 Ormerod v. New York, W, S, 
 
 & B. R Co. (1883), 13 Fed. 
 
 Rep. 370; 21 Blatch. 106 118, 
 137 
 Orr V. Quimby (1874), 54 N. H, 
 
 590 314 
 
 Osborn v. Bank of the United 
 
 States (1834), 9 Wheat. 738 815 
 Osborne v. Florida (1897), 164 
 
 U. S. 650; 17 S. Ct. Rep. 
 
 214 , . , 287,273,274 
 Osborne v. Mayor and Alder- 
 men, etc. of Mobile (1870), 
 
 44 Ala. 493 . . , 268 
 Osborne v. Mobile (1873), 16 
 
 Wall 479 , . .263 
 Osborne v. Nicholson (1871), 
 
 1 DilL 219; 18 Fed, Cas, 
 
 846 73 
 
 Osborne v. State (1894), 83 Fla. 
 
 162; 14 S. Rep. 588; 39 
 
 Am, St, Rep, 99; 25 L. R. 
 
 A, 120; 60 Am, & Eng, R 
 
 Cas. 270 . . . .274 
 Otis Co. V, Missouri Pacific 
 
 Ry, Co. (1892), 112 Mo. 633; 
 
 30 S. W. Rep. 676 . . 167 
 Ouachita Packet Co. v. Aikem 
 
 (1887), 131 U. a 444; 7 S, 
 
xlvi' 
 
 TABLE OF OASES. 
 
 Ct. Rep. 907; 18 Am. & 
 
 Eng. Corp. Cas. 504; 1 Int. 
 
 Com. Rep. 379 28, 144, 145, 149 
 Overton v. Vicksburg (1893), 
 
 70 Miss. 558; 13 So. Rep. 
 
 226 . . . . 275, 278 
 Oyster Police Steamers of 
 
 Maryland, The (1887), 31 
 
 Fed. Rep. 768 . . 101, 104 
 
 Pacific Coast Steamship Co. 
 V. Board of R. R. Commis- 
 sioners (1883), 18 Fed. Rep. 
 10; 9 Sawy. 253 86, 89, 93, 284 
 
 Pacific Express Co. v. Seibert 
 (1890), 44 Fed. Rep. 310; 45 
 Am. & Eng. R. Cas. 8 . 260 
 
 Pacific Express Co. v. Seibert 
 (1892), 142 U. S. 339; 12 S. 
 Ct. Rep. 250; 48 Am. & 
 Eng. R, Cas. 610; 3 Int. 
 Com. Rep. 810 207,240,248,260, 
 273 
 
 Pacific Gas Imp. Co. v. EUert 
 
 (1894), 64 Fed. Rep. 421 . 125 
 
 Pacific R. R. Co. v. Cass 
 
 County (1878), 53 Mo. 17 . 250 
 
 Pacific Railroad Removal 
 Cases (1885), 115 U.S. 1; 5 
 S. Ct. Rep. 1113; 20 Am. 
 & Eng. R. Cas. 324 . . 814 
 
 Packet Co. v. Catlettsburg 
 
 (1881), 105 U. S. 559 28, 113, 144, 
 145 
 
 Packet Co. v. Keokuk (1877), 
 
 95 U. S. 80 . 114, lU, 145 
 
 Packet Co. v. St. Louis (1879), 
 
 lOOU. S. 423 . . 144,145 
 
 Padelford, Fay & Co. v. The 
 Mayor, etc. of Savannah 
 (1854), 14 Ga. 438 29, 264, 347 
 
 Paine Lumber Co. v. United 
 States (1893), 55 Fed. Rep. 
 854 . . , . 135, 136 
 
 Palmer v. Commissioners 
 (1843), 3 McLean, 226; 18 
 Fed. Cas. 1026 114, 116, 118, 125 
 
 Parker Mills v. Jacot (1861), 8 
 
 Bosw. 161 .. . 102 
 
 Parsons v. Q ueen Ins. Co. (1879), 
 
 4 Upp. Can. App. 103 . 47 
 
 Passaic Bridges, The (1857), 3 
 Wall. 782 (App.); 17 Fed. 
 Cas. 412; 16 Lawy. Co-op. 
 U. S. Rep. 799 (App. 1) 118, 119, 
 120 
 
 Patapsco Guano Co. v. Board 
 of Agriculture (1898), 171 
 U. S. 345; 18 S. Ct. Rep. 
 862 . . 152, 154, 155, 157 
 
 Patapsco Guano Co. v. Board 
 of Agriculture of North 
 Carolina (1893), 53 Fed. 
 Rep. 690 149, 154, 155, 157, 203 
 
 Passenger Cases (1848), 7 How. 
 
 283 . 13, 23, 24, 25, 43, 64, 140, 
 193, 198, 200, 214, 315, 225, 307 
 
 Patee v. Adams (1887), 37 Kan. 
 
 133; 14 Pac. Rep. 505 . 173 
 
 Patterson v. Kentucky (1878), 
 
 97U. S. 501 ... 57 
 
 Paul V. Virginia (1868), 8 Wall. 
 
 168 . . . 46, 193, 396 
 
 Pearson v. International Dis- 
 tillery (1887), 73 Iowa, 348; 
 34 N. W. Rep. 1 . .55 
 
 Peete v. Morgan (1873), 19 
 
 Wall. 581 . . 145, 225 
 
 Peik V. Chicago & North- 
 western Ry. Co. (1876), 94 
 U.S. 164. . . 284, 28& 
 
 Peirce v. Van Dusen (1897), 47 
 U. S. i.pp.339;24C. C.A. 
 280; 78 Fed. Rep. 693; 7 
 Am. & Eng. R. Cas. (N. 
 S.)l .... 170 
 
 Pembina Consolidated Min- 
 ing & Milling Co. v. Penn- 
 
TAJ3LE or OASES. 
 
 xlvii 
 
 sylvania (1S88), 125 U. S. 
 181; 8 S. Ct. Rep. 737; 33 
 Am. & Eng. Corp. Cas. 543; 
 3 Int. Com. Rep. 24 . 41 
 
 Pennsylvania Ry. Co. v. Balti- 
 more & N. Y. Ry. Co. 
 (1888), 37 Fed. Rep. 139 . Ill 
 
 Pennsylvania Ry. Ca v. Com- 
 monwealth (Pa., 1886), 7 
 Atl. Rep. 868 . . . 803 
 
 Pennsylvania Ry. Co. v. Com- 
 monwealth (1860), 3 Grant 
 (Pa.), 128 . 321, 399, 301 
 
 Pennsylvania, State of, v. 
 Wheeling & Belmont 
 Bridge Co. (1855), 18 How. 
 431 . 109, 110, 111, 119, 130 
 
 Pennsylvania, State of, v. 
 Wheeling & Belmont 
 Bridge Co. (1851), 13 How. 
 518 . . . 31, 114, 130 
 
 Pennsylvania Telephone Co., 
 Matter of (1891), 48 N. J. 
 Eq. 91; 30 Atl. Rep. 846; 
 
 35 Am. & Eng. Corp. Cas. 
 
 36 ... . 46,366 
 Pensaoola Telegraph Co. v. 
 
 Western Union Tel. Co. 
 
 (1877), 96 U. S. 1 46, 193, 332, 
 300, 806, 316 
 Pensacola Telegraph Co., The, 
 
 V. The Western Union 
 
 Tel. Co. (1875), 3 Woods, 
 
 643; 19 Fed. Cas. 199 . 46 
 People V. Arensberg (1887), 
 
 105 N. Y. 123; 11 N. E. 
 
 Rep. 377; 59 Am. Rep. 483 50,53 
 People V. Babcook (1834), 11 
 
 Wend. 586 . . 158, 160 
 People V. Brooks (1847), 4 
 
 Denio, 469 . . .218 
 People V. City of St. Louis 
 
 (1848), 5 Gilm. 351 ; 48 Am. 
 
 Dec. 339 . . 113, 115, 120 
 
 People V. Coleman et al. ; Peo- 
 ple V. Hussey et al. (1854), 
 
 4 Cal. 46; 60 Am. Dec. 681 364, 
 
 283 
 People V. Commissioners 
 
 (1881), 104 U. S. 466 . . 399 
 People V. Compagnie Generate 
 
 Transatlantique (1882), 
 
 107 U. S. 59; 2 S. Ct. 
 
 Rep. 87 . 65,155,193,218,231, 
 234 
 People V. Dibble (1857), 16 N. 
 
 Y. 303 . . . . 354 
 People V. Downer (1857), 7 Cal. 
 
 169 . . 193, 318, 331, 234, 335 
 People V. Edye (1883), 11 Daly, 
 
 133 . . . 155, 231, 325 
 People V. Hawkins (1897), 20 
 
 App. Div. 494; 47 N. Y. 
 
 Supp. 56 . . . .194 
 People V. Hawkins (1895), 85 
 
 Hun, 43; 33 N. Y. Supp. 
 
 524; 65N.Y. StRep. 679; 
 
 5 Int. Com. Rep. 328 . 194 
 People V. Hawkins (1894), 31 
 
 N. Y. Supp. 115; 10 Misc. 
 
 Rep. 65 . . . .194 
 People V. Huntington (1846), 
 
 4 N. Y. Leg. Obs. 187 . 68 
 People V. Jenkins (1841), 1 
 
 Hill, 469 . . . .103 
 People V. Moring (1867), 3 
 
 Abb. Dec. 539 . . . 236 
 People V. Naglee (1850), 1 Cal. 
 
 333; 53 Am. Dec. 313 . 198 
 People V. National Fire Ins. 
 
 Co. of Hartford (1883), 37 
 
 Hun, 188 ... 47 
 
 People V. New York, N. H. & 
 
 H R. R. Co. (1890), 55 Hun, 
 
 409; 8 N. Y. Supp. 673; 
 
 29 N. Y. St. Rep. 173 . 184 
 People V. Niles (1868), 85 CaL 
 
 283 . . . . 233, 250 
 
xlviii 
 
 TABLE OS' OASES. 
 
 People V. O'Neil (Mich., 1896)^ 
 68 N. W. Rep. 337; 33 L. 
 E. A, 696 . . . 150, 153 
 
 People V. Pacific Mail Steam- 
 ship Co. (1883), 8 Sawy. 
 640; 16 Fed. Rep. 344 155, 194, 
 335 
 
 People V. Pease (1898), 30 Chi- 
 
 cago Leg. News, 377 . 63 
 
 People, The, v. Quant (1855), 
 3 Parker's Cr. Rep. (N. Y.) 
 410 . . . . 84,85 
 
 People V. Raymond (1868), 34 
 
 Cal. 493 . , 44, 49, 184, 319 
 
 People V. Reed (1866), 44 Barb. 
 
 335 151 
 
 People V. Renssellaer & Sara- 
 toga R. R. Co. (1836), 15 
 Wend. 114; 30 Am. Deo. 
 33 . . . 109,116,118 
 
 People V. Roberts (1897), 47 
 
 N. Y. Supp. 949 . . 375 
 
 People V. Roe (1841), 1 Hill, 470 103 
 
 People V. Sawyer (1895), 106 
 Mich. 438; 64 N. W. Rep. 
 333 380 
 
 People V. Sparry (1867), 50 
 
 Barb. 170 ... 141 
 
 People V. Thurber (1853), 13 
 
 I1L554 .... 47 
 
 People V. Warden of City 
 Prison (1898), 50 N. Y. 
 Supp. 56; 36 App. Div. 338 183 
 
 People V. West (1887), 106 N. 
 Y. 393; 13 N. E. Rep. 610; 
 8 N. Y. St. Rep. 713; 60 
 Am. Rep. 453 . . . 58 
 
 People V. Williams (1884), 64 
 
 CaL 498; 3 Pac. Rep. 398 144 
 
 People V. Wilmerding (1891), 
 63 Hun, 391 ; 17 N. Y. Supp. 
 103; 43 N. Y. St Rep. 139 364 
 
 People ex rel. Atty. Gen. v. 
 Revell (1897), 39 Chicago 
 Leg. News, 345 . . 135 
 
 People ex rel. Board of State 
 Harbor Com'rs v. Potrero 
 & Bay View R. R. Co. 
 (1885), 67 Cal. 166; 7 Pao. 
 Rep. 445 . . . .135 
 
 People ex rel. Board of State 
 Harbor Com'rs v. Roberts 
 (Sup. Ct. CaL, 1891) 35 
 Pac. Rep. 496 . . . 150 
 
 People ex reL Burnham v. 
 Jones (1888), 49 Hun, 365; 
 3N.Y.Supp. 145;17N.Y. 
 St. Rep. 586 (S. C, 110 
 N. Y. 509; 18 N. E. Rep. 
 433; 18 N. Y. St. Rep. 540, 
 and 113 N.Y. 597; 30N.E. 
 Rep. 577; 31 N. Y. St. Rep. 
 820) . . . .135 
 
 People ex rel. Cutler v. Dib- 
 ble (1854), 18 Barb. 413 . 354 
 
 People ex rel. Dunkirk, eta 
 R. Co. V. Campbell (1893), 
 74 Hun, 310; 36 N. Y. 
 Supp. 833; 56 N. Y. St. 
 Rep. 358 . . . . 368 
 
 People ex rel. Kimball v. B. & 
 A. R. R. Co. (1877), 70 
 N. Y. 569 ... 179 
 
 People ex reL Kirk (1896), 163 
 IlL 138; 46 N. E. Rep. 
 830 135 
 
 People ex reL Luckemeyer v. 
 Coleman (1898), 133 N. Y. 
 635; 30 N. E. Rep. 1150; 44 
 N. Y. St. Rep. 933 . . 339 
 
 People ex reL Luckemeyer v. 
 Coleman (1891), 61 Hun, 
 636; 16 N. Y. Supp. 330; 
 41 N. Y. St. Rep. 160 . 339 
 
 People ex rel. Murphy v. 
 Kelly (1879), 76 N. Y. 475; 
 6 Abb. N. C. 383 . Ill, 311 
 
 People ex reL Parke, Davis & 
 Co. V. Roberts (1895), 91 
 Hun, 158; 36 N. Y. Supp. 
 
TABLE OF OASES. 
 
 xlix 
 
 368; 71N.Y. St. Rep.138; 
 
 5 Int. Com. Rep. 463 240, 274 
 People ex rel. Penn. R. R. Co. 
 
 V. Wemple (1893), 188 N. Y. 
 1; 33 N. E. Rep. 720; 51 
 N. Y. St. Rep. 703; 54 Am. 
 
 6 Eng. R. Cas. 171 . . 271 
 People ex rel. Penn. R R. Co. 
 
 V. Wemple (1892), 65 Hun, 
 252; 20 N. Y. Supp. 387; 
 29'Abb. N. C. 85; 47N.Y. 
 St. Rep. 695 . . .271 
 
 People ex rel. Piatt v. Wem- 
 ple (1889), 52 Hun, 484; 5 
 N.Y. Supp. 581; 24 N. Y. 
 St. Rep. 668 . . . 238 
 
 People ex rel. Piatt v. Wem- 
 ple (1889), 117 N. Y. 136; 
 23 N. E. Rep. 1046; 27 
 N.Y.St. Rep. 341; 29 Am. 
 & Eng. Corp. Cas. 610; 6 
 L. R A. 303; 2 Int. Com. 
 Rep. 735 . . . . 230 
 
 People ex rel. Postal Tel. Co. 
 V. Campbell (1893), 70 
 Hun, 507; 24 N. Y. Supp. 
 208; 53 N. Y. St. Rep. 790 240 
 
 People ex rel. P. M. S. S. Ca 
 V. Com'rs of Taxes, etc. of 
 New York (1874), 58 N. Y. 
 242 233 
 
 People ex rel. Sisco v. Com- 
 missioners of Pilots (1881), 
 23 Hun, 603 . . . 141 
 
 People ex rel. H. B. Smith Co. 
 V. Roberts (1898), 50 N. Y. 
 Supp. 355 , . ,870 
 
 People ex rel. Southern Cot- 
 ton Oil Co. V. Wemple 
 (1891),61Hun,85;15N.Y. 
 Supp. 446; 39 N. Y. St. 
 Rep. 738 . . . . 240 
 
 People ex reL Southern Cot- 
 ton Oil Co. V. Wemple 
 (1892), 181 N. Y. 64; 29 
 
 N. E. Rep. 1002; 42 N. Y„ 
 St. Rep. 632; 37 Am. St. 
 Rep. 542; 38 Am. & Eng. 
 Corp. Cas. 588 . 240, 274, 275^ 
 
 People ex rel. United States & 
 Brazil Steamship Co. v. 
 The Commissioners of 
 Taxes, eta (1866), 48 Barb. 
 157 . . . . 236,238 
 
 People ex rel. Western Union 
 Tel. Co. V. Tierney (1890), 
 57 Hun, 857; 10 N.Y. Supp. 
 940; 32 N. Y. St. Rep. 605 329 
 
 People ex rel. Woodyatt v. 
 Thompson (1895), 155 III 
 451; 40 N. E. Rep. 307 . 122 
 
 Peoria, City of, v. Gugenheim 
 
 (1895), 61 III. App. 374 . 275 
 
 Perkins v. Emerson (1871), 59 
 
 Me. 319 . . . .101 
 
 Permoli v. First Municipality 
 
 (1845), 3 How. 589 . . 123 
 
 Perrin v. Sikes (1803), Day's 
 
 Cases in Error (Ct.), 19 2, 13, 
 212 
 
 Perrys v. Torrence (1838), 8 
 Ohio St. 531; 32 Am. Dec. 
 725 336 
 
 Peters v. Railroad Co. (N. 0. M. 
 
 & C), (1876), 56 Ala. 538 1 18, 123 
 
 Peterson v. Walsh (1861), 1 
 
 Daly, 183 . . .143 
 
 Phelps V. Racey (1875), 60 
 
 N. Y. 10; 19 Am. Rep. 140 150 
 
 Philadelphia v. Telegraph Co. 
 (1895), 167 Pa. St. 406; 31 
 AtL Rep. 638 . . . 180 
 
 Philadelphia, City of, v. 
 Postal Telegraph Cable 
 Co. (1893), 67 Hun, 21; 21 
 N. Y. Supp. 556; 50 N. Y. 
 St. Rep. 301 . . 180, 237 
 
 Philadelphia, City of, v. West- 
 ern Union Tel. Co, (1897), 
 83 Fed. Rep. 797 . . 180 
 
1 
 
 TABLE OF CASES. 
 
 Philadelphia, City of, v. West- 
 ern Union Tel. Co. (1889), 
 40 Fed. Rep. 615; 2 Int. 
 Com. Rep. 728 . 148, 180, 188 
 
 Philadelphia Fire Association 
 V. New York (1886), 119 
 U.S. 110; 7 act. Rep. 108; 
 15 Am. & Eng. Corp. Gas. 
 431 . . . 47, 199, 240 
 
 Philadelphia & Southern Mail 
 Steamship Co. v. Com- 
 monwealth (1883), 104 Pa. 
 St. 109 . . . . 264 
 
 Philadelphia & Southern 
 Steamship Co. y. Pennsyl- 
 vania (1887), 133 U. S. 336; 
 7 S. Ct. Rep. 1118; 18 Am. 
 & Eng. Corp. Cas. 1 ; 1 Int. 
 Com. Rep. 308 38, 44, 66, 191, 
 208, 364, 367, 369, 373, 397 
 
 Philadelphia, Wilmington & 
 Baltimore R. Co. v. The 
 Appeal Tax Court of 
 Baltimore City (1879), 50 
 Md. 397 . . . .250 
 
 Phillips V. Town of Blooming- 
 ton (1848), 1 Greene (Iowa), 
 498 . . . . 159,300 
 
 Phipp.s, Thomas, et al. v. State 
 of Maryland (1864), 33 Md, 
 380; 85 Am. Dec. 654 . 151 
 
 Phoebe v. Jay (1828), Breese 
 (111.), 207 (Beecher's ed. 
 368) . . . .131 
 
 Pickard ir. Pullman Southern 
 Car Co. (1886), 117 U. S. 
 34; 6 8. Ct. Rep. 635; 34 
 Am. & Eng. R. Cas. 511 . 308, 
 207, 339, 369, 272, 275 
 
 Pidcock V. Harrington (1894), 
 64 Fed. Rep. 821; 5 Int. 
 Com. Rep. 161 . . . 335 
 
 Pierce v. New Hampshire 
 
 (1846), 5 How. 504 . . 153 
 
 Pierson v. The State (1883), 39 
 
 Ark. 219 . . . . 137 
 Pilgrim v. Beck (1895), 69 Fed. 
 
 Rep. 895 . . . . 353 
 Pinto, Matter of (1888), 50 
 
 Hun, 413; 2 N. Y. Supp. 
 
 275; 18 N. Y. St. Rep. 
 
 45 294 
 
 Pittsburgh, Cincinnati, Chi- 
 cago & St. Louis R. Co. V. 
 
 Backus (1894), 154 U. S. 
 
 431; 14 8. Ct. Rep. 1114; 
 
 60 Am. & Eng. R. Cas. 313 211, 
 243, 254, 256, 
 257, 268 
 Pittsburg & Southern Coal 
 
 Co. V. Bates (1888), 40 La. 
 
 Ann. 226; 3 S. Rep. 642; 
 
 8 Am. St. Rep. 519; 22 Am. 
 
 & Eng. Corp. Cas. 394 . 224> 
 226 
 Pittsburg & Southern Coal 
 
 Co. V. Bates (1895), 156 U. 
 
 8.577; 15S.Ct.Rep.415;5 
 
 Int. Com. Rep. 30 63, 224, 226, 
 228 
 Pittsburg & Southern Coal 
 
 Co. V. Louisiana (1895), 
 
 156 U. S. 590; 15 a Ct. Rep. 
 
 459 , . . . 153,154 
 Plessy V. Ferguson (1896), 163 
 
 U. S. 537; 16 S. Ct. Rep. 
 
 1138; 4 Am. & Eng. R. Cas. 
 
 (N. S.)377 . . .174 
 Plumley v. Massachusetts 
 
 (1894), 155 U.S. 461; 15 S. 
 
 Ct. Rep. 154; 5 Int. Com. 
 
 Rep. 590 . . . . 194 
 Pollard's Lessee v. Hagan 
 
 (1845), 3 How. 212 . 121, 123 
 Pool, Ex parte (1821), 3 Va. 
 
 Cas. 276 . . . .101 
 Poree v. Cannon (1859), 14 La. 
 
 Ann. 506 -" 103 
 
TABLE OF OASES. 
 
 li 
 
 Port Clinton, Borough of, v. 
 Shafer (1896), 5 Pa. Dist. 
 Eep. 583; 18 Pa. Co. Ct. 
 Eep. 67 . . . . S79 
 
 Port Wardens of N. Y. v. Cart- 
 wright (1850), 4 Sandf. 836 193 
 
 Port Wardens v. Ship Charles 
 Morgan (1859), 14 La. Ann. 
 603 . . . . 141,143 
 
 Port Wardens v. Ship Martha 
 J. Ward (1859), 14 La. 
 Ann. 287 . . 28, 141, 143 
 
 Postal Telegraph Cable Co. v. 
 Adams (1895), 155 U. S. 
 688; 15 S. Ct. Eep. 268, 
 360; 48 Am. & Eng. Corp. 
 Cas. 430 ; 5 Int. Com. Eep. 1 199, 
 204, 230, 241, 248, 281 
 
 Postal Telegraph Cable Co. v. 
 City Council of Charles- 
 ton (1893), 56 Fed. Eep. 
 419 . . . . 237,249 
 
 Postal Telegraph Cable Co. v. 
 Charleston (1894), 153 U. S. 
 692; 14 S. Ct. Eep. 1094 237, 
 349, 373, 374 
 
 Postal Telegraph Cable Co. v. 
 The Mayor & City Coun- 
 cil of Baltimore (1891), 79 
 Md. 503; 39 Atl. Eep. 819; 
 34 L. E. A. 161 . . 180 
 
 Postal Telegraph Cable Co. 
 V. State Eevenue Agent 
 (1893), 71 Miss. 555; 14 S. 
 Eep. 36; 44 Am. & Eng. 
 Corp. Cas. 383; 42 Am. St. 
 Eep. 476; 4 Int. Com. Eep. 
 416 . . . . 248,369 
 
 Postal Telegraph Cable Co. 
 of Louisiana v. Morgan's 
 Louisiana & T. E. E. & S. 
 S. Co. (1897), 49 La. Ann. 
 58; 21 S. Eep. 183 . . 314 
 
 Pound V. Turck (1877), 95 U. S. 
 
 459 28,100,113,115,116,119,125 
 
 Powell V. Pennsylvania (1888), 
 137U. S.678;8S. CtEep. 
 993, 1257; 33 Am. & Eng. 
 E. Cas. 18 ... 50 
 
 Powell V. The State (1881), 69 
 
 Ala. 10 . , . 276, 277 
 
 Prescott & A. C. E. Co. v. 
 Atchison, T. & S. F. E. 
 Co. (1896), 73 Fed. Eep. 
 438 319 
 
 Preston v. Finley (1896), 72 
 
 Fed. Eep. 850 . . . 67 
 
 Prigg V. The Commonwealth 
 of Pennsylvania (1842), 16 
 Pet. 539 . . . . 837 
 
 Propeller Genesee Chief v. 
 Fitzhugh (1851), 12 How. 
 443 . . . . 96, 97 
 
 Proprietors of the Charles 
 Eiver Bridge v. The War- 
 ren Bridge (1837), 11 Pet. 
 430 158 
 
 Prosser v. Northern Pacific 
 E E. Co. (1894), 152 U. S. 
 59; 14 S. Ct. Eep. 538 . 144 
 
 Providence & New York 
 Steamship Co. v. Hill 
 Manufacturing Co. (1883), 
 109 U.S. 578; 3 S. CtEep. 
 379,617 . . . 97,106 
 
 Providence Coal Co. v. Provi- 
 dence & Worcester E E. 
 Co. (1886), 15 E. L 303; 4 
 Atl. Eep. 394; 36 Am. & 
 Eng. E. Cas. 42 . . 293 
 
 Pullman's Palace Car Co. v. 
 Board of Assessors (1893), 
 55 Fed. Eep. 306 . . 253 
 
 Pullman Palace Car Co. v. 
 Cain (Tex. Civ. App., 1897), 
 40 S. W. Eep. 320 . . 174 
 
 Pullman's Palace Car Co. v. 
 Central Transportation 
 Co. (1898), 171 U.S. 138; 18 
 S. Ct. Eep. 808 . 237, 247 
 
lii 
 
 TABLE OF OASES. 
 
 Pullman's Palace Car Co, v. 
 
 Commonwealth (No. 1), 
 
 (1884), 107 Pa. St. 148 240. 253, 
 264 
 Pullman's Palace Car Co. v. 
 
 Hayward (1891), 141 U. S. 
 
 36; 11 S. Ct. Rep. 883 . 253 
 Pullman's Palace Car Co. v. 
 
 Pennsylvania (1891), 141 
 
 U.S. 18: 11 act. Rep. 876; 
 
 46 Am. & Eng. R. Cas. 386; 
 
 3 Int. Com. Rep. 595 303, 207, 
 240, 253, 359 
 Pullman's Palace Car Co. v. 
 
 Twombly (1887), 29 Fed. 
 
 Rep. 658 . . . 350, 351 
 Pullman Southern Car Co, v. 
 
 Gaines (1877), 3 Tenn. Ch. 
 
 587 268 
 
 Pullman Southern Car Co. 
 
 V. Montgomery County 
 
 (1884), 22 Fed. Rep. 276; 
 
 17 Am. & Eng. R. Cas. 
 
 398 250 
 
 Pullman Southern Car Co. v. 
 
 Nolan (1884), 23 Fed. Rep. 
 
 276; 17 Am. & Eng. R. 
 
 Cas. 298 . . . .249 
 Pumpelly v. Green Bay Co. 
 
 (1871), 13 Wall. 166 . . 315 
 
 Queen Ins. Co. v. Parsons 
 
 (1880), 4 Can. S. C. 315 . 47 
 
 Race Horse, In re (1895), 70 
 
 Fed. Rep. 598 . . . 845 
 
 Rae V. Grand Trunk Ry. Co. 
 (1883), 14 Fed. Rep. 401; 9 
 Am. & Eng. R. Cas. 470 166, 185 
 
 Raguet V. Wade (1829), 4 Ohio, 
 
 107 229 
 
 Eahrer, Petitioner, In re (1891), 
 140 U. S. 545; 11 S. Ct. 
 Rep, 865 57, 77, 81, 141, 148, 
 186, 309 
 
 Rahrer, In re (1890), 43 Fed, 
 
 Rep. 556; 10 L. R. A. 444 143 
 
 Railroad Commissioners v. 
 Railroad Co, (1884), 33 S, 
 C. 330; 36 Am. & Eng. R. 
 Cas. 39 . . . 44 284 
 
 Railroad Commissioners v. 
 Telegraph Co. (1893), 113 
 N. C. 213; 18 S. E. Rep. 
 389; 44 Am. & Eng. Corp. 
 Cas. 377; 32 L. R. A. 570 89 
 
 Railroad Co. (L. & N.) v. Bald- 
 win (1888), 85 Ala. 619; 5 
 S. Rep. 311 . . .185 
 
 Railroad Co. (Morgan's La. & 
 Tex.) V. Board of Health 
 (1884), 36 La. Ann. 666 . 146, 
 150, 155 
 
 Railroad Co. (C. & N. W.) v. 
 
 Fuller (1873), 17 Wall. 560 179, 
 395 
 
 Railroad Co. (Han, & St, Jo.) 
 V. Husen a877), 95 U. S. 
 465 . 28, 44, 56, 18, 139, 140, 
 146, 147, 154, 171, 193, 193, 203 
 
 Railroad Co. (N. Y, Cent.) v. 
 Lockwood (1873), 17 Wall. 
 357 168 
 
 Railroad Co. (Mich. Cent.) v. 
 Manufacturing Co. (Min- 
 eral Springs), (1873), 16 
 Wall. 818 ... 166 
 
 Railroad Co. (St. Joseph & G. 
 I.) V. Palmer (1893), 38 
 Neb, 463; 56 N, W. Rep. 
 957; 61 Am, & Eng. R. 
 Cas. 69; 32 L. R. A. 335; 
 4 Int. Com. Rep. 494 . 168 
 
 Railroad Co. (Union Pac.) v. 
 
 Peniston (1873), 18 Wall. 5 201, 
 303, 330, 333 
 
 Railroad Co. (R & Dan.) v. 
 Reidsville (1888), 101 N. O. 
 404; 8 S. E. Rep. 134; 3 
 Int. Com, Rep, 416 . . 374 
 
TABLE OF OASES. 
 
 liii 
 
 Eailroad Co. (Dub. & Sioux 
 aty) V. Richmond (1873), 
 19 "Wall. 584 . . , 189 
 
 Bailroad & Telephone Co. y. 
 Board of Equalizers of 
 Tennessee (1897), 85 Fed. 
 Eep. 303 . . . 245, 247 
 
 Railway Co. (Dav. & N. W.) 
 V. Renwick (1880), 103 
 U. S. 180 ... 137 
 
 Railway Co. (N. C. & St. L.) 
 V. State (1887), 83 Ala. 71; 
 8 S. Rep. 703 . . . 185 
 
 Raleigh & G. E. Co. v. Swan- 
 son (Ga., 1897), 28 S. E. 
 Rep. 601 . . . . 289 
 
 Range Co. v. Carver (1896), 118 
 
 N. C. 338 ; 24 S. E. Rep. 352 279 
 
 Rapier, Petitioner, In re (1893), 
 143 U. S, 110; 13 S. Ct. 
 Rep. 374 . . . .56 
 
 Rar. & Del. Bay R. Co. et al. v. 
 Del. & Rar. Canal & C. & 
 A. R. & T. Co. (1867), 18 N. 
 J. Eq. 546 . 213, 299, 300 
 
 Rash V. Farley (1891), 91 Ky. 
 344; 15 S. W. Eep. 862; 34 
 Am. St. Rep. 333 . . 280 
 
 Rash V. Halloway (1885), 83 
 
 Ky. 674 . . . .280 
 
 Ratterman v. "Western "Union 
 Telegraph Co. (1888), 137 
 U. S. 411; 8 S. Ct. Rep. 
 1137; 31 Am. & Eng. Corp, 
 Cas. 1; 3 Int. Com. Rep. 
 59 . 233, 349, 260, 270, 271, 275 
 
 Re (see name of party). 
 
 Reading E R Co. v. Pennsyl- 
 vania (1873), 15 "Wall. 384 189, 
 303, 361, 264, 297 
 
 Reagan v. Mercantile Trust 
 Co.(1894), 154U.S.413;14 
 S. Ct.Rep. 1060;58Am.& 
 Eng. R. Cas. 699; 4 Int, 
 Com. Eep. 575 . . . 286 
 
 Reagan v. Farmers' Loan & 
 
 Trust Co. (1894), 154 U. S. 
 
 363 ; 14 S. Ct. Rep. 1047 260, 285, 
 28& 
 Rebman, In re (1890), 41 Fed. 
 
 Rep. 867; 3 Int. Com. Rep. 
 
 126 . . . . 189,194 
 Reed & Barton v. "Walker 
 
 (1893), 2 Tex. Civ. App. 93; 
 
 SI S. "W. Rep. 687 . . 178 
 Reed v. Western Union Tel. 
 
 Co. (1894), 56 Mo. App. 168 181 
 Reed v. "Western ITnion Tel. 
 
 Co. (1896), 135 Mo. 661; 37 
 
 S. "W. Rep. 904; 58 Am. 
 
 St. Rep. 609 . . . 181 
 Reeves v. Texas & Pacific R. 
 
 Co. (1895), 11 Tex. Civ. 
 
 App. 514; 33 S. "W. Rep. 
 
 920; 5 Int. Com. Rep. 639 168 
 Regina v. Davenport (1858), 16 
 
 Upp. Can. Q. B. 411 . . 158 
 Reinhart v. McDonald (1896), 
 
 76 Fed. Rep. 403 . . 229 
 Removal of Obstruction to 
 
 Navigation (1877), 15 Op. 
 
 Atty. Gen. 384 . . 110 
 Renfrew v. United States 
 
 (1895),3 0kla. 161; 41 Pao. 
 
 Rep. 88 . . 350, 353, 353 
 Renwick v. Morris (1842), 3 
 
 Hill, 621 . . . .113 
 Rhea v. Newport N. & M. V, 
 
 R. Co. (1892), 50 Fed. Eep. 
 
 16 118 
 
 Rhodes v. Iowa (1898), 170 
 
 U. S. 413; 18 S. Ct. Rep. 
 
 664 79 
 
 Richards v. "Woodward (1873), 
 
 113 Mass. 385 . . . 67 
 Eichardson v. State (Miss., 
 
 1893), 11 S. Eep. 934 275, 278 
 Eichmond & A. E Co. v. Pat- 
 terson Tobacco Co. (1896), 
 
 93 Va. 670 ; 34 S. E. Eep. 261 168 
 
liv 
 
 TABLE OF CASES. 
 
 Eichmond & Alleghany R. 
 
 Co. V. E. A. Patterson To- 
 bacco Co. (1898), 169 U. S. 
 
 311; IBS. Ct. Eep. 335 . 168 
 Eichmond v. Dubaique & City 
 
 E.R. Co. (1874), 83 Iowa, 433 189 
 Bieman et al. v. Shepard, 
 
 Treas. etc. et al. (1866), 37 
 
 Ind. 288 . , . . 235 
 Bobbins v. Shelby County 
 
 Taxing District (1887), 120 
 
 U.S.489;7S. Ct.Eep.593; 
 
 16 Am. & Eng. Corp. Cas. 
 
 1; 1 Int. Com. Eep. 45 38, 33, 
 61, 68, 189, 193, 201, 305, 
 369, 375, 278 
 Bobbins v. Taxing District 
 
 (1884), 13 Lea, 303 . . 378 
 Eobertson v. Baldwin (1897), 
 
 165U.S.275;17S.Ct.Eep. 
 
 326 101 
 
 Eobertson v. Commonwealth 
 
 (Ky., 1897), 40 S. W. Eep. 
 
 920 137 
 
 Bobinson, Ex parte (1877), 13 
 
 Nev. 263; 28 Am. Eep. 794 378 
 Bobinson v. Eice (1854), 3 
 
 Mich. 235 ... 101 
 
 Eoff V. Burney (1897), 168 U. S. 
 
 318; 18 S. Ct. Eep. 60 . 843 
 Eogers v. McCoy (1889), 6 Dak, 
 
 238; 44 N. W. Eep. 990 . 380 
 Eogers v. Western Union TeL 
 
 Co. (1889), 132 Ind. 395; 34 
 
 N. E. Eep.157; 17 Am. St. 
 
 Eep. 373; 35 Am. & Eng. 
 
 Corp. Cas. 53 , . 178,181 
 Bollins, Ex parte (1885), 80 Va. 
 
 314 276 
 
 EoUins V. Cherokees (1883), 87 
 
 N. C. 229 ... 311 
 
 Eoselle v. Farmers' Bank of 
 
 Norbourne (Eoselle v. Mo- 
 
 Auliffe),(1897),141Mo.36; 
 
 39 aw. Eep. 374 . . 56 
 
 Eosenblatt, Ex parte (1887), 
 
 19 Nev. 489; 14 Pac. Eep. 
 
 298 ; 3 Am. St. Eep. 901 375, 378 
 Both V. State (1894), 51 Ohio 
 
 St. 209; 87 N. E. Eep. 259; 
 
 46 Am. St. Eep. 566 . 150 
 
 Eothermel v. Meyerle (1890), 
 
 7 Pa. Co. Ct. Eep. 616 . 198 
 Eothermel v. Meyerle (1890), 
 
 136 Pa. St. 250; 20 Atl. 
 Eep. 583; 9 L. E. A. 366; 
 
 8 Int. Com. Eep. 815 61, 375 
 Eothermel v. Zeigler (1890), 7 
 
 Pa. Co. Ct. Eep. 505 275, 280 
 Bouse V. Youard (1895), 1 Kan. 
 
 App. 270; 41 Pac. Eep. 436; 
 
 5 Int. Com. Eep. 815 172, 173 
 Eowland v. New York, New 
 
 Haven & Hartford B E. 
 
 Co. (1891), 61 Conn. 103; 23 
 
 Atl. Eep. 755; 29 Am. St. 
 
 Eep. 175 . . . . 188 
 Eowland v. The South Cam- 
 bria (1886), 37 Fed. Eep. 
 
 525 143 
 
 Eozelle, In re (1893), 57 Fed. 
 
 Eep. 155; 43 Am. & Eng. 
 
 Corp. Cas. 596 . . 375, 278 
 Eudolph, In re (1880), 6 Sawy. 
 
 295; 2Fed. Eep. 65 . . 277 
 Buggies V. Illinois (1883), 108 
 
 U. S. 526; 2 S. Ct. Eep. 
 ,>K 833; 11 Am. & Eng. B 
 
 Ca& 49 . . . .385 
 Eumsey v. N. Y. & N. E. E. B 
 
 Co. (1893), 63 Hun, 200; 17 
 
 N. Y. Supp. 672; 45 N. Y. 
 
 St Eep. 33 . . . 137 
 Eutz V. City of St. Louis 
 
 (1882), 3 McCrary, 361; 10 
 
 Fed. Eep. 338 . . . 115 
 Eyan v. Knorr (1880), 19 Hun, 
 
 640 854 
 
 Byder v. Holt (1888), 138 U. S. 
 
 535; 9 S. Ct. Eep. 145 61, 817 
 
TABLE OF OASES. 
 
 Iv 
 
 St. Anthony's Falls Water 
 Power Co. v. St. Paul 
 Water Com'rs (1897), 168 
 U. S. 349; 18 S. Ct. Rep. 
 157 . . 99, 116, 123, 13S 
 
 St. Bernard v. Eailroad Co. 
 
 (1896), 4 Ohio Dec. 371 , 179 
 
 St Louis V. The Ferry Co. 
 
 (1870), 11 WalL 423 . 300, 333, 
 234, 238, 250 
 
 St. Louis V. Waterloo-Caron- 
 delet Turnpike & Ferry 
 Co. (1883), 14 Mo. App. 316 160 
 
 St. Louis V. Western Union 
 Tel Co. (1893), 148 U. S. • 
 93; 149 U.S. 465; 13 S. Ct. 
 Rep. 485, 990; 44 Am. & 
 Eng. Corp. Cas. 390 148, 149, 
 180, 237 
 
 St. Louis, City of, v. Boffinger 
 
 (1853), 19 Mo. 13 . . 147 
 
 St. Louis, City of, v. McCoy 
 
 (1858), 18 Mo. 338 . . 147 
 
 St. Louis, City of, v. Western 
 Union Tel. Co. (1889), 39 
 Fed. Rep. 59 . , . 180 
 
 St. Louis Bridge Co. v. City 
 of East St. Louis (1887), 
 131 111. 238; 12 N. E. Rep. 
 733 356 
 
 St. Louis S. W. R. Co. of Texas 
 V. Carden (Tex. Civ. App., 
 1896), 34 S. W. Rep. 145 181, 183 
 
 St. Louis & St. P. Packet Co. 
 V. Keokuk & H. Bridge 
 Co. (1887), 31 Fed. Rep. 755 111 
 
 St. Louis & San Francisco Ry. 
 Co. V. Mathews (1897), 165 
 U. S. 1; 17 S. Ct. Rep. 243 170 
 
 Sage V, Mayor, eta of New 
 York (1897), 154 N. Y. 61; 
 47N.E. Rep. 1096;38L. R 
 A. 606 . . . 135,136 
 
 Salzenstein et al. v. Mavis 
 
 (1879), 91 111. 391 58, 140, 171, 
 193, 234 
 
 San Benito County v. South- 
 ern Pacific R. R. Co. (1888), 
 77 Cal. 518; 19 Pac Rep. 
 837; 37 Am. & Eng. R. Cas. 
 374 233 
 
 San Bernardino, City of, v. 
 Southern Pacific Co, 
 (1895), 107 Cal. 534; 40 Pac. 
 Rep. 796; 39 L. R. A. 337 274, 
 275 
 
 Sanders, In re (1893), 53 Fed. 
 Rep. 802; 18 L. R. A. 549; 
 4 Int. Com. Rep. 305 69,189,203 
 
 Sands v. Manistee River Im- 
 provement Co. (1887), 123 
 U. S. 288; 8 S. Ct. Rep. 113 60, 
 lis, 125 
 
 Sanford v. Poe (1895), 37 U. S. 
 App. 378; 69 Fed. Rep. 546; 
 16 C. C. A. 305; 3 Am. & 
 Eng. Corp. Cas. (N. S.) 167 240, 
 259 
 
 San Francisco, City and 
 County of, v. Western 
 Union Telegraph Co. 
 (1892), 96 Cal. 140; 31 Pac. 
 Rep. 10, 14; 17 L. R. A, 
 301; 39 Am. & Eng. Corp. 
 Cas. 60 . . 46, 232, 249, 297 
 
 Sang Lung v. Jackson (1898), 
 
 85 Fed. Rep. 502 . . 351 
 
 Santa Clara County v. South- 
 ern Pacific R. R. Co. (1886), 
 118U.S.394;6S. Ct. Rep. 
 1132 . . . 41,333 
 
 Santo etal. v. The State (1855), 
 2 Iowa, 165; 63 Am. Dec. 
 487 72 
 
 Savannah, Mayor and Alder- 
 men of the City of, v. The 
 State ex reL Thomas 
 Green (1848), 4 Ga. 26 . 113 
 
 Savannah Ry. Co. v. Bundick 
 (1894), 94 Ga. 775; 21 S. E, 
 Rep. 995; 5 Int. Com. Rep. 
 289 . . . , 183,289 
 
Ivi 
 
 TABLE OF OASES. 
 
 Sawrie v. State of Tennessee 
 
 (1897), 82 Fed. Rep. 615 . 49, 
 69, 193 
 Scammon v. Kansas City, St. 
 
 Jo. & C. B. Ey. Ca (1890), 
 
 41Mo. App. 194 . . 60 
 Schandler Bottling Co. v. 
 
 Welch (1890), 42 Fed. Eep. 
 
 561 69 
 
 Schechter, In re (1894), 63 
 
 Fed. Rep. 695; 4 Int. Com. 
 
 Eep. 849 . . . . 194 
 Scheurer v. Columbia Street 
 
 Bridge Co. (1886), 37 Fed. 
 
 Eep. 173 . . . . 133 
 Schmidt v. The People (1892), 
 
 18 Colo. 78; 31 Pac. Rep. 
 
 498 . . . . 150, 194 
 SchoUenberger v. Pennsyl- 
 vania, 171 U. S. 1; 18 Sup. 
 
 Ct. Eep. 757 49, 50, 58, 83, 85, 
 193, 194 
 Schooner Wave v. Hyer (18 — ), 
 
 2 Paine, 131; 39 Fed. Cas. 
 
 464 141 
 
 Sohriber v. The Town of 
 
 Langlade (1886), 66 Wis. 
 
 616; 39 N. W. Eep. 547, 
 
 554 854 
 
 Scott, Ex parte (1895), 66 Fed. 
 
 Rep. 45 . . . .194 
 Scott V. City of Chicago (1866), 
 
 1 Biss. 510; 31 Fed. Cas. 
 
 814 115 
 
 Scott V. Donald (1897), 165 
 
 U. S. 107; 17 S. Ct. Rep. 
 
 263 . . . 81, 140, 154 
 Scott V. Wilson (1835), 3 N. a 
 
 331 143 
 
 "Scotland," The (1881), 105 
 
 U. S. 34 . . . . 106 
 Scranton v, Wheeler (Mich., 
 
 1897), 71 N. W. Eep. 1091 136 
 Scranton v. Wheeler (1893), 16 
 
 U. S. App. 153; 6 C. C. A. 
 
 585; 57 Fed. Eep. 803 . 136 
 
 Searight v. Stokes et al. (1845), 
 
 3 How. 151 .. . 205 
 
 Sears et aL v. The Board of 
 Commissioners of Warren 
 Co. (1871), 36 Ind. 367; 10 
 Am. Eep. 62 . . 379, 282 
 
 Seawall v. Kansas City, Ft. 
 Scott & Memphis R R 
 Co. (1893), 119 Mo. 333; 24 
 8. W. Eep. 1003 . . 89 
 
 Secretary of the Treasury of 
 United States, In re (1891), 
 45 Fed. Eep. 396 . . 314 
 
 Selvege v. St. Louis & San 
 Francisco Ey. Co. (1896), 
 135 Mo. 163; 36S.W.Eep. 
 653; 4 Am. & Eng. E Cas. 
 (N. S.) 635 .. , 173 
 
 Seneca Nation of Indians v. 
 Christie (1891), 126 N. Y. 
 133; 37 N. E. Eep. 275; 37 
 N. Y. St. Eep. 64 . . 354 
 
 Seymour v. The State (1874), 
 
 51 Ala. 53 . . . 383 
 
 Shaw V. McCandless (1858), 36 
 
 Miss. 296 . . . .102 
 
 Shaw Piano Co. v. Ford (Tex. 
 Civ. App., 1897), 41 S. W. 
 Eep. 198 . . . .196 
 
 Shelton v. Piatt (1891), 139 U. 
 
 S. 591; 11 S. Ct. Eep. 646 335 
 
 Shepperd et al. v. County Com- 
 missioners of Sumter 
 (1877), 59 Ga. 535; 37 Am. 
 Eep. 394 . . . .39 
 
 Sherlock et aL v. Ailing, Ad- 
 ministrator (1876), 93 U. 
 S. 99 . . 169,188,193 
 
 Shipper et aL v. Pennsylvania 
 E E. Co. (1864), 47 Pa. St. 
 338 . . . . 231,386 
 
 Shively v. Bowlby (1894), 153 
 U. S. 1; 14 8. Ct. Rep. 548 135, 
 151 
 
 Shreveport, City of, v. Eed 
 Eiver & Coast Line (1885), 
 
TABLE OF OASES. 
 
 Mi 
 
 37 La. Ann. 563; 55 Am. St 
 
 Eep. 504 . . . . 145 
 Silliman v. Hudson River 
 
 Bridge Co., Coleman v. 
 
 Same (1859), 4 Blatoh. 395; 
 
 23 Fed. Cas. 130 . 115, 118 
 Silliman v. Hudson River 
 
 Bridge Co. (1857), 4 Blatoh. 
 
 74; 23 Fed. Cas. 116 115, 118 
 Simmons Hardware Co. v. Mo- 
 
 Guire, Sheriff (1887), 89 La. 
 
 Ann. 848; 3 S. Rep. 593 65,301, 
 275 
 Sinclair, Owens & Brown v. 
 
 State (1873), 69 N. C. 47 69, 376 
 Singer Mfg. Co. v. Hardee 
 
 (1888), 4 N. Max. 676; 16 
 
 Pao. Rep. 605; 33 Am. & 
 
 Eng. Corp. Cas. 551 178, 195 
 Singer Mfg. Co. v. Wright 
 
 (1895), (The Same v. 
 
 Thomas et al.), 97 Ga. 114; 
 
 25 S. E. Rep. 249; 5 Am. 
 
 & Eng. Corp. Cas. (N. S.) 
 
 129; 85L. R. A. 497 . 369 
 
 Singer Mfg. Co. v. Wright 
 
 (1887), 33 Fed. Rep. 131 377, 279 
 Sinnickson v. Johnson (1839), 
 
 17 N. J. L. (3 Harr.) 139; 
 
 34 Am. Dec. 184 . . 113 
 Sinnot et al. v. Davenport et 
 
 al. (1859), 32 How. 227 . 103 
 Slaughter-House Cases, The 
 
 (1873), 16 Wall. 36 . . 177 
 Sloop Martha Ann (The) 
 
 (1848), Olo. 18; 16 Fed. 
 
 Cas. 868 . . . . 151 
 Smith v. Alabama (1888), 134 
 
 U. S. 405; 8 S. Ct. Rep, 
 
 564; 33 Am. & Eng. R. 
 
 Cas. 435; 1 Int. Com. Rep. 
 
 804 163, 164, 169, 185, 187, 188 
 Smith V. Boston & Maine 
 
 R.R.CO. (1884),68N.H.25 170 
 Smith V. Lake Shore & M. 8. 
 
 Ry. Co. (Mich., 1897), 72 N. 
 
 W. Rep. 328 . . . 184 
 
 Smith V. Marston (1849), 5 Tex. 
 
 436 315 
 
 Smith V. State (1887), 85 Ala. 
 
 341; 6S. Rep. 928 . . 185 
 Smith V. State (1891), 54 Ark 
 
 348; 15 S. W. Rep. 882 . 83 
 Smith V. State of Maryland 
 
 (1855), 18 How. 71 99, 151, 153 
 Smith V. Turner (Passenger 
 
 Case) (1849), 7 How. 383 37,196 
 Smith and Bunce v. The Peo- 
 ple (1854), 1 Parker's Cr. 
 
 Rep. (N. Y.) 583 , . 84 
 Smyth V. Ames (1898), 169 
 
 U. S. 466; 171 U. S. 361; 
 
 18 S. Ct. Eep. 418 16, 41, 284, 
 385, 386 
 Snow et al. v. Hill et al. (1857), 
 
 30 How. 543 . . . 103 
 Soil Under Navigable Waters 
 
 (1880), 16 Op. Atty. Gen. 
 
 479 . , . . 110, 136 
 Solan V. Chicago, M. & St. P. 
 
 Ry. Co. (1895), 95 Iowa, 
 
 360; 63 N. W. Rep. 693; 58 
 
 Am. St. Rep. 480; 38 L. R. 
 
 A. 718 ; 5 Int. Com. Rep. 
 
 ,468 168 
 
 Somerville v. Marks (1871), 58 
 
 111.371 . . . .171 
 Soon Hing v. Crowley (1885), 
 
 113 U. S. 703; 5 S. Ct. Rep. 
 
 730; 7 Am. & Eng. Corp. 
 
 Cas. 646 . , , . 140 
 South Bethlehem v. Hackett 
 
 (1895), 7 Int. Com. Rep. 
 
 (App.) XXXI; 13 Lans. 
 
 L. Rev. 196 . . . 380 
 South Bend, City of, v. Mar- 
 tin (1895), 142 Ind. 31; 41 
 
 N. E.Rep. 315; 39L.R. A, 
 
 531 379 
 
 South Cambria, The Rowland 
 
 V. The South Cambria 
 
 (1886), 37 Fed. Rep. 535 . 143 
 South Carolina v. Georgia et 
 
 al. (1876), 93 U. S. 4 110, 118 
 
Iviii 
 
 TABLE OF OASES. 
 
 Southern Bell Telephone & 
 Telegraph Co. v. City of 
 Richmond (1897), 78 Fed. 
 Rep. 858 . . . . 180 
 
 Southern B. & L. Asso. v. Nor- 
 man, Auditor (1895), 98 
 Ky.294;33S.W.Rep.953; 
 56 Am. St. Rep. 367; 31 L, 
 RA. 41 . . . .55 
 
 Southern Express Co. v. Hood 
 (1867X 15 Rich. (S. C. Law), 
 66; 94 Am. Dec. 141 . . 263 
 
 Southern Express Co. v. Mayor 
 of Mobile (1873), 49 Ala. 
 404 269 
 
 Southern Express Co. v. Vir- 
 ginia ex rel. Buf ord (1897), 
 168U.S.705;18S.Ct.Rep. 
 268 
 
 Southern Pacific R. R. Co. v. 
 California (1896), 163 U. S. 
 167; 16 S. Ct. Rep. 794 273, 398 
 
 Southern Pacific Ry. Co. v. 
 Haas (Tex., 1891), 17 S. W. 
 Rep. 600; 49 Am. & Eng. 
 R. Cas. 37 . . . 284 
 
 Southern R. Co. v. City of 
 Asheville (1895), 69 Fed. 
 Rep. 859 . . . . 266 
 
 Spain, In re (1891), 47 Fed. Rep. 
 
 208; 14 L. R. A. 97 . 375, 378 
 
 Speer's Case (1873), 33 Gratt. 
 
 935; 14 Am. Rep. 164 69, 378 
 
 Spellman v. City of New Or- 
 leans (1891), 45 Fed. Rep. 3; 
 3 Int. Com. Rep. 575 150, 194 
 
 Spickler, In re (1890), 43 Fed. 
 
 Rep. 653 . . 77, 78, 141, 309 
 
 Spooner v. McConnell (1838), 
 1 McLean, 337; 23 Fed, 
 Cas. 939 . . , . 123 
 
 Spraigue v. Thompson (1886), 
 118 U. S. 90; 6 S. Ct. Rep. 
 988 143 
 
 Standard Oil Co. v. Bachelor, 
 Treasurer (1883), 89 Ind, 1; 
 
 3 Am. & Eng. Corp. Cas. 
 
 647 , , . . 63,250 
 Standard Oil Co. v. Combs 
 
 (1884), 96 Ind. 179; 49 Am. 
 
 Rep. 156 . . 63,224,225 
 Standard Underground Cable 
 
 Co. V. Attorney-General 
 
 (1889), 46 N. J. Eq. 370; 19 
 
 Atl. Rep. 733; 19 Am. St. 
 
 Rep. 394; 29 Am. & Eng. 
 
 Corp. Cas. 589 . 55, 338 
 
 Stanley v. Wabash, St. Louis 
 
 & Pacific Ry. Co. (1890), 
 
 100 Mo. 435; 13 S. W. Rep. 
 
 709; 43 Am. & Eng. R, 
 
 Cas. 338; 8 L. R A. 549; 
 
 3 Int. Com. Rep. 176 . 175 
 Starace v. Rossi (1897), 69 Vt; 
 
 303; 37 Atl. Rep. 1109 . 78 
 State V. Adams Exp. Co. et 
 
 al. (1895), 144 Ind. 549; 43 
 
 N. E. Rep. 483 . . . 259 
 State V. Adams Exp. Co. et al. 
 
 (1895), 2 Ohio, N. P. 98; 3 
 
 Ohio Deo. 326 . . 260, 264 
 State V. Addington (1883), 77 
 
 Mo. 110 . . . .195 
 State V. Adsit (Mich., 1897), 73 
 
 N. W. Rep. 381 . . 380 
 State V. Agee (1888), 83 Ala. 
 
 110; 2 Int. Com. Rep. 21 375,278 
 State V. Allgeyer (1896), 48 La. 
 
 Ann. 104; 18 S. Rep. 904 . 47 
 State V. Amery (1878), 13 R. L 
 
 64 67 
 
 State V. Blaokwell (1876), 65 
 
 Me. 556 . . . .84 
 State V. Boiler (1889), 47 Fed. 
 
 Rep. 415; 14 N. J. Law 
 
 Jour. 103 . . . . Ill 
 State V. Bowman (1890), 79 
 
 Iowa, 566; 44 N. W. Rep. 
 
 813 68 
 
 State V. Bowman (1889), 78 
 
 Iowa, 519; 43 N. W. Eep. 
 
 303 68 
 
TABLE OS CASES. 
 
 lix 
 
 State V. Bracco (1889), 103 N. 
 
 C. 349; 9 S. E Rep. 404 275, 378 
 State V. Browning (1876), 63 
 
 Mo. 591 . . . 276, 280 
 State V. Caldwell (1890), 81 
 
 Iowa, 759; 46 N. W. Eep. 
 
 1063 .... 69 
 
 State V. Campbell (1888), 64 N. 
 
 H. 403; 18 Atl. Rep. 685; 
 
 33 Am. & Eng. Corp. Cas. 
 
 13 58 
 
 State V. Campbell (1893), 53 
 
 Minn. 354: 55 N. W. Rep. 
 
 553; 31 L. R. A. 169 341, 848 
 State V. Carpenter (1887), 68 
 
 Wis. 165; 31 N. W. Rep. 
 
 730; 60 Am. Rep. 848 . 135 
 State V. Chapman (1890), 1 S. 
 
 Dak. 414; 47 N. W. Rep. 
 
 411; 10 L. R. A. 433 . 83 
 
 State V. Chicago & N. W. Ry, 
 
 Co. (1886), 70 Iowa, 163; 80 
 
 N. W. Rep. 398 ; 37 Am. & 
 
 Eng. R. Cas. 15 . . 384 
 State V, Chicago, St. Paul, M, 
 
 & O. Ry. Co. (1889), 40 
 
 Minn. 367; 41 N. W. Rep. 
 
 1047; 37 Am. & Eng. R. 
 
 Cas. 603; 3 L. R A. 338; 3 
 
 Int. Com. Rep. 519 . . 88 
 State V. City Council (1851), 4 
 
 Rich. (S. C. Law), 286 239, 386, 
 307 
 State V. Coonan (1891), 83 
 
 Iowa, 400; 48 N. W. Eep. 
 
 931; 3 Int. Com. Rep. 670 83 
 State V. Corbett (1894), 57 
 
 Minn. 345; 59 N. W. Rep. 
 
 817; 58 Am. & Eng. R. 
 
 Cas. 35; 34 L. R. A. 498; 
 
 4 Int. Com. Rep. 694 169, 183 
 State V. Corrick (1891), 83 Iowa, 
 
 451; 48 N. W. Rep. 808; 3 
 
 Int. Com. Rep. 669 . . 69 
 State V. Creeden (1889), 78 
 
 Iowa, 556; 43 N. W. Rep. 
 
 673; 40 Am. & Eng. R. 
 
 Cas. 31; 7 L. R. A. 295 . 68 
 State V. Del., Lackawanna & 
 
 Western R. E. Co. (1864), 
 
 30 N. J. L. 473 . . 315, 319 
 State V. Deschamp (1890), 53 
 
 Ark. 490; 14 S. W. Rep. 
 
 653; 8 Int. Com. Rep. 576 376, 
 377 
 State V. Dibble (1856), 4 Jones 
 
 L. (N. C.) 107 . . . 113 
 State V. Doxtater (1879), 47 
 
 Wis. 378 . . . . 348 
 State V. Duckworth (Idaho, 
 
 1897), 51 Pac. Rep. 456; 89 
 
 L. R. A. 365 58, 146, 193, 194 
 State V. Emert (1890), 103 Mo. 
 
 341; 15 S. W. Rep. 81; 33 
 
 Am. St. Eep. 874; 34 Am. 
 
 & Eng. Corp. Cas. 168; U 
 
 L. R. A. 319; 3 Int. Com. 
 
 Rep. 527 . . . 30, 379 
 State V. Fitzpatrick (1888), 16 
 
 E. L 54; 11 Atl. Eep. 767 55, 68 
 State V. Foreman (1835), 8 
 
 Yerg. 356 . . .349 
 
 State V. Fosdick (1869), 31 La. 
 
 Ann. 356 . . 146, 154, 155 
 State V. French (1891), 109 N. 
 
 C. 733; 14 S. E. Eep. 383 . 383 
 State V. Fulker (1890), 43 Kan. 
 
 237; 33 Pao. Eep. 1030; 7 
 
 L. E. A. 183 , . 68, 73 
 State V. Furbush (1881), 73 Me. 
 
 493 . . . . 238,380 
 State V. Geer (1891), 61 Conn. 
 
 144; 33 AtL Eep. 1013; 13 
 
 L. E. A 804; 3 Int. Com. 
 
 Eep. 733 . . . . 150 
 State V. Gladson (1894), 57 
 
 Minn. 885; 59 N. W. Eep. 
 
 487; 24 L. E. A. 503 . 184 
 State V. Goetze (W. Va., 1897), 
 
 37 S. E. Eep. 335 . . 83 
 State V. Gorham (1894), 115 N. 
 
 C. 731; 20 S. E. Eep. 179; 
 
ix 
 
 TABLE OF OASES. 
 
 44 Am. St. Rep. 494; 25 L. 
 
 R. A.810. . . .55 
 State V. Gulf, C. & a F. Ry. 
 
 Co. (Tex. Civ. App., 1898), 
 
 44 S. W. Rep. 543 . . 92 
 State V. Gurney (1853), 37 Me. 
 
 149; 58 Am. Dec. 782 . 68 
 State V. Harbourne (Conn., 
 
 1898), 40 Atl. Rep. 179 . 56 
 State V. Harris (1879), 47 Wis. 
 
 398 848 
 
 State V. Harrub, State v. Mel- 
 
 vin (1891), 95 Ala. 176; 10 
 
 S. Rep. 753; 36 Am. St. 
 
 Rep. 195; 15 L. R. A. 761; 
 
 4 Int. Com. Rep. 99 . 99, 151 
 State V. Hudson Freeholders 
 
 (1851), 33 N. J. L. (3 Zab.) 
 
 306 159 
 
 State V. Indiana & Illinois 
 
 Southern R. R. Co. (1893), 
 
 133 Ind. 69; 33 N. E. Rep. 
 
 817; 18 L. R. A. 503; 56 
 
 Am. & Eng. R. Cas. 354 . 185, 
 295 
 State V. Intoxicating Liquors 
 
 (1886), 78 Me. 401; 6 Atl. 
 
 Rep. 4 . . . .193 
 State V. Intoxicating Liquors 
 
 (1890), 82 Me. 558; 19 Atl. 
 
 Rep. 913 . , . .69 
 State V. Intoxicating Liquors 
 
 (1891), 83 Me. 158; 21 Atl. 
 
 Rep. 840; 3 Int. Com. Rep. 
 
 581 . . . . 67,69 
 State V. Joyner (1879), 81 N. C. 
 
 534 . . . . 69, 275 
 State V. Kennedy & Co. (1867), 
 
 19 La. Ann. 397 65, 69, 266, 281 
 State V. Kibling (1891), 63 Vt. 
 
 636; 32 AtL Rep. 613 69, 375, 
 376 
 State V. Klein (1890), 186 Ind. 
 
 68; 25 N. E. Rep. 873; 8 
 
 Int Com. Rep, 573 . . 150 
 
 State V. Leighton (1891), 83 
 
 Me. 419; 23 AtL Rep. 380 115, 
 118 
 State V. Liohtenstein (W. Va., 
 
 1897), 38 S. E. Rep. 753 . 375 
 State V. Long (1886), 95 N. C. 
 
 582; 59 Am. Rep. 263 . 278 
 State V. Lord (1891), 66 N. H. 
 
 479; 39 Atl. Rep. 556 81, 143 
 State V. Lovell (1874), 47 Vt 
 
 493 55 
 
 State V. Marsh (Kate) (1881), 
 
 87 Ark. 356 . . .376 
 State V. Marshall (1888), 64 N. 
 
 H. 549; 15 Atl. Rep. 310; 
 
 1 L. R. A. 51 . . . 50 
 State V. McGinnis (1881), 37 
 
 Art. 363 . . . . 380 
 State V. Miller (1893), 86 Iowa, 
 
 638; 53 N. W. Rep. 330 . 83 
 State V. Morgan (1891), 3 S. D. 
 
 82; 48 N. W. Rep. 314 . 55 
 State V. Nash (1887), 97 N. C. 
 
 514; 3 S. E. Rep. 645 194> 376 
 State V. Nathan (1845), 12 Rob. 
 
 (La.) 332 . . . .46 
 State V. New York & Erie Ry. 
 
 Co. (1864), 30 N. J. L. 473 231 
 State V. North & Scott (1858), 
 
 27 Mo. 464 150, 338, 376, 377, 
 383 
 State V. Northern Pac. Ex- 
 press Co. (1894), 58 Minn. 
 
 403; 59 N. W. Rep. 1100 . 151 
 State V. O'Connor (1896), 5 N. 
 
 D. 639; 67 N. W. Rep. 834 375, 
 278 
 State V. O'Neil (1885), 58 Vt. 
 
 140; 3 Atl. Rep. 586; 56 
 
 Am. Rep. 556; 11 Am. & 
 
 Eng. Corp. Cas. 374 . . 68 
 State V. Parsons (1894), 134 Mo. 
 
 436; 37 S.W. Rep. 1103; 46 
 
 Am. St. Rep. 457; 5 Int. 
 
 Com. Rep. 250 82, 276, 379, 280 
 
TABLE OF OASES. 
 
 1X1 
 
 State V. reckham (1838), 3 R. I. 
 
 289 85 
 
 State V. Pennsylvania Ca 
 (1893), 138 Ind. 700; 32 N. 
 B. Rep. 823 . . 185, 295 
 
 State V. Penny (1882), 19 S. C. 
 
 218 141 
 
 State V. Pfleajor (State v, 
 Caldwell) (1890), 81 Iowa, 
 759; 46 N. W. Rep. 1063 . 69 
 
 State V. Phipps (1893), 50 Kan. 
 609; 31 Pac. Rep. 1097; 34 
 Am. St. Rep. 152; 40 Am. 
 & Eng. Corp. Cas. 345; 18 
 L. R A. 657; 4 Int. Com. 
 Rep. 299 .... 47 
 
 State V. Pinckney (1855), 10 
 
 Rich. (S. C. Law). 474 279, 281 
 
 State V. Pittsburgh & South- 
 ern Coal Co. (1889), 41 La. 
 Ann, 465; 6 S. Rep. 330 . 154 
 
 State V. Potterfleld (1896), 47 
 
 S. C. 75; 35 S. E. Rep. 39 . 80 
 
 State V. Pratt (1887), 59 Vt. 
 590; 9 Atl. Rep. 556; 18 
 Am. & Eng. Corp. Cas. 43; 
 
 I Int. Com. Rep. 299 67, 280 
 State V. Pullman's Palace Car 
 
 Co. and another (1885), 64 
 Wis. 89; 23 N. W. Rep. 871 185, 
 266 
 
 State V. Railroad Co. (B. & O.) 
 (1884), 24 "W. Va. 783; 49 
 Am. Rep. 290; 18 Am. & 
 Eng. R. Cas. 466 . . 179 
 
 State V. Railway Co. (1896), 119 
 N.C.814;35S.E.Rep.862; 
 56 Am. St. Rep. 689 . 179 
 
 State V. Randolph (1876), 1 Ma 
 
 App. 15 . . . .150 
 
 State V. Rhodes (1894), 90 Iowa, 
 496; 58N.W. Rep. 887; 34 
 
 II R. A. 345 . . . 78 
 State V. Richards (1889), 33 
 
 W. Va. 348; 9 S. E. Rep, 
 B 
 
 245; 28 Am. & Eng. Corp. 
 
 Cas. 98; 3 L. R. A. 705 278, 280 
 State V. Robinson (1863), 49 
 
 Me. 285 . . . 67,85 
 State V. Sargent (1877), 45 
 
 Conn. 358 ... 118 
 State V. Saunders (1877), 19 
 
 Kan. 127; 27 Am. Rep. 98 150, 
 193 
 State V. Scott (1897), 98 Tenn. 
 
 254; 39 S. W. Rep, 1; 36 
 
 L. R. A. 461 . . .275 
 State V. Shapleigh (1858), 27 
 
 Mo. 344 . . . 67,85,279 
 State V. Sickmann (1896), 65 
 
 Mo. App. 499 . . . 299 
 State V. Smithson (1891), 106 
 
 Ma 149; 17 S W. Rep. 221 280 
 State V. Smyth (1883), 14 R L 
 
 100; 51 Am, Rep, 344 . 58 
 State V. Snoddy (1895), 128 Ma 
 
 533; 31 S, W, Rep. 36; 5 
 
 Int. Com. Rep. 279 . . 279 
 State V. Steamship Constitu- 
 tion (1873), 42 CaL 578; 10 
 
 Am. Rep. 303 . 59, 148, 196 
 
 State V. Stevenson (1891), 109 
 
 N. C. 730; 14 S. E. Rep. 385 383 
 State V. Stilsing (1890), 53 N. 
 
 J. L. 517; 20 Atl. Rep. 65 193 
 State V. Stripling (1897), 113 
 
 Ala. 130; 21 S. Rep. 409; 
 
 36 L. E. A. 81 . . . 56 
 State V. Stucker (1882), 58 
 
 Iowa, 496; 12 N. W. Rep. 
 
 483 . . . .72, 338 
 State V. Tax Collector (1831), 
 
 2 Bailey (S. C. Law), 654 . 16 
 State V. Thompson (1893), 85 
 
 Me. 189; 37 Atl. Rep. 97 , 151 
 State V. Underground Cable 
 
 Ca (N. J. Ch., 1889), 18 
 
 Atl. Rep. 581 . . 5b, 338 
 State V. Wade (1890), 63 Vt. 
 
 80; 32 Atl, Rep, 12 . .83 
 
Lxii 
 
 TABLE OF CASES. 
 
 State T. Welton (1874), 55 Mo. 
 
 288 . . . . 376,280 
 State V. "Wessell (1891), 109 
 
 N. O, 735; 14 S. E. Eep. 
 
 391 379 
 
 State V. Wheeler (1856). 25 
 
 Conn. 290 ... 72 
 State V. Wheelock (1895), 95 
 
 Iowa, 577; 64 N. W. Rep. 
 
 620; 58 Am. St. Rep. 442; 
 
 30 L. B. A. 439 . 55, 280 
 
 State V. White Oak River 
 
 Corporation (1892), 111 
 
 N. C. 661; 16 S. E. Eep. 
 
 331 . . . . 100, 113 
 State V. Wise (Minn., 1897), 73 
 
 N. W. Rep. 843 . . 850 
 State V. Zimmerman (1889), 78 
 
 Iowa, 614; 43 N. W. Rep. 
 
 458 68 
 
 State, Detmold et al., pros., v. 
 
 Engle, Receiver (1871), 34 
 
 N. J. L. 425 . . 63, 224 
 State, Lehigh, etc. Coal Co., 
 
 pros., V. Carrigan (1876), 
 
 39 N. J. L. (10 Vroom), 35 63, 
 323 
 State of Connecticut v. New 
 
 York, New Haven & 
 
 Hartford R. E. Co. (1891), 
 
 60 Conn. 336; 23 Atl. Eep. 
 
 765 354 
 
 State of Illinois v. Illinois 
 
 Cent. E. Co.; United 
 
 States V. Same; City of 
 
 Chicago V. Illinois Cent. 
 
 E. Co. (1888), 33 Fed. Eep. 
 
 730 . . . . 113, 135 
 State of Indiana v. The Amer- 
 ican Exp. Co. (1876), 7 Biss. 
 
 327 ; 1 3 Fed. Caa 24 . 264, 266 
 State of Iowa v. Chicago, M, 
 
 & St. P. Ry. Co. (1887), 33 
 
 Fed. Rep. 391; 4 Int. Com. 
 
 Rep. 435 . , 95, 160, 185 
 
 State of Iowa v. McGregor 
 
 (1896), 76 Fed. Rep. 956 69, 83 
 
 State of Louisiana v. Lagarde 
 
 (1894), 60 Fed. Rep. 186 155, 157 
 
 State of Maryland v. Balti- 
 more & Ohio R. E. Co. 
 (1871), 34 Md. 344 . , 399 
 
 State of Maryland v. Charles 
 G. Applegarth (1895), 81 
 Md. 293; 31 Atl. Rep. 961; 
 28 L. E. A. 813 . . 151 
 
 State of Maryland v. Cumber- 
 land & Pennsylvania E. R. 
 Co. (1873), 40 Md. 23 333, 335 
 
 State of Maryland v. George 
 H.Insley(1885),64Md.38; 
 20 Atl. Rep. 1031 . , 153 
 
 State of Maryland v. Phila., 
 Wilm. & Baltimore R. R. 
 Co. (1876), 45 Md. 361; 24 
 Am. Rep. 511 . . . 263 
 
 State of Wisconsin v. The 
 City of Eau Claire and 
 others (1876), 40 Wis. 533 116 
 
 State ex reL v. C, N. O. & T. 
 P. Ry. Co. (1890), (State 
 ex rel. v. C, W. & B. Ey. 
 Co.), 47 Ohio St. 130; 83 
 N. E. Eep. 928; 42 Am. & 
 Eng. E. Cas. 330; 7 L. R. 
 A. 319 . . . , 293 
 
 State ex rel. v. Eraser (1891), 
 1 N. D. 425; 48 N. W. 
 Eep. 343; 3 Int. Com. Eep. 
 577 . . . . 78,81 
 
 State ex rel. v. Jones, Audi- 
 tor (1894), 51 Ohio St 492; 
 37 N. E. Eep. 945; 48 Am. 
 & Eng. Corp. Cas. 239 . 259 
 
 State ex rel. v. Pullman Palace 
 Car Co. (1883), 16 Fed. Eep. 
 193; 11 Biss. 561 . 192, 265 
 
 State ex reL v. Winters (1890), 
 44 Kan. 723; 25 Pac. Eep. 
 235; 10 L. E. A. 616 69, 83, 83 
 
TABLE or CASES. 
 
 Ixiii 
 
 state ex rel. Abbott v. Judge 
 et al. (1892), 44 La. Ann. 
 770; 11 S. Eep. 74 . . 174 
 
 State ex rel. American Exp. 
 Co. V. State Board of As- 
 sessment and Equaliza- 
 tion (1892), 3 S. D. 338; 53 
 N. W. Eep. 192 . 259, 268 
 
 State ex reL Belden v. Fagan 
 
 (1870), 22 La. Ann. 545 . 177 
 
 State ex rel. Carr v. Wood- 
 ruff Sleeping and Parlor 
 Coach Co. (1887), 114 Ind. 
 155; 15 N. E. Rep. 814; 33 
 Am. & Eng. R. Cas. 476; 
 1 Int. Com. Eep. 798 265, 266 
 
 State ex rel. Commissioners 
 V. Western Union Tel. Co. 
 (1893), 113 N. C. 313; 18 
 S. E. Rep. 389; 44 Am. & 
 Eng. Corp. Cas. 377; 23 
 L. R. A. 570 ... 89 
 
 State ex rel. Corwin v. Indi- 
 ana & Ohio Oil, Gas & 
 Mining Co. (1889), 120 Ind. 
 575; 23 N. E. Rep. 778; 
 29 Am. & Eng. Corp. Cas. 
 237; 6L. R. A. 579; 3 Int. 
 Com. Rep. 758 44, 192, 193, 195, 
 224 
 
 State ex rel. Gelpi & Bro. v. 
 Board of Assessors et aL 
 (1894), 46 La. Ann. 145; 15 
 S. Rep. 10 ; 49 Am. St. Rep. 
 318 . , . 67, 83, 83, 236 
 
 State ex rel. George v. Aiken 
 (1894), 42 S. C. 333; SOS. E. 
 Rep. 231 ; 36 L. E. A. 345 78, 80 
 
 State ex rel. Leese v. A. & N. 
 E. R. Co, (1888), 34 Neb, 
 143; 38 N. W. Eep. 43; 8 
 Am. St. Rep. 164; 33 Am. 
 & Eng. R. Cas. 388 . . 303 
 
 State ex reL Railroad Co. v. 
 
 Harbor Line Com'rs (1893), i 
 
 4 Wash. 816; 30 Pac. Rep. 
 734 144 
 
 State ex rel. Stoeser v. Brass 
 (1893), 3 N. Dak. 483; 53 
 N. W. Rep. 408; 37 Am. & 
 Eng. Corp. Cas. 137 . . 394 
 
 State ex rel. Waterbury v. 
 Newton (1888), 50 N. J. L. 
 534; 14 Atl. Eep. 604; 23 
 Am. & Eng. Corp. Cas. 42; 
 3 Int. Com. Rep. 63 79, 195 
 
 State Freight Tax, Case of, 
 Reading R. E. Co. v. Penn- 
 sylvania (1873), 15 Wall. 
 333 . 20, 38, 31, 38, 40, 41, 43, 
 148, 321, 262, 297 
 
 State Eailroad Tax Cases 
 
 (1875), 93 U. S. 575 337, 338, 
 
 344, 345 
 
 State Tax on Foreign-held 
 Bonds, Case of (Eailroad 
 Co. V. Pennsylvania) 
 (1872), 15 Wall. 300 . , 199 
 
 State Tax on Eailway Gross 
 Eeceipts, Case of (Bead- 
 ing E. E. Co. V. Pennsyl- 
 vania) (1873), 15 Wall. 384 189, 
 303, 261, 264, 297 
 
 State Tonnage Tax Cases 
 
 (1870), 12 Wall. 204 101, 102, 
 145, 335 
 
 State Treasurer v. P., W. & B. 
 R. R Co. (1870), 4 Houst. 
 (Del.) 158 193, 218, 219, 223, 334 
 
 Steamboat New York, etc. et 
 aL V. Rea, etc. (1855), 18 
 How. 233 ... 103 
 
 Steamboat Co. v. Livingston 
 (1834), Hopk. Ch. 149 (3d 
 ed., p. 170) . . 61, 110 
 
 Steamship v. Port Wardens 
 
 (1867), 6 WalL 31 143, 145, 335, 
 235 
 
 Steamship Co. v. Joliffe (1864), 
 aWaU. 450 . . .141 
 
Lxiv 
 
 TABLE OF OASES. 
 
 Steraberger v. Cape Fear & 
 Yadkin Valley E. E. Co. 
 (1888), 39 S. C. 510; 7 S. E, 
 Eep. 836; 35 Am. & Eng. 
 E.Cas. 693; 2L.E.A. 105; 
 2 Int. Com. Eep. 426 . 89 
 
 Sterrett v. Houston (1855), 14 
 
 Tex. 153 . . . . 144 
 
 Stevens v. Brown (1871), 58 IIL 
 
 289 171 
 
 Stewart v. Harry (1867), 8 
 
 Bush (Ky.), 438 . . 97 
 
 Stilwell V. Eaynor (1860), 1 
 
 Daly, 47 . . . .141 
 
 Stockton, Ex parte (1887), 33 
 
 Fed. Eep. 95 . . . 275 
 
 Stockton V. Baltimore & N. Y. 
 E. Co. (1887), 33 Fed. Eep. 
 9; 1 Int. Com. Eep. 411 33, 41, 
 97, 110, HI, 178, 191, 314 
 
 Stockton V. Powell (1892), 29 
 Fla. 1; 10 S. Eep. 688; 15 
 L. E. A. 43 . . 113, 119 
 
 Stommel v. Timbrel (1892), 84 
 Iowa, 336; 51 N. W. Eep. 
 159 84 
 
 Stone V. Farmers' Loan & 
 Trust Co. (1886), 116 U. S. 
 307; 6 S. Ct. Eep. 334, 388, 
 1191; 33 Am. & Eng. E. 
 Cas. 577 179, 187, 211, 285 
 
 Stone V. Illinois Central E. 
 Co. (1885), 116 U. S. 347; 6 
 S. Ct. Eep. 348, 388, 1191; 
 S3 Am. & Eng. E. Cas. 597 395 
 
 Stone et al., Eailroad Commis- 
 sioners, V. Yazoo & Mis- 
 sissippi Valley E. E. Co. 
 (1885), 63 Miss. 607; 50 
 Am. Eep. 193; 31 Am. & 
 Eng. R Cas. 6 . . 284 
 
 Stoughton V. State of Wiscon- 
 sin (1856), 5 Wis. 291 . 113 
 
 Stoutenburgh v. Hennick 
 (1889), 129 U.S. 141; 9 S. 
 
 Ct. Eep. 256; 3 Int. Com. 
 
 Eep. 409 . . . 38,60,309 
 Strader etaL v. Graham (1850), 
 
 10 How. 82 . . . 132 
 Stratford v. City Council of 
 
 Montgomery (1895), 110 
 
 Ala. 619; 20 S. Eep. 127 275, 
 378, 281 
 Sturgis V. SpoflEord (1871), 45 
 
 N. Y. 446 . . 143,186 
 
 Sullivan v. Moreno (1883), 19 
 
 Fla. 200 . . 113,116,136 
 Sunswick, The Steamboat 
 
 (1872), 6 Ben. 112; 15 Int. 
 
 Eev. Eeo. 154; 33 Fed. 
 
 Cas. 424 . . . 93,104 
 Sweatt V. Boston, Hartford & 
 
 Erie E. E. Co. et al. (1871), 
 
 3 ClifiE. 339; 23 Fed. Cas. 
 
 530 45 
 
 Sweeney v. Chicago, Milwau- 
 kee & St. Paul Ey. Co. 
 (1884), 60 Wis. 60; 18 N. 
 W. Eep. 756; 20 Am. & 
 Eng. E Cas. 368 . . 135 
 Sweeney v. Otis (1885), 37 La. 
 
 Ann. 520 . . . 144, 145 
 Swift V. Philadelphia & E. E. 
 Co. (1893), 58 Fed. Eep. 858; 
 
 4 Int. Com. Eep. 638 88, 163, 
 
 163, 284 
 Swift V. Philadelphia & E. E. 
 Co. (1894), 64 Fed. Eep. 59; 
 
 5 Int. Com. Eep. 116 163, 168 
 Swift V. Sutphin (1889), 39 
 
 Fed. Eep. 630; 27 Am. & 
 Eng. Corp. Cas. 659; 2 Int. 
 Com. Eep. 656 56, 150, 194 
 
 Talbutt V. State (Tex. Crim. 
 
 App., 1898), 44 S. W. Eep. 
 
 1091 . . . .378 
 Tax Collector v. Pettigrew 
 
 (1893),44La. Ann. 356; 10 
 
 S. Eep. 853 . . 375,378 
 
TABLE 0¥ OASES. 
 
 Ixv 
 
 Taylor v. Drew (1860), 21 Ark. 
 
 485 351 
 
 Telegraph Co. (Postal Tel. Co.) 
 
 V. Baltimore (1891), 79 Md. 
 
 503; 29 AtL Rep. 819; 24 
 
 L. R. A. 161 . . . 180 
 Telegraph Co. (Western 
 
 Union) v. Philadelphia 
 
 (Pa. Supp., 1888), 33 W. N. 
 
 C. 39 . . . . 180 
 Telegraph Co. (Western 
 ' Union) v. Texas (1881), 
 
 105 U. S. 460 46, 193, 200, 223, 
 224, 232, 349 
 Tennessee v. Pullman South- 
 ern Car Co. (1886), 117 
 
 U. S. 51 ; 6 S. Ct. Rep. 643 203, 
 207 
 Terrell, In re (1893), 51 Fed. 
 
 Rep. 213 . . . . 327 
 Territory v. Evans (1890), 3 
 
 Idaho, 634; 33 Pao. Rep. 
 
 115; 7 L. R. A. 288 . 151, 193 
 Territory V. Farnsworth (1885), 
 
 5 Mont. 303, 324; 5 Pao. 
 
 Rep. 869, 878 . . 277, 278 
 Territory v. Guyott (1889), 9 
 
 Mont. 46; 22 Pac. Rep. 134 346, 
 348, 352 
 Territory v. Nelson (1890), 3 
 
 Idaho, 638; 23 Pac. Rep. 
 
 116 151 
 
 Texarkana & Fort Smith Ry. 
 
 Co. V. Parsons (1896), 40 
 
 U. S. App. 13; 20 C. 0. A. 
 
 481;74Fed. Rep. 408 . Ill 
 Texas & Pacific Ry. Co. v. 
 
 Adams (1890), 78 Tex. 372; 
 
 14 S. W. Rep. 666; 32 Am. 
 
 St. Rep. 56 . . .168 
 Texas & Pacific Ry. Co. v. 
 
 Avery (Tex. Civ. App,, 
 
 1895), 33 8. W. Rep. 704 94 
 Texas & Pacific Ry. Co. v. 
 
 City of Baton Rouge(1888), 
 
 36 Fed, Rep. 845 . . 161 
 
 Texas & Pacific Ry. Co. r. ',')' 
 
 City of New Orleans 
 
 (1889), 40 Fed. Rep. Ill , 113 
 Texas & Pacific Ry. Co. v. 
 
 Clark (1893), 4 Tex. Civ. 
 
 App. 611; 23 S.W. Rep. 698 384 
 Texas & Pacific Ry. Co. v. 
 
 Interstate Transportation 
 
 Co. (1895), 155 U. S. 585; 
 
 15 S. Ct. Rep. 228 . . 113 
 Texas & Pacific R. R. Co. et 
 
 al. V. Southern Pacific 
 
 R. R. Co. (1889), 41 La. Ann. 
 
 970; 6 So. Rep. 888; 17 Am. 
 
 St. Rep. 445; 40 Am. & 
 
 Eng. R. Cas. 473 . . 303 
 Thacher v. Fitchburg R. R. 
 
 Co. (1887), 1 Int. Com. Rep. 
 
 356; 1 Int. Com. Comm. 
 
 Rep. 152 . . . . 290 
 Thames Bank v. Lovell (1847), 
 
 18 Conn. 500; 46 Am. Dec. 
 
 332 113 
 
 Thomas, Ex parte (1886), 71 
 
 Cal. 304; 13 Pac. Rep. 53 376, 
 380 
 Thomas v. Cincinnati, N. O. & 
 
 T. P. R. Co. (1894), 63 Fed. 
 
 Rep. 803; 4 Int. Com. Rep. 
 
 788 . . . . 309,335 
 Thomas v. Wabash, St. L. & 
 
 P. R. Co. (1894), 63 Fed. 
 
 Rep. 300; 4 Int. Com. Rep. 
 
 803 167 
 
 Thomas JeflEerson, The (1825), 
 
 10 Wheat. 428. . . 95 
 Thomas Swan, The (1872), 6 
 
 Ben. 42; 23 Fed. Cas. 1011 91, 
 101, 103, 104 
 Thompson v, Spraigue, Soulle 
 
 & Co. (1882), 69 Ga. 409; 47 
 
 Am. St. Rep. 760 . . 143 
 Thompson v. Van Vechten 
 
 (1857), 5 Abb. Pr. 458 . 103 
 Thomson v. Pacific R R. Co. 
 
 (1889), 9 Wall, 579 . . 231 
 
Ixvi 
 
 TABLE OF CASES, 
 
 Thornton, Ex parte (1882), 4 
 
 Hughes, 330; 13 Fed. Rep. 
 
 538 . . . . .378 
 Thorpe v. Rutland & Bur. R. 
 
 Co. (1855), 37 Vt. 140; 63 
 
 Am. Dec. 635 . . . 179 
 Thunder Bay River Booming 
 
 Co. V. Speechly (1875), 31 
 
 Mich. 836; 18 Am. Rep. 
 
 184 136 
 
 Tide Water Pipe Co. v. As- 
 sessors (1895), 57 N. J. L. 
 
 516; 31 Atl. Rep. 320 . 268 
 Tiernan v. Rinker (1880), 103 
 
 U. S. 133 , . 38, 66, 338 
 Tilson V. Catling (1895), 60 
 
 Ark. 114; 29 S. W. Rep. 
 
 35 46 
 
 Tinker v. State (1893), 96 Ala. 
 
 115; 11 S. Rep. 388 . . 83 
 Tinker v. State (1891), 90 Ala. 
 
 638; 8 S. Rep. 814 . . 81 
 Titusville v. Brennan (1891), 
 
 143 Pa. St. 642; 33 Atl. 
 
 Rep. 893; 28 W. N. C. 584; 
 
 24 Am. St. Rep. 580; 14 L. 
 
 R. A. 100; 3 Int. Com. 
 
 Rep. 735 . . . 277, 278 
 Toledo Commercial Co. v. Glen 
 
 Manufacturing Co. (1896), 
 
 11 Ohio C. C. Rep. 153; 5 
 
 Ohio Dec. 131 . . . 196 
 Toledo, Wabash & Western 
 
 Ry. Co. V. Thompson (1874), 
 
 71 111. 434 .. . 176 
 Tonnage Tax Cases (1869), 63 
 
 Pa. St. 386; 1 Am. Rep. 
 
 899 . . . . 197, 331 
 Town of Pacific Junction v. 
 
 Dyer (1884), 64 Iowa, 38; 
 
 19 N. W. Rep. 863 69, 276, 377 
 Tracy & WahrendorflE v. The 
 
 State (1839), 3 Mo. 3 336, 383 
 Trade Co. v. The Collector 
 
 (1870), 12 Wall 304 . 101, 103, 
 145, 335 
 
 "Trade Mark Cases (1879), 100 
 
 U. S. 83 . . . 60, 70, 817 
 
 Train v. Boston Disinfecting 
 
 ; Co. (1887), 144 Mass. 533; 
 
 \ 11 N. E. Rep. 939; 59 Am, 
 Rep. 113; 19 Am. & Eng. 
 
 ' Corp. Cas. 548 . . .146 
 
 Trammell et al., R. R. Commis- 
 sion of Ga., V. Clyde Steam- 
 ship Co. et al. (1892), 5 Int. 
 Com. Comm. Rep. 334; 4 
 Int Com. Rep. 130 . 93, 94 
 
 Transportation Co. v. Chicago 
 
 (1878), 99 U. S. 635 . . 136 
 
 Transportation Co. v. Parkers- 
 burg (1883), 107 U. S. 691; 
 2 S. Ct. Rep. 733 38, 144, 145, 
 195, 335 
 
 Transportation Co. v. Wheel- 
 ing (1878), 99 U. S. 373 339, 338 
 234, 236 
 
 Tredway v. Riley (1891), 33 
 Neb. 495; 49 N. W. Rep. 
 268; 29 Am. St. Rep. 447 55, 61 
 
 Trombley v. Humphrey, Au- 
 ditor-General (1871), 23 
 Mich. 471 . . 314,315 
 
 Troy Board of Trade v. Ala- 
 bama Midland R. Co. et al. 
 (1898), 4 Int. Com. Rep. 
 848 . . . . 93, 94 
 
 Tuchman v. Welch, Tount v. 
 Same (1890), 43 Fed. Rep. 
 548 69 
 
 Tugwell & Madison v. Eagle 
 Pass Ferry Co. (1888), 74 
 Tex. 480; 9 S. W. Rep. 130; 
 13 S. W. Rep. 654; 33 Am. 
 & Eng. Corp. Cas. 563; 39 
 Am. & Eng. Corp. Cas. 512 158 
 
 Turner v. Maryland (1882), 107 
 
 U. S. 88; 3 S. Ct. Rep. 44 63, 
 154, 155, 157 
 
 Turner, Henry A., v. The State 
 of Maryland (1881), 55 Md. 
 340 . , 156 
 
TABLE OF OASES. 
 
 Ixvii 
 
 Turpin v. Burgess (1886), 117 
 U. S. 504; 6 S. Ct. Rep. 
 835 63 
 
 Tyerman, In re (1891), 48 Fed. 
 
 Eep. 167 . . . 275, 278 
 
 Union Towboat Co. v. Borde- 
 
 lon (1852), 7 La. Ann. 192 229, 
 236 
 
 Union Trust Co. of New York 
 V. A., T. & S. F. Ry. Co. 
 (1895), 8 N. Mex. 327; 43 
 Pac. Eep. 701 . . . 46 
 
 United States, In re (Petition 
 for the Appointment of 
 Com'rs), 96 N. Y. 227; 67 
 How. Pr. 121; 66 How. Pr. 
 517 . . . . 314, 315 
 
 United States v. Addyston 
 Pipe & Steel Co. (U. S. 
 App., C. C. A., 1898), 85 
 Fed. Rep. 271 . 331,333,334 
 
 United States v. Addyston 
 Pipe & Steel Co. (1897), 
 78 Fed. Rep. 712; 7 Am. 
 & Eng. Corp. Cas. (N. S.) 
 753 880 
 
 United States v. Agler (1894), 
 
 62 Fed. Rep. 834 . . 325 
 
 United States v. Alaska Pack- 
 ers' Ass'n (1897), 79 Fed. 
 Eep. 152 . . . . 150 
 
 United States v. Anderson 
 (1873), 10 Blatoh. 226; 24 
 Fed. Cas. 812 . . .101 
 
 United States v. Bailey (1834), 
 1 McLean, 234; 24 Fed. 
 Cas. 937 . . . .348 
 
 United States v. Bain et al. 
 (1879), 3 Hughes, 593; 24 
 Fed. Cas. 940 . . .118 
 
 United States v. Barnhart 
 (1884), 22 Fed, Rep. 385; 10 
 Sawy. 491 . . .247 
 
 United States v. Beacham 
 
 (1886), 29 Fed. Rep. 284 98, 105 
 
 United States v. Beef Slough, 
 etc. Co. (1879), 8 Biss. 421; 
 24 Fed. Cas. 1034 . . 112 
 
 United States v. Beidelman 
 (1881), 7 Fed. Rep. 894; 7 
 Sawy. 243; 8 Pac. Coast 
 Law Jour. 108 . . 345 
 
 United States v. Bellingham 
 Bay Boom Co. (1896), 72 
 Fed. Rep. 585 . . . 115 
 
 United States v. Bichard & 
 
 Co. (1871), 1 Ariz. 31 . 850 
 
 United States v. Boston & A. 
 R. Co. (1883), 15 Fed. Rep. 
 209 . . . . 94,175 
 
 United States v. Boyd (U. S. 
 App., 1897), 83 Fed. Rep. 
 547; 27 C. C. A. 593 . 353 
 
 United States v. Boyer (1898), 
 
 85 Fed. Rep. 425 . 55, 389 
 
 United States v. The Brigan- 
 tine William (1808), 3 
 Hall's Law Jour. 355; 38 
 Fed. Cas. 614 . . . 305 
 
 United States v. Burlington & 
 H. Co. Ferry Co. (1884), 21 
 Fed. Rep. 331 44, 98, 104, 105 
 
 United States v. Burns (1893), 
 
 54 Fed. Rep. 351 . . 110 
 
 United States v. Cassidy 
 
 (1895), 67 Fed. Rep. 698 44, 335 
 
 United States v. Cha-to-kah- 
 ua-pe-sha (1824), Hemp. 
 27; 25 Fed. Cas. 414 . 248 
 
 United States v. Chicago, K. 
 & S. R. Ca (1897), 81 Fed. 
 Rep. 788 .... 94 
 
 United States v. Cisna (1835), 
 1 McLean, 254; 25 Fed. 
 Cas. 422 . . . .850 
 
 United States v. City of Mo- 
 line (1897), 82 Fed. Eep. 
 592 . , . . 182,811 
 
 United States v. Coal Dealers' 
 Ass'n of California (1898), 
 85 Fed. Rep. 253 . . 330 
 
Ixviii 
 
 TABLE OF CASES. 
 
 United States v. Craig 
 
 28 Fed. Rep. 795 103, 150, 304 
 
 United States v. Debs (1894), 
 (Union Trust Co. v. Atchi- 
 son, T. & S. F. E. Co.), 64 
 Fed. Eep. 734 . . . 335 
 
 United States v. Dewitt (1869), 
 
 9 Wall. 41 . . . 309 
 
 United States v. Duluth (1870), 
 
 1 Dill. 469 ; 35 Fed. Cas. 933 112 
 
 United States v. Dumplin 
 
 Island (1847), 1 Barb. 34 . 315 
 
 United States v. East Tennes- 
 see, V. & G. R. Co. (1882), 
 18 Fed. Rep. 643 . . 176 
 
 United States v. Eaton (1893), 
 144 U. S. 677; 13 S. Ct. 
 Rep. 764 . . . . 311 
 
 United States v. Elliott (1894), 
 63 Fed. Rep. 801; 4 Int. 
 Com. Rep. 798 309, 834, 335 
 
 United States v. Engeman 
 
 (1891), 45 Fed. Rep. 546 . 315 
 
 United States v. Fifty Cases 
 of Distilled Spirits (1897), 
 88 Fed. Rep. 1000 . 134, 313 
 
 United States y. Flournoy 
 Live-Stock & Real Estate 
 Co. (1895), 69 Fed. Rep. 
 886 . . . . 353,354 
 
 United States v. Flournoy 
 Live-Stock & Real Estate 
 Co. (1896), 71 Fed. Rep. 
 576 353 
 
 United States v. Forty-three 
 Gallons of Whisky, etc. 
 (1876), 93 U. S. 188 . 60, 345, 
 350, 351, 353 
 
 United States v. Forty-three 
 Gallons of Whisky, etc., 
 Lariviere & Grant, Cl'mts 
 (1874), 19 Int. Rev. Rec. 
 158; 35 Fed. Cas. 1155 . 349 
 
 United States v. The Frank 
 Sylvia (1888), 37 Fed. Rep. 
 155 104 
 
 United States v. Greenhut 
 
 (1892), 50 Fed. Rep. 469 . 32? 
 United States v. Holliday 
 
 (1865), 3 Wall. 407 60, 345, 346 
 353 
 United States v. Hopkins 
 
 (1897), 82 Fed. Rep. 529 331, 331, 
 333 
 United States v. Jellioo 
 
 Mountain Coal & Coke 
 
 Co. (1891), 46 Fed. Rep. 
 
 433; 13 L.R. A. 758; 3 Int. 
 
 Com. Rep. 636 . . . 330 
 United States v. Joint Traffic 
 
 Ass'n (1896), 76 Fed. Rep. 
 
 895 319 
 
 United States v. Jones (1883), 
 
 109U. S. 518;3S.Ct.Rep. 
 
 346 315 
 
 United States v, Kagama 
 
 (1886), 118 U. S. 375; 6 S. 
 
 Ct. Rep. 1109 343, 343, 346, 349 
 United States v. Keokuk & H. 
 
 Bridge Co. (1891), 45 Fed. 
 
 Rep. 178 . . 129,131,812 
 United States v. E. C. Knight 
 
 Co. (1894), 60 Fed. Rep. 
 
 934; 9 C. C. A. 297; 17 U. 
 
 S. App. 466; 45 Am. & 
 
 Eng. Corp. Cas. 454; 24 L. 
 
 R. A. 428 (Opinion of C. 
 
 C. in 60 Fed. Rep. 306) . 326 
 United States v. E. C. Knight 
 
 Co. (1895), 156 U. S. 1; 15 
 
 S. Ct. Rep. 249; 10 Am. 
 
 Rid. & Corp. Eep. 737 44, 55, 
 326 
 United States v. Knight (1893), 
 
 8 Int. Com. Rep. 801 . . 41 
 United States v. L. Cole at al. 
 
 (1858), 5 McLean, 513; 25 
 
 Fed. Cas. 493 . . ,101 
 United States v. La Compag- 
 
 nie Francaise Des Cables 
 
 Telegraphiques (1896), 77 
 
 Fed. Rep. 495 , . . 805 
 
TABLE OF OASES. 
 
 Ixix 
 
 United States v. Lawrence 
 
 Coombs (1838), 13 Pet. 73 101 
 United States v. Louisville & 
 
 N. E. Co. (1883), 18 Fed. 
 
 Rep. 480 . . . .175 
 United States v. L. & P. Canal 
 
 (1872), 1 Flip. 360; 36 Fed. 
 
 Cas. 1003; 4 Dill. 601 . 110 
 United States v. Marigold 
 
 (1850), 9 How. 560 . 13, 805 
 United States v. Martin (1883), 
 
 14 Fed. Rep. 817; 8 Sawy. 
 
 473 . . . . 345,348 
 United States v. Mil. & St. P. 
 
 R. R. Co. (1873), 5 Biss. 410; 
 
 36 Fed. Cas. 1363 111, 113, 311 
 United States v. MiL & St. P. 
 
 R R. Co. (1873), 5 Biss. 430; 
 
 36 Fed. Cas. 1365 111, 113, 311 
 United States v. Nelson (1886), 
 
 29 Fed. Rep. 303 . . 350 
 United States v. New Bedford 
 
 Bridge (1846), 1 Woodb. & 
 
 M. 401 ; 37 Fed. Cas. 91 116, 118, 
 119 
 United States v. North Bloom- 
 
 fleld Gravel Mining Co. 
 
 (1897), 81 Fed. Rep. 243 110, 113 
 United States v. One Hundred 
 
 and Thirty-two Packages 
 
 of Spirituous Liquors and 
 
 Wines (1896), 40 U. S. App. 
 
 333; 33 CCA. 238; 76 Fed. 
 
 Rep. 364 . . . .83 
 United States v. Oregon Ry. 
 
 & Nav. Co. (1883), 16 Fed. 
 
 Rep. 534; 9 Sawy. 61; 14 
 
 Am. & Eng. R. Cas. 33 110, 314 
 United States v. Ormsbee 
 
 (1896), 74 Fed. Rep. 307 . 311 
 United States v. Patterson et 
 
 al. (1898), 55 Fed. Rep. 605 333 
 United States v. Pittsburgh 
 
 & L. E. R Co. (1886), 26 
 
 Fed. Rep. 113 . . . Ill 
 
 United States v. R. R. Bridge 
 
 Co. (1855), 6 McLean, 517; 
 
 27 Fed. Cas. 686 . 113, 136 
 United States v. Realty Co. 
 
 (1896), (United States v. 
 
 Gay), 163 U. S. 427; 16 S. 
 
 Ct. Rep. 1131 . . .304 
 United States v. Rhodes (1866), 
 
 1 Abb. (U. S.) 38; 27 Fed. 
 
 Cas. 785 . . . 110,314 
 United States v. Rider (1893), 
 
 50 Fed. Rep. 406 111, 139, 813 
 United States v. Rio Grande 
 
 Dam & Irrigation Co. 
 
 (New Mex, 1898), 51 Pac. 
 
 Rep. 674 . . 99, 100, IIT 
 United States v. Rogers (1846), 
 
 4 How. 567 . . . 343 
 United States v. Rum River 
 
 & Mississippi Boom Co. et 
 
 aL(1879), 1 McCrary,397; 
 
 8 Fed. Rep. 548 . 110, 113 
 United States v. Seaboard Ry. 
 
 Co. (1897), 83 Fed. Rep. 563 94 
 United States v. Seveloff 
 
 (1872), 2 Sawy. 811; 37 Fed. 
 
 Cas. 1031 . . .350 
 
 United States v. Shaw Mux 
 
 (1878), 3 Sawy. 864; 37 
 
 Fed. Cas. 1049 . . 849 
 
 United States v. The Steam 
 
 Ferry Boat Wm. Pope 
 
 (1853), Newb. 256; 38 Fed. 
 
 Cas. 639 . . . 103, 159 
 United States v. The Steam- 
 boat Jas. Morrison (1846), 
 
 Newb. 341; 26 Fed. Cas. 
 
 579 . . . . 103, 159 
 United States v. Steamboat 
 
 "Seneca" (1862), 1 Am, 
 
 Law Reg. (N. S.) 381; 1 
 
 Biss. 871; 37 Fed. Cas. 
 
 1031 . , . ,103 
 
 United States v. Steamboat 
 
 " Sunswick " (1873), 6 Ben. 
 
Ixx 
 
 TABLE OF CASES. 
 
 112; 33 Fed. Cas. 434; 15 
 Int. Eev. Rec. 154 . 93, 104 
 
 United States v. Thomas 
 (1894), 151 U. S. 577; 14 S. 
 Ct. Rep. 436 . . . 349 
 
 United States v. Tobacco Fac- 
 tory (1871), 1 Dill. 364; 38 
 Fed. Cas. 195 . . . 250 
 
 United States v. Trans-Mis- 
 souri Freight Ass'n (1893), 
 58 Fed. Rep. 440; 51 Am. 
 & Eng. R. Cas. 458 . 319, 333 
 
 United States v. Trans-Mis- 
 souri Freight Ass'n (1893), 
 19 U. S. App. 36; 7 C. C. 
 A. 15; 58 Fed. Rep. 58; 24 
 L. R. A. 73; 56 Am. & 
 Eng. R. Cas. 6; 4 Int. Com. 
 Rep. 443 . . . . 819 
 
 United States v. Trans-Mis- 
 souri Freight Ass'n (1897), 
 166 U. S. 290; 17 S. Ct 
 Rep. 540; 7 Am. & Eng. 
 R. Cas. (N. S.) 388 319, 821, 332 
 
 United States v. Working- 
 men's Amalgamated 
 Council of New Orleans 
 (1893), 54 Fed. Rep. 994; 
 36 L. R. A. 158; 4 Int. 
 Com. Rep. 831 . . 323 
 
 United States v. Williams 
 
 (1897), 83 Fed. Rep. 997 . 304 
 
 United States v. Yellow Sun 
 (1870), 1 Dill. 271; 1 Abb. 
 (N. S.) 377 ; 27 Fed. Cas. 933 248 
 
 United States ex reL v. 
 Shanks et aL (1870), 15 
 Minn. 369 ... 341 
 
 United States ex reL Jones v. 
 Fanning (1844), 1 Morris 
 (Iowa), 348 . . 159,300 
 
 United States ex rel. Spink 
 
 (1884), 19 Fed. Rep. 631 . 142 
 
 United States Express Co. v. 
 Allen (1889), 39 Fed. Rep. 
 712 237 
 
 United States Express Co. v. 
 
 EUyson (1869), 28 Iowa, 370 259 
 United States Express Co. v. 
 
 Hemmingway (1889), 39 
 
 Fed. Rep. 60 . . . 275 
 Urton V. Sherlock (1881), 75 
 
 Mo. 247 . . . .193 
 Utley et al. v. Clark-Gardner 
 
 Mfg. Ca (1878), 4 Colo. 369 55 
 
 Validity of the South Carolina 
 Police Bill (1831), 2 Op. 
 Atty. Gen. 426 . . 193 
 
 Validity of the South Carolina 
 Police Bill (1834), 1 Op. 
 Atty. Gen. 659 . . 193 
 
 Van Brocklin v. State of Ten- 
 nessee (1886), 117 U. S. 151; 
 6 S. Ct. Rep. 670; 12 Am. 
 & Eng. Corp. Cas, 578 . 121 
 
 Van Buren v. Downing (1876), 
 
 41 Wis. 122 . . 228,280 
 
 Vance v. W. A. Vandercook 
 
 , Co. (1898), 170 U.S. 438; 18 
 
 S. Ct. Rep. 674 . . 81 
 
 Vanderbilt, Matter of (1819), 
 
 4 Johns. Ch. 57 . . 110 
 
 Vanderbilt v. Adams, Treas- 
 urer, etc. (1827), 7 Cow, 
 349 143 
 
 Vandercook Co. v. Vance 
 
 (1897), 80 Fed. Rep. 786 49, 81 
 
 Vanmeter, etc. v. Spurrier, 
 etc. (1893), 94 Ky. 22; 21 
 a W. Rep. 337 154, 155, 157 
 
 Van Vliet, In re (1890), 43 Fed. 
 
 Rep. 761; 10 L. E. A. 451 78 
 
 Veazie et aL v. Moor (1852), 14 
 
 How. 568 . . 30, 99, 114 
 
 Vegelahn v. Guntner (1896), 
 167 Mass. 92; 44 N.E. Rep. 
 1077; 57 Am. St. Rep. 443; 
 35 L: R. A. 722 . . 831 
 
 Vermont & Can. R. R. v. Cent. 
 Vt. R. R. Co. (1890), 63 
 Vt. 1; 21 AtL Rep. 363, 
 
TABLE OF CASES. 
 
 Ixxi 
 
 731; 46 Am. & Eng. R. 
 
 Cas. 646; 10 L. B. A. 562; 
 
 3 Int. Com. Eep. 488 199, 265, 
 266 
 Vessel Owners' Towing Co., In 
 
 re (1886), 26 Fed. Eep. 169 106 
 Vicksburg v. Tobin (1879), 100 
 
 U. S. 430 . . . . 144 
 Vines v. The State (1880), 67 
 
 Ala. 73 . . 150,228,280 
 Virden, Henry F., Appeal of 
 
 (1879), 13 Phila. 151; 86 
 
 Leg. Int. 136 . . . 142 
 Virden v. The Brig " Charles 
 
 A. Sparks" (1888), 13 W. 
 
 N. C. 300 . . . . 141 
 Voight V. Baltimore & O. S. 
 
 W. Ry. Co. (1897), 79 Fed, 
 
 Eep. 561 . . . . 168 
 Voight V. Wright (1891), 141 
 
 U. S. 62; 11 S. Ct. Rep. 
 
 855 . . . , 150,154 
 Von Steuben v. Central E. E. 
 
 Co. (1895), 4 Pa. Dist. Eep. 
 
 153 170 
 
 Wabash, St. Louis & Pac. Ey. 
 
 Co. V. Illinois (1886), 118 
 
 U. S. 557; 7 8. Ct. Eep. 4; 
 
 26 Am. & Eng. E. Cas. 1 28, 90, 
 273, 283, 284, 285 
 Wabash, St. Louis .& Pacific 
 
 E. Co. V. The People (1883), 
 
 105 111.236 . . .284 
 Walcott V. People (1868), 17 
 
 Mich. 68 . . , .263 
 Walker v. Keenan (1896), 73 
 
 Fed. Eep. 755; 19 C. C. A. 
 
 668; 34 U. S. App. 691 . 95 
 Wallamet Iron Bridge Co, v. 
 
 Hatch (1884), 19 Fed. Eep, 
 
 847; 9 Sawy, 643 . 118, 123 
 Walling V. Michigan (1885), 
 
 116 IT. S. 446; 6 S. Ct, Eep. 
 
 454; 18 Am. & Eng, Corp, 
 
 Cas. 383 . . . 28, 61, 138 
 
 Walton V. Westwood (1874), 
 
 73111,135 , . . 63 
 
 Ward V, Eace Horse (1896), 
 163 U. S. 504; 16 S. Ct, 
 Eep. 1076 . . .345 
 
 Ward, Elias, v. The State 
 (1869), 31 Md, 279; 1 Am. 
 Eep. 50 . . . .278 
 
 Ward V, State of Maryland 
 (1870), 12 WalL 418; 9 Am, 
 Law Eeg. (N. S.) 434 , 28, 39, 
 218, 328, 276, 278 
 
 Ware, In re (1893), 53 Fed, Eep, 
 
 783 . . . 56, 58, 68, 194 
 
 Ware v. Hamilton Brown 
 Shoe Co. (1890), 93 Ala, 
 145; 9 S. Eep, 186; 83 Am. 
 & Eng. Corp, Cas, 35 , 196 
 
 Waring et al. v, Clarke (1847), 
 
 5 How, 441 .. . 103 
 Waring v. The Mayor (1868), 
 
 8 Wall, 110 . . 85, 375 
 Wasserboehr v, Boulier (1892), 
 
 84 Me. 165; 24 Atl, Eep. 
 
 808; 80 Am. St. Eep. 844 . 85 
 Waterbury v, Egan (1893), 33 
 
 N. Y, Supp, 115; 3 Misc. 
 
 Eep. 355; 52 N. T. St. Eep. 
 
 421 194 
 
 Waterbury v. Newton (1888), 
 
 50 N. J. L. 534; 14 Atl. Eep. 
 
 604; 23 Am. & Eng, Corp. 
 
 Cas. 42; 2 Int. Com. Eep, 
 
 63 . . . . 72,195 
 Waterhouse v. Comer (1898), 
 
 55 Fed. Eep. 149; 53 Am, 
 
 6 Eng. E. Cas. 829; 19 L, 
 E. A, 403; 5 Int, Com. Eep, 
 
 564 335 
 
 Waters-Pierce Oil Co, v. State 
 
 (Tex. Civ. App,, 1898), 44 
 
 S. W, Eep, 936 . . 329 
 Watson, In re (1882), 15 Fed. 
 
 Eep. 511 . . . 228, 380 
 Waukegan Breakwater (1853), 
 
 6 Op. Atty. Gen. 172 . Ill 
 
Ixxii 
 
 TABLE OF CASES. 
 
 Weaver v. MoLellan (1871), 5 
 
 Ben. 79; 29 Fed. Cas. 488 140 
 
 "Weaver v. State (1892), 89 Ga. 
 
 639; 15 S. E. Eep. 840 . 279 
 
 Webb V. Dunn (1882), 18 Fla. 
 
 721 . . . . 143,325 
 
 Webber v. Virginia (1880), 103 
 
 U. S. 344 . 276, 377, 288 
 
 Webber's Case (1880), 83 Gratt. 
 
 898 276 
 
 Weber v. Harbor Commission- 
 ers (1873), 18 Wall. 57 . 135 
 
 Webster v. Bell (1895), 35 U. S. 
 App. 879; 15 C. C. A. 360; 
 68 Fed. Eep. 183 . . 271 
 
 Weil V. Calhoun (1885), 25 Fed. 
 
 Eep. 865 . . 150, 228, 376 
 
 Weld V. Chapman (1856), 2 
 
 lovi^a, 534 . . 159,160 
 
 Wells, Fargo & Co.'s Express 
 V. Crawford County 
 (1897), 63 Ark. 576; 40 S. 
 W. Eep. 710; 37 L. E. A. 
 871 259 
 
 Wells, Fargo & Co. v. North- 
 ern Pacific Ey. Co. (1884), 
 23 Fed. Eep. 469; 10 Sawy. 
 411 44 
 
 Welton V. State of Missouri 
 
 (1875), 91 U. S. 275 . 28, 48, 45, 
 65, 66, 85, 189, 238, 276, 278, 280 
 
 Western Paper Bag Co. v. 
 Johnson (Tex. Civ. App., 
 1896), 38 S. W. Eep. 364 84, 178, 
 196 
 
 Western Union Tel. Co. v. 
 Alabama State Board of 
 Assessment (1889), 132 U. 
 S. 473; 10 S. Ct. Eep. 161; 
 80 Am. & Eng. Corp. Cas. 
 583 . 46, 260, 266, 370, 378 
 
 Western Union Tel. Co. v. At- 
 lantic & P. Tel, Co. (1869), 
 5 Nev. 103 .. . 46 
 
 Western Union Tel. Co. v. 
 The Attorney-General of 
 
 the Commonwealth of 
 Massachusetts (1888), 125 
 U. S. 580; 8 S. Ct. Eep. 
 961; 21 Am. & Eng. Corp. 
 Cas. 13 . 238, 240, 345, 375 
 
 Western Union Tel. Co. v. 
 Bates (1893), 93 Ga. 353; 30 
 S. E. Eep. 689 . . 178, 181 
 
 Western Union Tel. Co. v. 
 Bright (1894), 90 Va. 778; 
 20 S. E. Eep. 146 . 178, 181 
 
 Western Union Tel. Co. v. 
 Burgess (Tex. Civ. App., 
 1897), 48 S. W. Eep. 1033 167, 
 169 
 
 Western Union Tel. Co. v. 
 Commonwealth (1885), 110 
 Pa. St. 405; 30 Atl. Eep. 
 730 264 
 
 Western Union Tel. Co. v. 
 City Council of Charles- 
 ton (1893), 56 Fed. Eep. 
 419 . . . . 287,249 
 
 Western Union Tel. Co. v. 
 City of New York (1889), 
 38 Fed. Eep. 553 . . 180 
 
 Western Union Tel. Co. v. 
 City of Eiohmond (1875), 
 26 Gratt 1 . . 248, 268 
 
 Western Union Tel. Co. v. 
 Ellyson (1869), 28 Iowa, 
 380 259 
 
 Western Union Tel. Co. v. 
 Eubank (Ky., 1897), 38 
 S. W. Eep. 1068; 36 L. E. 
 A. 711 . . . . 167 
 
 Western Union TeL Co. v. 
 
 Fenton (1875), 53 Ind. 1 177, 181 
 
 Western Union TeL Co. v. 
 Ferris (1885), 103 Ind. 91; 
 3 N. E. Eep. 240; 1 West. 
 Eep. 211 . . . .181 
 
 Western Union TeL Co. v. 
 City of Fremont (1894), 
 89 Neb. 692; 58 N.W. Eep. 
 415; 48 Neb. 499; 61 N.W, 
 
TABLE OF OASES, 
 
 Ixxiii 
 
 Eep. 724; 44 Am. & Eng. 
 
 Corp. Cas. 470; 26 L. R. A. 
 
 698, 706; 5 Int. Com. Rep. 
 
 46 . . . 237,249,274 
 Western Union TeL Co. v. 
 
 Hamilton (1875), 50 Ind. 
 
 181 181 
 
 "Western Union Tel. Co. v. 
 
 Howell (1894), 95 Ga. 194; 
 
 22 S. E. Eep. 286; 51 Am. 
 St. Rep. 68; 30 L. E. A. 
 158; 5 Int. Com. Rep. 516 181, 
 
 182 
 Western Union Tel. Co. v. 
 
 James (1893), 90 Ga. 354; 
 
 16 S. E. Eep. 83 178, 181, 190 
 Western Union Tel. Co. v. 
 
 James (1896), 163 U. S. 
 
 650; 16 S. Ct. Rep. 934; 4 
 
 Am. & Eng. Corp. Cas. 
 
 (N. S.) 77 . . . 181 
 
 Western Union Tel. Co. v. 
 
 Lark (1895), 95 Ga. 806; 
 
 23 a E. Rep. 118 . 178, 181 
 Western Union Tel. Co. v. 
 
 Lieb et aL (1875), 76 III 
 172 190 
 
 Western Union Tel. Co. v. 
 Mayer, Treas. (1876), 28 
 Ohio St. 531 . . .264 
 
 Western Union Tel. Co. v. 
 Mellan (Tenn., 1898), 45 
 S.W. Eep. 443 . . 182 
 
 Western Union Tel. Co. v. 
 Meredith (1884), 95 Ind. 
 93; 8 Am. & Eng. Corp, 
 Cas. 54 . . . .181 
 
 Western Union Tel. Co. v. 
 Michelson (1894), 94 Ga. 
 436; 21 S. E. Eep. 169 . 181 
 
 Western Union Tel. Co. v. Mis- 
 sissippi Railroad Commis- 
 sioners (1896), 74 Miss. 80; 
 21S. Eep. 15 . , .274 
 
 Western Union Tel. Co. v. 
 Norman (1896), 77 Fed. 
 Rep. 13 . . . .248 
 
 Western Union Tel. Co. v, 
 Pendleton (1884), 95 Ind. 
 12; 8 Am. & Eng. Corp. 
 Cas. 56 . . . .181 
 
 Western Union Tel. Co. v. 
 Pendleton (1887), 132 U. S. 
 347; 7 S. Ct. Rep. 1126; 18 
 Am. & Eng. Corp. Cas. 18; 
 1 Int. Com. Rep. 306 38, 46, 181 
 
 Western Union Tel. Co. t. 
 Pennsylvania (1888), 138 
 U. S. 39; 9 S. Ct. Rep. 6; 
 
 25 Am. & Eng. Corp. Cas, 
 577; 2 Int. Com. Rep. 241 233, 
 
 249 
 Western Union Tel. Co. v. 
 
 Poe (1895), 69 Fed. Rep. 557 240 
 Western Union Tel. Co. v. 
 
 Poe (1894), 64 Fed. Rep. 9; 
 
 48 Am. & Eng. Corp. Cas. 
 
 257 248 
 
 Western Union Tel. Co. v. 
 
 Poe (1894), 61 Fed. Rep. 
 
 449 . . 247, 248, 256, 259 
 Western Union Tel. Co. v. 
 
 Powell (1897), 94 Va. 268; 
 
 26 S. E. Rep. 828 . . 166 
 Western Union Tel. Co. v. 
 
 State (1884), 62 Tex. 630; 
 
 13 Am. & Eng. Corp. Cas. 
 
 396 . . . . 249,266 
 Western Union Tel. Co. v. 
 
 State (1881), 55 Tex. 814 249 
 Western Union Tel. Co. v. 
 
 State Board, etc. (1885), 80 
 
 Ala. 273; 60 Am. Rep. 99 264 
 Western Union Tel. Co. v. 
 
 Taggart (1896), 163 U.S.1; 
 
 16 S. Ct. Rep. 1054; 4 Am. 
 
 & Eng. Corp. Cas. (N. S.) 
 
 412 . . . . 240,348 
 Western Union Tel. Co. v. 
 
 Taggart, Auditor, et al. 
 
 (1895), 141 Ind. 381; 40 N. 
 
 E. Rep. 1051; 3 Am. & 
 
 Eng. Corp. Cas. (N. S.) 
 
 187 . . . . 240,248 
 
Ixxiv 
 
 TABLE 01" CASES, 
 
 "Western Union Tel. Co. v. 
 
 Tyler(1893),90Va. 397;18 ' 
 
 S. E. Eep. 280; 44 Am. St. 
 
 Rep. 910 ; 4 L. E. A. 481 46, 178, 
 181 
 Weston et al. v. The City 
 
 Council of Charleston 
 
 (1839), 3 Pet. 449 . . 199 
 Wethersfleld & Glastonbury 
 
 V. Humphrey et al. (1850), 
 
 20 Conn. 318 . . .100 
 Wetzel V. United States (1890), 
 
 35 Ct. of CI. Rep. 277 . 314 
 Wharf Case, The (1831), 3 
 
 Bland's Oh. (Md.) 361 . 150 
 Whistler, The (1883), 13 Fed. 
 
 Eep. 295; 8 Sawy. 283 . 143 
 White, In re (1890), 43 Fed. 
 
 Rep. 913; 11 L. R. A. 384; 
 
 3 Int. Com. Rep. 531 375, 378 
 White V. Michigan Central R. 
 
 R. Co. (1889), 3 Int. Com. 
 
 Eep. 641; 3 Int. Com. 
 
 Comm. Rep. 281 . . 61 
 Whitehead v. Wilmington & 
 
 Weld. E. R. Co. (1883), 87 
 
 N. C. 355; 9 Am. & Eng. 
 
 R. Cas. 168 .. . 183 
 White's Bank v. Smith (1868), 
 
 7 Wall. 646 . . 101,108 
 Wiggins Ferry Co. v. City of 
 
 East St. Louis (1883), 103 
 
 III. 560 . . . . 158 
 Wiggins Ferry Co. v. East St. 
 
 Louis (1882), 107 U. S. 365; 
 
 3S. Ct.Rep.357; 3 Am. & 
 
 Eng. Corp. Cas. 483 158,336,397 
 Wigton V. Pennsylvania R. R, 
 
 Co. (1890), 8 Pa. Co. Ct. 
 
 Rep. 191 . . . . 294 
 Wilcox Cordage & Supply Co. 
 
 V. Hosier (Mich., 1897), 73 
 
 N. W. Eep. 117 . . 378 
 Willamette Iron Bridge Co. v. 
 
 Hatch (1888), 135 U.S.I; 
 
 8 S. Ct. Rep. 811 117, 118, 119, 
 
 120, 131, 133 
 
 William Jarvis (1859), 1 
 
 Sprague, 485; 39 Fed. Cas. 
 
 1308 . . 37, 193, 196 
 
 William Law, The (1882), 14 
 
 Fed. Rep. 792 . . . 141 
 Williams et al. v. Beardsley 
 
 et aL (1851), 3 Ind. 591 . 115, 
 116, 118, 131, 135 
 Willson et al. v. Blaclc Bird 
 
 Creek Marsh Co. (1839), 3 
 
 Pet. 345 19, 113, 115, 116, 119 
 Wilson, In re (1890), 19 Dlst. 
 
 Col. 341; 13 L. R. A. 634; 
 
 19 Wash. L. Rep. 337 83, 380 
 Wilson, Case of The (1830), 1 
 
 Brock. 433; 30 Fed. Cas. 
 
 339 37 
 
 Wilson V. K. C, St. Jo. & C. B. 
 
 R. R. Co. (1875), 60 Mo. 184 147, 
 170, 194 
 Wilson V. McNamee (1880), 103 
 
 U. S. 573 . . . 141, 143 
 Wilson V. Mills (1871), 10 Abb. 
 
 Pr. (N. S.) 143; 4 Daly, 549 143 
 Wind & Co. V. Her & Co. et al. 
 
 (1895), 93 Iowa, 316; 61 N. 
 
 W. Eep. 1001; 27 L. E. A. 
 
 219; 7 Int. Com. Eep. 18 69, 85 
 Winifrede Coal Co. v. Central 
 
 Ey. & Bridge Co. (1890), 
 
 34 Cin. Wkly. Law Bui. 
 
 173 . . . . Ill, 136 
 Winona & St. Peter Ry. Co. v. 
 
 Blake (1876), 94 U. S. 180 385 
 Wisconsin v. Duluth (1877), 
 
 96U. S. 379 . . .109 
 Wisconsin River Improve- 
 ment Co. V. Manson (1877), 
 
 43 Wis. 355; 38 Am. Eep. 
 
 543 . . . . 114, 125 
 Withers v. Buckley et aL 
 
 (1857), 20 How. 84 . 113, 133 
 Wolters, Ex parte (1896), 74 
 
 Fed. Eep. 859 . . . 194 
 Wong Yung Quy No. 8, In re 
 
 (1880), 6 Sawy. 442; 2 Fed. 
 
 Eep. 624 . . . .57 
 
TABLE OF OASES. 
 
 Ixxv 
 
 Wood V. M., K. & T. Ry. Co. 
 
 (1873), 11 Kan. 323 . . 853 
 •Wood V. Stockwell (1867), 55 
 
 Me. 76 . . . . 103 
 Woodman v, Kilbourn Mfg. 
 
 Co. (1867), 1 Abb. (U. S.) 
 
 158 . . 113, 115, 122, 123 
 Woodruff V. N. Bloomfleld G. 
 
 M. Co. (1884), 18 Fed. Rep. 
 
 753; 9 Sawy. 441 . . 133 
 Woodruff V. Parham (1868), 8 
 
 Wall. 133 31, 67. 153, 154, 205, 
 236, 280 
 Woodruff & Parker v. Par- 
 ham (1867), 41 Ala. 334 . 67 
 Worcester v. The State of 
 
 Georgia (1832), 6 Pet. 515 341, 
 342, 346 
 Works V. Junction R R. Co. 
 
 (1853), 5 McLean, 425; 30 
 
 Fed. Cas. 636 109, 113, 118, 136 
 Worsley v. Second Municipal- 
 
 ity of New Orleans (1844), 
 
 9 Rob. (La.) 324; 41 Am. 
 
 Dec. 333 . . . .144 
 Worthen, In re (1891), 58 Fed. 
 
 Rep. 467; 4 Int. Com. Rep. 
 
 484 194 
 
 Wright, The (1869), Deady, 591 ; 
 
 10 Fed. Cas. 224 . . 141 
 Wright V. Howe (1893), 24 S. 
 
 W. Rep. 314 . . 163, 167 
 Wrought Iron Co. v. Johnson 
 
 (1890), 84 Ga. 754; 11 S. E. 
 
 Rep.238;8L. R. A. 273;3 
 
 Int. Com. Rep. 146 . 275, 278 
 Wynhamer v. The People 
 
 (1855), 20 Barb. 567 84, 85, 805 
 
 Tanders, In re Application 
 (1895), 3 Ohio Dec. 126; 5 
 Int. Com, Rep. 295 . . 194 
 
 Tearteau v. Bacon's Estate 
 (1892), 65 Vt 516; 27 AtL 
 Rep. 198 . . . .69 
 
 Teazel v. Alexander et aL 
 
 (1871), 58 IlL 254 . 147, 171 
 
 Yesler v. Washington Harbor 
 Line Commissioners 
 (1892), 146 U. S. 646; 13 S. 
 Ct. Rep, 190 ... 144 
 
 Zimmerman v. The Union 
 Canal Co. (1841), 1 Watts 
 & S. 846 . . . . 136 
 
THE COMMERCE CLAUSE 
 
 OP THE 
 
 FEDERAL CONSTITUTION. 
 
 CHAPTER I. 
 
 HISTOET OF THE COMMERCE CLAUSE. 
 
 Tte commerce clause of the Federal Constitution, presents 
 the remarkable instance of a national power which was oom- 
 parativelj unimportant for eighty years, and which in the 
 last thirty years has been so developed that it is now, in its 
 nationaliang tendency, perhaps the most important and con- 
 spicuous power possessed by the Federal government. 
 
 The fact is more remarkable because the deficiency in the 
 Articles of Confederation most felt was the lack of this very 
 po^er,! and because the Convention which framed the Fed- 
 eral Constitution was immediately brought about by the rec- 
 ognized necessity of an uniform system in the commercial 
 regulations of the several States. 
 
 The result of that Convention, so far as regards uniformity 
 of general commercial regulations, was expressed in twenty- 
 one words: " The Congress shall have power . . . to reg- 
 ulate commerce with foreign nations, and among the several 
 States, and with the Indian tribes." 
 
 That is all save what may be found by implication. 
 
 At this distance of time, and in the changed conditions of 
 modern trade, it is difficult to determine satisfactorily what 
 was intended by those who framed this provision, and the ap- 
 
 iFederalist, No. XXIL 
 
a HISTOKY OF THE COMMEEOE OLAFSE. 
 
 parent difSiculty increases upon consideration of the early- 
 history of the clause. 
 
 At the time of the adoption of the Constitution, naviga- 
 tion afforded the only means of conducting commerce on a 
 large scale. It seems, therefore, that it must have been in- 
 tended by the commerce clause to give Congress control of 
 navigation when carried on among the States, and yet as late 
 as 1824: this appears to have been doubted, and was settled 
 in that year in the case of OiVbona v. Ogden} 
 
 Aside from navigation, commerce among the States was, 
 in 1787, conducted by coaches and wagons, and it appears 
 to have been considered that the control of vehicles engaged 
 in this commerce did not belong to the Federal government.^ 
 
 The question naturally arises, therefore, what the Conven- 
 tion could have contemplated, if it did not intend by this 
 clause to give the Federal government control of transporta- 
 tion either by land or water. 
 
 Purpose of the Commerce Clause. — The journals of the 
 Convention and the public discussions of the period offer no 
 conclusive answer to this question ; but it appears that under 
 a form of expression sufficiently general to give Congress 
 power at all times to prevent burdensome, conflicting or dis- 
 criminating State legislation, the Convention had promi- 
 nently in mind the regulation of foreign commerce by the 
 passage of a navigation act and the imposition of a tariff; 
 while, so far as concerned interstate commerce, nothing more 
 was immediately intended than to enable Congress to pre- 
 vent the imposition of duties by particular States upon arti- 
 cles imported from or through other States.' 
 
 Interstate commerce in the eighteenth century was simple 
 in its relations. The business of each State was its own. 
 Great enterprises owned in one State engaged in commerce 
 
 1 9 Wieaton, 1. ^ Views of President Monroe upon 
 
 2 Perrin v. Sikes, 1 Day (Conn.), Internal ImproTements, inclosed in 
 
 p. 19; McMaster's History of Amer- Message to Congress, May 4, 1833. 
 
 ican People, voL II, p. 60. 
 
HISTORY OF THE COMMEEOE CLAUSE. 6 
 
 in otiiers, and subject to their jurisdiction, were few and 
 comparatively unimportant. The imposition of a tariff at 
 State lines was in ITSY the easiest way in which one State 
 could tax the traffic or produce of another.^ 
 
 In the case of foreign commerce the situation was differ- 
 ent. "When the Constitution was framed, one of the great 
 grievances of the country was in the English Navigation 
 Act, by which American vessels were excluded from the 
 West India trade, and in tradiag directly with Great Britain 
 were permitted to carry only the products of the State of 
 which their owners were citizens. On the other hand, the 
 United States, under the Confederation, was unable to pro- 
 tect its own trade or to impose any restrictions upon foreign 
 vessels tradiag ia American ports. It was necessary that 
 power be given to the Federal government to pass a naviga- 
 tion act for the protection of American shipping and to build 
 a navy.^ 
 
 It was necessary, too, for the maintenance of government, 
 that a national revenue be raised, and it was felt that customs 
 duties offered one of the best means of providing such a rev- 
 enue. The foreign trade belonged to the nation, not to in- 
 dividual States, and revenue arising from it should be used 
 for general purposes, and not alone for the benefit of the State 
 in whose harbor goods were landed. 
 
 These were the difficulties which pressed upon the States 
 under the Articles of Confederation, and which the Consti- 
 tution was to remedy.' 
 
 1 Federalist, No. XLH tilation, prior to the adoption of the 
 
 2 Federalist, No. XL Constitution, see Bancroft's History 
 
 3 Proceedings of Congress as to of the Constitution of the United 
 Regulation of Commerce, April 30, States, voL 1, pp. 146, 184, 192-200, 
 1784; Resolution to Empower Con- 306, 349-261, 336-343; yoL 3, pp. 74, 
 gross to Regulate Trade, Virginia 75, 162; Curtis' Constitutional His- 
 House of Delegates, Nov. 80, 1785, tory of the United States (1897), 
 4 Journals of Congress (Wash., 1823), voL 1, pp. 186, 284, 828, 494 ; Fisher's 
 631. Evolution of the Constitution of the 
 
 For the history and causes of at- United States, pp. 333, 225, 238, 241 ; 
 tempts at unity of commercial reg- Fiske's American Revolution, voL 1, 
 
4 HISTORY OF THE OOMMEECE CLAUSE. 
 
 Proceedings of the Constitutional Convention. — The re- 
 corded history of the commerce clause before the Constitu- 
 tional Convention is brief. Its origin is found in the sixth 
 resolution, submitted to the Convention by Edmund Kan- 
 dolph on the 29th day of May, 1Y87. This resolution, out- 
 lining the commercial powers which should belong to the 
 Federal government, stated: 
 
 " That the national legislature ought to be empowered to 
 enjoy the legislative right vested in Congress by the Confed- 
 eration; and, moreover, to legislate in all cases to which the 
 separate States are incompetent, or in which the harmony of 
 the United States may be interrupted by the exercise of in- 
 dividual legislation." ^ 
 
 This resolution, while necessarily vague except as to its 
 purpose, was in that respect entirely explicit. It was intended 
 that Congress should, under the new government, have all the 
 powers which it had under the old, and, in addition thereto, 
 such further powers as were necessary to enable it to prevent 
 a continuation of the evils experienced under the Confedera- 
 tion. 
 
 The commercial powers vested in Congress by the Articles 
 of Confederation included the sole and exclusive right and 
 power of regulating the alloy and value of coin struck by 
 
 pp. 7, 12; Madison's Works, voL 1, British King and Parliament over 
 
 pp. 301, S02; McMaster's History of foreign commerce of the colonies, 
 
 the People of the United States, see Bancroft's History of the United 
 
 voL 1, pp. 306,207; Parton's Lif e of States, voL 1, pp. 146, 148; voL 2, 
 
 Benjamin Franklin, voL 1, pp. 337, pp. 73, 80-85; Burke's Speech on 
 
 339; Preston's Docxmients Illustra- American Taxation; Green's His- 
 
 tive of American History, pp. 146, tory of the English People, toL 4, 
 
 147, 170, 179, 192, 196, 199, 204; Von pp. 198, 300, 219, 228, 239, 350-354; 
 
 Hoist's Constitutional History of the Preston's Documents Illustrative 
 
 United States, translated by Lalor of American History, pp. 188, 192; 
 
 & Mason, voL 1, p. 47; Articles of Woodburn's The Causes of the 
 
 Confederation, arts. 4, 6, 9; Feder- AmerioanEevolution; voL 10, Johns 
 
 alist, edited by J. C. Hamilton, His- Hopkins University Studies,' 557. 
 
 torical Notice, p. 46, Introduction, lEUiott's Debates (Wash,, 1836), 
 
 pp. 8, 10, 48, Nos. 4, 7, 11, 23, 42. On voL 1, p. 144 
 the history of the control by the 
 
HISTOET OF THE COMMEECE OLAXTSE. O 
 
 their own authority, or by that of the respective States; of 
 fixing the standard of weights and measures throughout the 
 United States ^ of regulating the trade and managing all af- 
 fairs with the Indians not members of any of the States, pro- 
 vided, however, that the legislative right of a State within 
 its own limits should not be infringed or violated; and lastly, 
 of establishing and regulating post-oflB.ces from one State to 
 another throughout the United States, and exacting such 
 postage on papers passing through the same as should be 
 requisite to pay the expenses of the office.' 
 
 These powers, then, were all to belong to Congress under 
 the Constitution. 
 
 The Articles of Confederation further provided that the 
 people of each State should have free ingress and regress to 
 and from any other State, and should enjoy therein all the 
 privileges of trade and commierce, subject to the same duties, 
 impositions and restrictions as the inhabitants thereof re- 
 spectively, provided that such restrictions should not extend 
 so far as to prevent the removal of property imported into 
 any State to any other State of which the owner was an in- 
 habitant.^ States were prohibited also from laying imposts 
 or duties which should interfere with any stipulation in trea- 
 ties entered into by the United States with any king, prince 
 or state in pursuance of treaties which had been already 
 proposed by Congress to the courts of France and Spain.' 
 
 The provisions last referred to and contained in the fourth 
 and sixth of the Articles of Confederation vested no rights 
 in Congress and therefore were not strictly within the scope 
 of Eandolph's resolution. 
 
 That part of the sixth article which has been quoted is 
 represented by a separate clause in the Constitution. The 
 provision quoted from the fourth article, however, found no 
 place in the Constitution except such as has been given to it 
 by necessary implication.* Taking the resolution as it reads, 
 
 1 Article IX «Crandall v. Nevada, 6 Wall 35. 
 
 2 Article IV. See post, pp. 37, 38, 217. 
 
 3 Article VL 
 
6 HISTOET OK THE COMMEECE CLAUSE. 
 
 it must have contemplated giving to Congress general power 
 to regulate interstate and foreign commerce, for it was sep- 
 arate commerciallegislation of the States and the want of a 
 general power over the subject by the Federal government 
 which threatened the harmony of the United States under 
 the Confederation. 
 
 These were the evils which the Convention met to rem- 
 edy, and the resolution adopted proposed to give to Con- 
 gress the most general and unlimited power over the whole 
 subject. The development of the existing Federal power 
 stated in the Constitution from the outline contained in 
 Eandolph's resolution is, therefore, in. form, a history of suc- 
 cessive limitations. 
 
 The subject upon which the debates of the Convention 
 principally turned, in the consideration of this resolution, 
 were Federal taxation of exports, control of the slave trade, 
 and the passage of a navigation act. 
 
 From the standpoiut of the Northern States, Federal con- 
 trol of the slave trade was an indispensable necessity. The 
 first great compromise of the Constitution, the inclusion of 
 slaves in estimatiug population as a basis of representation 
 in the government, placed those States where slaves were 
 few. in number at an immediate disadvantage, and required 
 for their future protection that some effective check should be 
 placed upon the increase of slave population by importation. 
 
 Furthermore, the shipping taterests of Northern States 
 needed the protection of a navigation act, and the desire for 
 this protection was one of their principal tuducements to 
 seek an amendment of the Articles of Confederation and a 
 strengthening of the Federal government. 
 
 On the other hand, the Southern States needed slaves, 
 and in North Carolina, South Carolina and Georgia the slave 
 trade was not prohibited; the Southern States had little in- 
 terest in shipping, but were dependent upon their exports, 
 and were more concerned in procuring cheap transportation, 
 than in the nationality of the vessel by which transporta- 
 tion was made. A tax upon exports was therefore out of 
 
HISTOET OF THE COMMEKOE CLAUSE, 7 
 
 the question, and a navigation act should require a two- 
 thirds vote, lest, as Mason said, " a few rich merchants in 
 New York, Philadelphia or Boston might by that means 
 monopolize the staples of the Southern States." ^ 
 
 In the final solution of these difficulties special clauses 
 were inserted in the Constitution exempting exports from 
 taxation and preventing abolition of the slave trade by Con- 
 gress prior to the year 1808. 
 
 The struggle over the question of the majority necessary 
 to the passage of a navigation act concerned, however, the 
 commerce clause alone. 
 
 In the draft of Constitution submitted to the Convention 
 on May 29, 1787, and said to have been proposed by Charles 
 Pinokney,' appears the first outline of the commerce clause 
 as it now stands. In this draft, among grants of power to 
 Congress to raise revenue, to coin money, to establish post- 
 offices, post and military roads, and other grants upon related 
 subjects, appears a grant of power in general terms " to regu- 
 late commerce with aU nations and among the several States." 
 The powers of Congress were, however, to be subject to the 
 limitation that " all laws regulating commerce shaU require 
 the assent of two-thirds of the members present in each 
 House." ' 
 
 On the 26th of July the Convention referred to the Com- 
 mittee of Detail the several drafts which had been before it, 
 together with the resolutions embodying the results of their 
 deliberations, and on the 6th of August this committee re- 
 ported a draft of a Constitution which contained the general 
 grant of power to Congress " to regulate commerce with for- 
 eign nations and among the several States," but altered the 
 limitation upon this power so that " No navigation act shall 
 be passed without the assent of two-thirds of the members 
 present in each House."* 
 
 1 Bancroft, voL VI, p. 364 » Elliott's Debates, voL I, p. 148. 
 
 2 Elliott's Debates, voL I, p. 147. * Elliott's Debates, voL I, pp. 324, 
 Bancroft, voL VI, p. 315, says that 330. 
 
 no copy of Pinckney's plan was pre- 
 served and no part used. 
 
8 HISTOET OF THE COMMEECB CLAUSE. 
 
 The change of -wording shows that the committee con- 
 sidered other regulations of commerce beside a navigation 
 act, to be within the scope of the clause, but nothing in the 
 record of the Convention indicates what the views of the 
 committee were on this phase of the subject. 
 
 The important acts of commercial regulation which were 
 discussed, either before or after the meeting of the Conven- 
 tion, were the passage of a navigation act and the imposition 
 of a tartfif,^ and it is probable that the only regulations which 
 the committee had in view, beside these, were of a purely local 
 character, not directly affecting transportation. 
 
 The question of revenue being disposed of by separate pro- 
 visions of the Constitution, the subject of a navig'ation act 
 was probably considered to cover the greater part of the field 
 of commercial regulation, so far as concerned matters of na- 
 tional interest. 
 
 It was in the debate upon the report of this committee 
 that the questions of taxation of exports, regulation of the 
 slave trade, and passage of a navigation act Came before the 
 Convention. On the 21st of August a resolution was adopted 
 exempting exports from taxation, and on the next day the 
 other matters in controversy were referred to a Grand Com- 
 mittee consisting of one member from each State,'* and the 
 report of this committee, leaving the control of navigation 
 with a majority of Congress, and giving the Federal govern- 
 ment power to prohibit the slave trade after the year 1808, 
 forms the second great compromise of the Constitution. 
 
 In the course of the debate upon the extent of the com- 
 mercial power to be given the Federal government, many 
 grants were discussed aside from the powers of regulation 
 and taxation. 
 
 1 Proceedings of Congress Con- Trade, Virginia House of Delegates, 
 
 cemingDuties,Feb. 3, 1781; 3 Jour- Nov. 80, 1785. See 4 Jouriials of 
 
 nals of Cong. 573,573; Proceedings Cong. 631, 
 
 of Congress as to Regulation of ^ Curtis' Constitutional History of 
 
 Commerce, April 30, 1784; 4 Jour- the United States, toL I, p. 508; 
 
 nals of Cong. 393, 393; Resolution EUiott's Debates (Wash., 1836), voL 
 
 to Empower Congress to Regulate V, p. 460; voL I, p. 356. 
 
HISTOKT OF THE OOMMEKOE OLAITSE. 9 
 
 On the 18th of August it was proposed to give Congress 
 power to grant charters of incorporation in cases where the 
 public good may require them, and the authority of a single 
 State may be incompetent ; to regulate stages on the post- 
 roads; to regulate affairs with the Indians; and to establish 
 institutions for the promotion of agriculture, commerce, trade 
 and manufactures. On the lith of September a motion was 
 made by Franklin that Congress be given power " to provide 
 for cutting canals." Such a power, "Wilson said, was neces- 
 sary in order to prevent a single State from obstructing the 
 general welfare. The motion was lost on the ground that 
 the expense thereby incurred would be a general burden, while 
 the benefit would be local.^ 
 
 The brief outline of proceedings given above, indicates that 
 in the course of its debates, the Convention had under con- 
 sideration extensive grants of commercial power; that as 
 the session neared its close it was proposed to grant powers 
 which would have conferred the authority to make internal 
 improvements, the right to chatter a bank, and power over 
 many other subjects which have been prominent in consti- 
 tutional history. 
 
 All motions to make these grants in express terms were 
 lost, so that the commerce clause was finally adopted in 
 substantially the form in which it was first drawn, the Lim- 
 itation upon the power of a majority of Congress being re- 
 moved, and the words " and with the Indian tribes " being 
 added. 
 
 Even in this brief form, however, the clause was in broad 
 terms and conveyed a great power. Monroe said that such 
 a grant of power to Congress involved " a radical change in 
 the whole system of our government." ^ 
 
 The Place in the Constitution Occupied hy tlie Clause. — 
 At the same time it is probable that only one side of the 
 case came conspicuously into view. The creation of a Fed- 
 
 1 Bancroft, vol. VI, pp. 360, 361. ^ Bancroft's Histoty of the United 
 
 States, voL VI, p. 143. 
 
10 HISTOET OF THE COMMBEOE CLAUSE. 
 
 eral jurisdiction to make unif orm commercial regulation was 
 accepted as a remedy for then existing troubles, without full 
 comprehension of consequent limitations upon powers of the 
 States. 
 
 Perhaps this appears in some degree from the position 
 which the commerce clause occupies in the Constitution. 
 
 Constitutional provisions upon this general subject are nu- 
 merous. The most prominent grants of commercial power 
 to the government are: 
 
 1st. The power to coin money. , 
 
 2d. The power to establish uniform laws of bankruptcy. 
 
 3d. The power to establish post offices and post roads. 
 
 4:th. The power to regulate weights and measures. 
 
 5th. The admiralty jurisdiction. 
 
 6th. The control of patents and copyrights. 
 
 Yth. The commercial power involved in taxation. 
 
 This last seems to be expressly recognized by the clause 
 which forbids the Federal government to give a preference 
 to the ports of one State over those of another, by any regu- 
 lation of commerce or revenue. 
 
 Upon the States are imposed certain express prohibitions, 
 such as those forbidding the coinage of money and the pas- 
 sage of laws impairing the obligations of contracts, or laying 
 duties of tonnage, or taxation of exports or imports; and 
 these prohibitions increase the effectiveness and importance 
 of the Federal powers. 
 
 Is the Federal Commercial Power Exclusive? — Finally, as 
 a general and comprehensive provision, including ground to 
 some degree covered by each of the foregoing provisions, 
 and extending indefinitely beyond, we find the general com- 
 merce clause. 
 
 As will be seen, most of the foregoing powers granted to 
 Congress and not expressly prohibited to the States are 
 powers which it is now established, by a long course of de- 
 cisions, belong concurrently to the States and to the Federal 
 government. AU these powers, then, save as they were ac- 
 
HISTOEY OF THE COMMEECB CLAUSE. 11 
 
 companied by express prohibitions to the States, appeared 
 rather as strength given to Congress, than as limitations 
 upon the autonomy of the State. True, the power over 
 commerce among the States was granted in the same terms 
 with the power over foreign commerce, and, taken literally, 
 might be applied to the same extent, and yet it appears to 
 have been understood that the two powers were of different 
 nature ; that the power to regulate foreign commerce was 
 alone necessarily national in character, while the power to 
 regulate commerce among the States grew out of the abuses 
 of the importing States in taxing the non-importing, and was 
 intended to be a remedial power given to the Federal govern- 
 ment to prevent injustice and commercial war among the 
 States.' 
 
 It is remarkable, however, that so important a clause 
 should be so briefly expressed, and leave so much to future 
 determination. 
 
 By the Articles of Confederation, Congress had been given 
 the "sole and exclusive right and power" of regulating 
 trade with the Indians,^ and it had been proposed in the 
 Convention that these words should be retained in the Con- 
 stitution, so that aU the powers granted to the Federal gov- 
 ernment by the commerce clause should be in express terms 
 " sole and exclusive." The motion was lost by a vote of six 
 States to five,' and the omitted words became doubly con- 
 spicuous in their absence. 
 
 The significance of this omission might perhaps receive 
 additional force from consideration of the apparent care 
 with which the authors of the Constitution had put into 
 express terms the restraints upon State authority where 
 restraint seemed necessary. 
 
 Mr. Chief Justice Taney gave utterance to this view in 
 
 1 Speech of Senator Morgan in 2 Article IX. 
 Senate, May 38, 1890; 31 Cong. Eec. » Story on the Constitution (5th 
 (part 6), pp. 5369, 5371, 5373. But ed.), sec. 1067, n, 2. 
 see Letter of Madison to Cabell, 
 Feb. 13, 1839. 
 
12 HISTOET OF THE OOMMEECB CLAUSE. 
 
 the Passenger Gases} where, referring to the thirty-second 
 number of the Federalist as authority, he said that in those 
 cases where it was thought that the powers given by aflirm- 
 ative grant to Congress should be exclusive, there had been 
 most pointed care expressly to prohibit the exercise of such 
 power by the States. " The grant of a general authority to 
 regulate commerce, is not, therefore, a prohibition to the States 
 to make any regulations concerning it within their own terri- 
 torial limits not in. conflict with the regulations of congress." 
 It may be added, too, that certain acts which might be 
 performed by the Federal government under this grant of 
 power are in express terms prohibited to the States ; such, 
 for instance, may be the power to coin money,^ which the 
 States are in terms prohibited from doing. 
 
 In many respects the line of argument which was thus 
 made against the exelusiveness of the Federal commercial 
 power has received general support. 
 
 Logic and the necessity of events had not yet developed 
 that sweeping and comprehensive prohibition which lay con- 
 cealed in the general commerce clause, — a prohibition which 
 has now become the most conspicuous feature of the Federal 
 commercial power. 
 
 Early Construction of the Clause. — That this was the first 
 view which generally obtained upon this subject appears 
 from the earliest constructions placed upon this clause. In 
 the opinion upon the United States Bank bill presented 
 by Edmund Randolph, then attorney-general, to President 
 "Washington, on the 12th of February, I'TQl, ia comment- 
 ing upon the powers of Congress over commerce among 
 the States, Mr. Eandolph says that these powers " are lit- 
 tle more than to establish the forms of commercial inter- 
 course between the States, and to keep the prohibitions 
 
 17 How. 471. p. 600. Conf. Metropolitan Bank V. 
 
 2 Hare on American Constitu- Van Dyke, 37 N. Y. 400, 502, 535; 
 
 tional Law, p. 114 See Letter of United States v. Marigold, 9 How. 
 
 Madison in Appendix to Elliott's 560. 
 Debates (3d ed., Phila. 1876), vol IV, 
 
HISTOBT OF THE COMMEEOE CLAUSE. 13 
 
 which the constitution imposes on that intercourse undi- 
 minished in their operation; that is, to prevent taxes on 
 imports or exports; preferences to one port over another, by 
 any regulation of commerce or revenue ; and duties upon the 
 entering or clearing of the vessels of one State in the ports 
 of another." 
 
 Even Alexander Hamilton, in his opinion upon the same 
 subject, rendered to Washington eleven days later, while 
 earnestly defending this provision of the Constitution as a 
 substantial and extensive grant of power, nevertheless makes 
 no reference to any consequent limitations upon the author- 
 ity of the States. 
 
 The same appears also in the earliest action upon the sub- 
 ject. In 1802 the Supreme Court of Connecticut sustained 
 a suit brought against the owner of a stage-coach engaged 
 in transportation between Westfield, in Massachusetts, and 
 Albany, in New York, for carrying passengers within the 
 State of Connecticut in violation of a law of that State, which 
 granted an exclusive right to the plaintiff to engage in such 
 transportation.^ 
 
 In Maryland and Virginia also the right to carry passen- 
 gers had been granted as a monopoly, and it appears that 
 these laws were construed as applying to travel between 
 States.^ furthermore, as showing the view of this matter 
 in Congress, it is said that a motion was made in the second 
 Congress to permit stage-coaches carrying the mails from 
 State to State to transport passengers also,, but that the mo- 
 tion was lost as being in violation of the rights of the States.' 
 
 Even in relation to foreign commerce the Federal power 
 did not go unchallenged, for during the period in which 
 Congress was prevented from prohibiting the slave trade, 
 several States prohibited slave importation,* — a course of ac- 
 
 iPerrin v. Sites, 1 Day (Conn.), ' McMaster's History of the Amer- 
 
 19. lean People, voL 3, p. 60. 
 
 2 MoMaster's History of the Amer- * Schouler 's Histoiy of the United 
 
 lean People, voL 3, p. 60. Conf. Con- States, voL 1, p. 144 
 ■way V. Taylor's Executor, 1 Black, 
 603. 
 
14: HISTOET OF THE COMMEECE CLAUSE. 
 
 tion in which the Federal govemment apparently acquiesced. 
 The House of Kepresentatives, at least, claimed then noth- 
 ing more for the United States than that it could regulate 
 the treatment of slaves by citizens of the United States dur- 
 ing their transportation into the States admitting them.' 
 
 To the wide range of questions thus so early suggested, 
 we find no answer in the express terms of the Constitution. 
 Whether the commercial power which had been granted to 
 Congress was to be exclusive of, or concurrent with, State 
 action; whether it was to be subordinate or superior to the 
 police or revenue powers of the States ; whether, in short, it 
 was to be everything or nothing, — aU this was undetermined. 
 The Federal authority as it exists to-day is the work of the 
 national judiciary, and the decisions of the Supreme Court 
 which mark its extent and its limitations would alone be the 
 enduring monument of the greatness of the men who have 
 sat upon the bench of that court, were their memory in aU 
 else gone. 
 
 The Constitutional Convention had met and adjourned. 
 The Constitution which it framed had been adopted, and for 
 thirty-five years no case involving the extent of this power 
 arose in the Federal Supreme Court. 
 
 Growing Importance of the Clause. — Before the year 184:0 
 the construction of this clause had been involved in but five 
 cases submitted to the Supreme Court of the United States. 
 In 1860 the number of cases in that court involving its con- 
 struction had increased to twenty; in 1870 the number was 
 thirty; by 1880 the number had increased to seventy-seven; 
 in 1890 it was one hundred forty-eight; while at the present 
 time it is not less than two hundred and thirteen. 
 
 In the State courts and United States Circuit and District 
 courts the progress is not less significant. In 1840 this clause 
 of the Constitution had been involved in those courts in forty- 
 
 lAimals of Congress, Feb. 11, 7thCong.,2dSess.,1803,1803,p.l563; 
 March 33, 1790; Act of Feb. 28, Brig WUson v. United States, 1 
 1803; 2 Stats. I* 205; Annals of the Brock. 428. 
 
HISTORY OF THE COMMEEOE OLATTSE. 15 
 
 eight cases only. In 1860 tlie number Lad increased to one 
 hundred sixty-four ; in 18Y0 it was two hundred thirty-eight ; 
 in 1880 it was four hundred ninety-four; in 1890 it was eight 
 hundred, while at the present time it is nearly fourteen hun- 
 dred. 
 
 Such a history as this can, it is believed, find its parallel 
 in no other branch of constitutional law. The explanation 
 may perhaps be that in no other branch of constitutional 
 law are so many conflictiug interests arrayed against each 
 other. 
 
 To this field has been transferred ia large part the modern 
 battle of States rights. 
 
 Here we find the struggle between classes and sections 
 represented in resistance to Granger legislation, and the 
 struggle between capital and labor represented in protection 
 of carriers against violent iuterference with their operation. 
 
 More significant than aU, we find here in the majority of 
 cases the element of discrimination by one State against an- 
 other, showing that the old Hellenic appetite, which found 
 its satisfaction ia the commercial chaos of the Confedera- 
 tion, has been neither extiuguished nor slaked. 
 
 The judicial construction of the commerce clause by the 
 Supreme Court of the United States begins with the case of 
 Giiions v. Ogden} 
 
 Gfiblons v. Ogden. — This great case involved the validity 
 of a law of the State of New York giving to Livingston 
 and Fulton, and their assigns, the exclusive right to navigate 
 the waters of that State by steamboats. On the part of the 
 appellant it was contended that such a law was an attempt 
 by the State to regulate commerce, and therefore in conflict 
 with the exclusive right of the Federal government to make 
 such regulations. 
 
 On behalf of the respondent it was urged that the Federal 
 power over commerce, in the absence of Federal legislation, 
 did not exclude State action, and furthermore, that^ if a law 
 
 19 Wheat. 1. 
 
16 HISTOET OF THE COMMEEOE OLAtTSE. 
 
 passed by a State in. the exercise of its acknowledged sover- 
 eignty comes into conflict with a law passed by Congress in 
 pursuance of the Constitution, they affect the subject and 
 each other like equal opposing powers. 
 
 Thus, eight years before the ordinance of South Carolina, 
 the doctrine of nullification was presented to the Supreme 
 Oourt.* 
 
 In the opinion of the court, the supremacy of Federal au- 
 thority, and the exclusive character of the national control 
 of commerce, were clearly defined, and the rule then laid 
 down is the established rule of the Federal courts to-day. 
 In reading that momentous decision, apprehending, as we 
 do now, the iuterests which were at stake, and with which 
 the conclusion was pregnant, one cannot help pausing to 
 wonder what might have been the result had that decision 
 been in any way different from what it was. Had the ut- 
 terance of the court upon the powers of the States been more 
 ambiguous; had the expression upon the relation of the 
 States to the Federal government been avoided, and the 
 element of nationality involved been less explicitly disclosed 
 and asserted; had it been allowed to cripple the comm.ercial 
 power of the nation in anyway, — where would the, influence 
 of that decision have led us now? We may find some .sug- 
 gestion of an answer to these questions ia the dissensions of 
 the court in JVew Ym^Tt v. Miln, the Passenger Cases, the 
 License Cases, and in the statement of Mr. Justice Barbour, 
 that the police power of the State is " complete, unqualified, 
 and exclusive." 
 
 In Gibbons v. Ogden, Mr. Chief Justice Marshall said that 
 the commercial power is a whole, incapable of division, and 
 therefore exclusive of a like power in a co-ordinate sover- 
 eignty. The power to tax is an instance of a power which 
 is, ia its nature, divisible. " Taxation is the simple opera- 
 tion of taking small portions from a perpetually accumu- 
 
 iSee Elkison v. Deliesseline, 2 v. Tax Collector, 2 Bailey (S. 0. 
 WheeL Cr. Cas. 56, decided by Mr. Law), 654, 674; Smyth v. Ames, 169 
 Justice Johnson in 1833. Conf. State U. S. 466, 171 U. S. 361, 
 
HISTOBT OF THE COMMEEOE CLAUSE. 17 
 
 lating mass, susceptible of almost infinite division; and a 
 power in one to take what is necessary for certaia purposes 
 is not, in its nature, incompatible with a power in another 
 to take what is necessary for other purposes. . . . "When, 
 then, each government exercises the power of taxation, 
 neither is exercising the power of the other. But, when a 
 State proceeds to regulate commerce with foreign nations 
 or among the several States, it is exercising the very power 
 that is granted to congress, and is doing the very thing 
 which congress is authorized to do. There is no analogy, 
 then, between the power of taxation and the power of regu- 
 lating conunerce. ... It has been contended by the 
 counsel for the appellant, that as the word to " regulate " 
 implies in its nature full power over the thing to be regu- 
 lated, it excludes, necessarily, the action of aU others that 
 would perform the same operation on the same thing. That 
 regulation is designed for the entire result, applying to those 
 parts which remain as they were as well as to those which 
 are altered. It produces a uniform whole, which is as much 
 disturbed and deranged by changing what the regulating 
 power designs to leave untouched as that on which it has 
 operated. There is great force in this argument, and the 
 court is not satisfied that it has been refuted." 
 
 In this opinion Mr. Justice Johnson agreed, holding that 
 "The power of a sovereign State over commerce, there- 
 fore, amounts to nothing more than a power to limit and 
 restrain it at pleasure. And since the power to prescribe 
 the limits to its freedom necessarily implies the power to de- 
 termine what shall remaiu unrestrained, it follows that the 
 power must be exclusive ; it can reside but iu one poten- 
 tate ; and hence the grant of this power carries with it the 
 whole subject, leaving nothing for the State to act upon. 
 . . . The power to regulate foreign commerce is neces- 
 sarily exclusive. The States are unknown to foreign na- 
 tions; their sovereignty exists only with relation to each 
 other, and the general government. "Whatever regulations 
 foreign commerce should be subjected to in the ports of the 
 2 
 
18 HISTOET OF THE OOMMEEOE CLAUSE. 
 
 Union, the general government would be held responsible 
 for them; and aU other regulations but those "which con- 
 gress had imposed would be regarded by foreign nations 
 as trespasses and violations of national faith and comity. 
 
 " Eut the language ■which grants the power as to one de- 
 scription of commerce, grants it as to aU; and, in fact, if 
 ever the exercise of a right, or acquiescence in a construction, 
 could be inferred from contemporaneous and continued as- 
 sent, it is that of the exclusive effect of this grant." 
 
 Brown v. Maryland. — The next case upon the subject 
 was Brown v. Ma/rylamd^ decided in 1827. This case in- 
 volved the validity of a law of Maryland imposing a license 
 tax upon importers for the privilege of seUing imported 
 goods. The power of Congress upon this subject, the court 
 said, was not dormant, and it was not necessary to decide 
 whether the mere existence of the commercial power in 
 Congress excluded aU action by the States, although the 
 court indicated that it had not changed the views expressed 
 in the previous case. 
 
 Congress had expressly authorized importation by impos- 
 ing a duty upon the article which the plaintiff in error had 
 sold. The right to import, the court said, involved a right 
 on the part of the importer to sell, and any State law which 
 imposed a tax upon the exercise of that right must be in 
 collision with the Federal law, and therefore invalid. 
 
 " This argument," Mr. Justice Daniel said in the License 
 Cases^ " involves the palpable absurdity, that merchandise 
 which the government does not so strongly favor as to 
 admit without duty shaU remain intact and sacred, whilst 
 merchandise which is so much preferred as to be admitted 
 freely, — nay whose iutroduction is in effect invited and so- 
 licited by the federal government, — maybe burdened by 
 the States at pleasure." 
 
 The criticism would seem well made, if the court had not 
 expressly stated in its opinion that " the power claimed by 
 
 1 13 Wheat. 419. 2 5 How. 616. 
 
HISTOBT OF THE COMMBKOB OLAITSE. 19 
 
 the State is in its nature in conflict witli that given to Con- 
 gress." Indeed, the express point decided in the case seems 
 to rest upon the assumed fact that the conrmercial power 
 was exclusive in Congress, even when dormant. 
 
 Willson V. Blackbird Creek Ma/rsh Company. — Tollowing 
 these cases in 1829 came Willson v. JBlacIdbird Creek Ma/rsh 
 Convpomy} 
 
 This case involved the validity of a law of Delaware, au- 
 thorizing the erection of a dam across Blackbird creek, a 
 small stream whoUy within the limits of that State. It was 
 admitted that Congress had not legislated upon the subject, 
 and therefore the very question was raised, upon which the 
 court had expressed so definite an opinion, but which it had 
 not been required to decide, in the two preceding cases. If 
 the action of the State of Delaware was invalid, it was so 
 because the dormant power possessed by Congress excluded 
 all action whatever by the States. 
 
 The opinion, which was rendered by Mr. Chief Justice 
 Marshall, is short, and without reference to the opinions 
 which he had delivered in the previous cases. The court 
 said: 
 
 "If congress had passed any act which bore upon the 
 case ; any act in execution of the power to regulate com- 
 merce, the object of which was to control state legislation 
 over those small navigable creeks into which the tide flows, 
 and which abound throughout the lower country of the mid- 
 dle and southern States; we should feel not much difficulty 
 in saying that a state law coming in conflict with such act 
 would be void. But congress has passed no such act. The 
 repugnancy of the law of Delaware to the Constitution is 
 placed entirely on its repugnancy to the power to regulate 
 commerce with foreign nations and among the several 
 States; a power which has not been so exercised as to affect 
 the question. 
 
 "We do not think that the act empowering the Blackbird 
 
 1 2 Pet 245. 
 
20 HISTOET OF THE COMMEECE CLAUSE. 
 
 Creek Marsh Company to place a dam across tke creek can, 
 under all the circmnstancesof the case, be considered as repug- 
 nant to the power to regulate commerce in its dormant state, 
 or as being in conflict with any law passed on the subject." 
 
 This opinion has met with widely-varying interpretations, 
 and has been considered inconsistent with the views ex- 
 pressed in Cfibbons v. Ogdm, and in Brown v. MwryUmd. 
 The position which Mr. Chief Justice Marshall had taken in 
 the previous cases was that the grant to Congress of the 
 power to regulate commerce is exclusive because the power 
 is itself a unit, incapable of division, and comprehends all 
 foreign commerce and all commerce among the States;^ or, 
 as stated by Mr. Justice Strong, it was that the commercial 
 power is so exclusively vested in Congress that no part of it 
 can be exercised by a State.^ It is plain, too, that the law of 
 Delaware upon which the case arose, was a law which Con- 
 gress might have passed in effectuation of its general com- 
 mercial power; for, aside from- the opinion, which seems 
 clear upon this point, we have the statement of Mr. Justice 
 Thompspn, who was upon the bench at that time, that this 
 law was so regarded.' 
 
 On the other hand, it is improbable that the court could 
 have intended to disapprove of the argument in both of the 
 earlier cases upon this subject in so brief a manner and with- 
 out express reference to them. " There is not a_man living, 
 I suppose," said Mr. Justice CUfford in Cfilmam, v. Philadel- 
 phia, " who has any reason to conclude that the constitu- 
 tional views of the court had at that time undergone any 
 change ; " * and ample confirmation of this view may be found 
 in Mr. Justice Story's statement that Mr. Chief Justice 
 Marshall agreed ta his dissenting opinion in the case of 
 New York v. Miln? 
 
 The solution of the difficulty seems to lie in the fact, as 
 
 1 Gibbons v. Ogden, 9 Wheat., at ' New York v. Miln, 11 Pet., at 
 p. 194. p. 149. 
 
 2 Case of the State Freight Tax, * 3 WalL, at p. 743. 
 15 WalL 333. 379. » 11 Pet. 161. 
 
HISTOKT OF THE COMMEECE CLATTSE. " 21 
 
 was suggested in. the WheeUng Bridge Oase^ that the statute 
 in question was considered purely as a police regulation, to 
 reclaim the adjacent marshes for the benefit of the public 
 health. WMLe, therefore, the power of Congress over com- 
 merce must always be regarded as exclusive of such authority 
 on. the part of the States, the different purposes of statutes 
 in. question must mark the distinction between the powers 
 brought into action.^ The obvious suggestion was, therefore, 
 made that as to the means which may be employed by the 
 States in effectuation of their reserved powers, the exclusive- 
 ness of the Federal power is to some extent to be deter- 
 mined by the subjects upon which it operates, or that, so 
 far as reasons exist, to make the national power exclusive, 
 the court should so construe the constitutional provision; but 
 that as the exclusiveness of this power depends not on any 
 express prohibitions, but upon the reasons for its exercise, it 
 should not extend beyond the reasons themselves. 
 
 The suggestion was, however, forgotten, and was not until 
 the year 1851 made the express basis of a decision of the 
 court. 
 
 New York v. Miln. — The uncertainty produced by the de- 
 cision in Willson v. BloGktmd Creek Mwrsh Compomy is shown 
 by the widely differing views entertained by the court in 
 the next case, — that of New York v. MiJm,? 
 
 The State of New York had passed a law requiring mas- 
 ters of aU passenger vessels from other States or foreign 
 countries to make a report to the State authorities within 
 twenty-four hours after their vessels had arrived, giving ia- 
 f ormation as to the passengers which their vessels had car- 
 ried upon the voyage. The constitutionality of this act was 
 questioned, as a regulation of foreign and interstate com- 
 merce. 
 
 The court held that the act was valid, as an exercise of 
 the police power, and not a regulation of commerce. 
 
 ilSHow., atp. 566. 811 Pet. 103; Miln v. Mayor of 
 
 2 Gibbons v. Ogden, 9 Wheat New York, 3 Paine, 0. C. Rep. 43a 
 335. 
 
22 HISTOET OF THE COMMEECE CLAUSE. 
 
 To this point the court expressly limited the decision, and 
 refused to pass upon the question whether the commercial 
 power in Congress is itself exclusive of State action, although 
 this subject was fully argued at the bar. Upon this ques- 
 tion, we are informed, great diversity of opinion existed upon 
 the bench.i In the Passenger Oases^ Mr. Justice "Wayne 
 made the statement that four of the judges considered the 
 constitutional grant exclusive ; three thought otherwise ; and 
 that it was to this disagreement among the members of the 
 court that the disclaimer in the opinion was due. 
 
 Mr. Justice Barbour, however, in his opinion, went far be- 
 yond the poiat he professed to decide. His early and strongly 
 national views were forgotten and abandoned. He justified 
 the act as an exercise of the police power reserved to the 
 States, and which is itself " complete, unqualified and exclu- 
 sive," — a phrase which Mr. Justice Grier afterward quoted 
 as authority for his remarkable position in the License Oases. 
 Whether the power granted to Congress be exclusive or 
 not, said Mr. Justice Barbour, it includes only the power to 
 legislate for the purpose of regulating commerce. Means 
 which may be employed by the States for other purposes 
 may never, by an exclusive grant of a power to Congress, 
 be prohibited to the States, unless in actual conflict with 
 Federal legislation. 
 
 In the dissenting opinion of Mr. Justice Story we find a 
 return to the arguments of the court in the case of Gibbons 
 V. Ogden, an opinion which Mr. Justice Story said had the 
 entire concurrence of Mr. Chief Justice Marshall, and which 
 shows that he never intended to overrule the position which 
 he had taken in that case. 
 
 " FuU power to regulate a particular subject implies the 
 whole power, and leaves no residuum; and a grant of the 
 whole to one, is incompatible with a grant to another of a 
 part." Further than this, he said, it is one question whether 
 a means be adapted to serve the State in the exercise of its 
 
 1 See 5 How., at p. 584; 7 How., at 2 7 How. 433. 
 pp. 423, 435, 430. 
 
HISTORY OF THE COMMEECB CLAITSB. 23 
 
 reserved powers, and quite another question whether such 
 means be within the competency of the State. An exclusive 
 grant of power to Congress may necessarily deprive the State 
 of some means to enforce its reserved powers, because the 
 power of the State does not extend to the employment of 
 those means. 
 
 The License Cases. — In Pierce v. New Momvpshvre^ one of 
 the License Cases decided in 1846, the question expressly re- 
 served in the MUn case came directly before the court for 
 decision, 
 
 A barrel of gin being bought in Boston, transported to New 
 Hampshire and there sold without the license which the lat- 
 ter State required for the privilege of selling spirituous 
 liquors, and the seller being indicted therefor, the defense 
 was raised that the law was unconstitutional so far as affected 
 vendors of merchandise brought from another State. It was 
 admitted that Congress had passed no law bearing directly 
 upon this subject, and that if the State law was unconstitu- 
 tional, it was so because in conflict with the dormant com- 
 mercial power of Congress. 
 
 Six justices delivered separate opinions in this case, but aU 
 reached the conclusion that the New Hampshire law was a 
 valid exercise of the authority of the State. 
 
 Mr. Chief Justice Taney and Justices Catron and Nelson 
 were of the opinion that the statute was a regulation of in- 
 terstate commerce, but yet vaUd so long as it was not in con- 
 flict with any legislation of Congress, and endeavored to 
 harmonize their conclusions with the argument of the court 
 in CHMons v. Ogden and Brown v. Ma/rylomd. 
 
 Mr. Justice Daniel, disregarding Brown v. Mcmjlamd, held 
 that the right to import did not include the right* to sell. 
 
 In the opinion of Mr. Justice Grier is heard for the first 
 
 time from the bench the argument which had been presented 
 
 to the court by counsel in Brown v. Mm-ylcmd, and in the 
 
 MUn case, an argument which had been discredited by Mr. 
 
 15H0W. 504,13N. H. 536. 
 
2i HISTOET OF THE COMMEECE CLAUSE. 
 
 Chief Justice Marshall and denied by Mr. Justice Stor j, that 
 the authority of a State, in the exercise of its reserved powers, 
 is " complete, unqualified and exclusive," and that the exi- 
 gencies of the social compact require that the police laws of 
 the State be executed before and above all others, 
 
 Mr. Justice McLean alone affirmed in his opinion that the 
 dormant commercial power of Congress excludes aU State 
 action. 
 
 Mr. Justice "Woodbury took a middle course, and, for the 
 first time in the history of the court, formulated the modern 
 rule.^ In several respects, he said, the power granted is not 
 in its nature more exclusive of action on the part of the 
 States than are other powers granted to Congress. So far 
 as regards the uniformity of a regulation reaching to all the 
 States, the commercial power " must of course be exclusive," 
 but in many local matters it not only permits but requires 
 the concurrent and auxiliary action of the States. 
 
 "There is much in connection with foreign commerce which 
 is local within each State, convenient for its regulation and 
 useful to the public, to be acted on by each tiU the power is 
 abused or some course is taken by congress conflicting with 
 it. Such are the deposit of ballast in harbors, the extension 
 of wharves into tide water, the supervision of the anchorage 
 of ships, the removal of obstructions, the allowance of bridges 
 with suitable draws, and various other matters that need not 
 be enumerated, beside the exercise of numerous police and 
 health powers, which are also by many claimed upon differ- 
 ent grounds." (Page 624.) 
 
 The Passenger Cases. — The question next came before the 
 court in the Passenger Oases? 
 
 These cases arose upon laws of New Tork and Massachu- 
 setts imposing a tax ujion all passengers arriving from other 
 
 iln Bowman v. The Railroad Cooley v. Port Wardens, 12 How, 
 
 Co., 135 U. S. 481, Mr. Justice Mat- 310. 
 
 thews erroneously gives to Mr. 27 How. 282; Norris v. Boston, 4 
 
 Justice Curtis the credit of having Met. 282. 
 first clearly stated this rule in 
 
HISTOET OF THE OOMMBEOE CLAUSE. 25- 
 
 States or foreign comitries ; the proceeds to go, first, to pay 
 the State expenses of executing its police laws excluding 
 paupers and convicts, and the surplus, if any, to be applied 
 to State purposes. 
 
 The decision of the court, four justices dissenting, was 
 against the constitutionality of the State laws. 
 
 Mr. Justice McLean based his decision on the ground that 
 the Federal commercial power was exclusive; the four other 
 justices, constituting a majority of the court, saying that 
 they did not consider it necessary in these cases " to re-affirm 
 what this court has long since decided, that the constitutional 
 power to regulate commerce with foreign nations, and among 
 the several States, and with the Indian tribes, is exclusively 
 vested in congress, and that no part of it can be exercised 
 by a State." (Page 411.) 
 
 In his dissenting opinion in these cases, Mr. Justice "Wood- 
 bury repeated the distinction which he had made in the 
 License Gases. 
 
 In his opinion, the subject upon which New Tork and 
 Massachusetts had legislated was in its nature local, neither 
 requiring nor being capable of uniform regulation through- 
 out the country. 
 
 " When I say much was left, and meant to be left, to the 
 States in connection with commerce, I mean concerning de- 
 tails and local matters, inseparable in some respects from 
 foreign commerce, but not belonging to its exterior or gen- 
 eral character, and not conflicting with anything congress 
 has already done." . . . "So far as reasons exist to make 
 the exercise of the commercial power exclusive, as on mat- 
 ters of exterior, general, and uniform cognizance, the con- 
 struction may be proper to render it exclusive, but no further,, 
 as the exclusiveness in this case depends whoUy on the rea- 
 sons, and not on any express prohibition, and hence cannot 
 extend beyond the reasons themselves. Where they dis- 
 appear the exclusiveness should halt. In such case, emphat- 
 ically, cesscmte ratione, cessat et ipsa lex." * 
 
 1 7 How., at p. 559. 
 
26 HISTOET OF THE COMMERCE CLAUSE. 
 
 " There is notliing in the nature of much which is here 
 connected with foreign commerce that is in its character 
 foreign, or appropriate for the action of a central and single 
 government; on the contrary, there is matter which is en- 
 tirely local, — something which is seldom rmiversal, or re- 
 quired to be either general or uniform. For though congress 
 is empowered to regulate commerce, and ought to legislate 
 for foreign commerce as for aU its leading incidents and 
 uniform and umversal wants, yet 'to regulate commerce' 
 could never have been supposed by the f ramers of the con- 
 stitution to devolve on the general government the care of 
 anything except exterior iutercourse with foreign nations, 
 with other States, and the Indian tribes." ^ 
 
 " For the silence of congress, which some seem to regard 
 as more formidable than its action, is^ whether in full or in 
 part, to be respected and obeyed only where its power is 
 exclusive, and the States are deprived of all authority over 
 the matter. The power must first be shown to be exclusive 
 before any inference can be drawn that the silence of con- 
 gress speaks." . . . "In other cases where the power of 
 congress is not exclusive, and that of the States is concur- 
 rent, the silence of congress to legislate on any mere local 
 or subordinate matter within the limits of a State, though 
 connected in some respects with foreign commerce, is rather 
 an invitation for the States to legislate upon it." ^ 
 
 Cooley V. Port Wardens. — In Oooley v. Port Wardens,^ 
 the next case involving this question, the disttaction made 
 by Mr. Justice "Woodbury in the lAcense and Passenger Cases 
 was adopted as the rule of decision. In deUvering the opin- 
 ion of the court Mr. Justice Curtis said: 
 
 " The diversities of opinion, therefore, which have existed 
 on this subject have arisen from the different views taken of 
 the nature of this power. But when the nature of a power 
 like this is spoken of, when it is said that the nature of the 
 
 1 7 How., at pp. 557, 558* » 13 How, 310, 319. 
 
 2 7 How. 559. 
 
HISTOET OF THE COilMEECE CLATTSE. 37 
 
 power requires that it should be exercised exclusively by 
 congress, it must be intended to refer to the subjects of that 
 power, and to say they are of such a nature as to require 
 exclusire legislation by congress. Now, the power to reg- 
 ulate commerce, embraces a vast field, containing not only 
 many, but exceedingly various subjects, quite unlike in their 
 nature ; some imperatively demanding a single uniform rule, 
 operating equally on the commerce of the United States in 
 every port ; and some, like the subject now in question, as 
 imperatively demanding that diversity, which alone can 
 meet the local necessities of navigation. Either absolutely 
 to affirm, or deny that the nature of this power requires ex- 
 clusive legislation by congress, is to lose sight of the nature 
 of the subjects of this power, and to assert concerning aU of 
 them what is really applicable but to a part." 
 
 Final Statement of the Rule as to JExclusiveness. — The 
 distinction thus involved in Mr. Chief Justice Marshall's de- 
 cisions, originally formulated and definitely expressed by 
 Mr. Justice "Woodbury, and authoritatively adopted by the 
 court in the opinion of Mr. Justice Curtis, has now become 
 the weU-settled rule of the Federal courts. The States may 
 establish port regulations, regulations of pUotage, may im- 
 prove their harbors and rivers, erect bridges and dams, and 
 exercise many other local powers. In the exercise of its 
 proper authority, a State may enact laws providing for the 
 inspection of goods, to determine whether they are fit for 
 commerce, and to protect the citizens and the market from 
 fraud. But in aU such cases, as was said in Leisy v. Hwrdvn,, 
 though the States may exercise powers which may be said 
 to partake of the nature of the power granted to the general 
 government, they are strictly not such, but are merely local 
 powers, which have full operation until circumscribed by the 
 action of Congress in effectuation of the general power. 
 
 In matters admitting uniform regulation throughout the 
 country and affecting all the States, the inaction of Congress 
 is to be taken as a declaration of its will that commerce shall 
 
28 HISTOET OF THE OOMMEECE CLAUSE. 
 
 be " free and unrestricted " so far only as concerns any gen- 
 eral regulation by the States. It can hardly be considered 
 that this phrase means more than freedom from such regu- 
 lations as admit of xmiformity, for it is only to this extent 
 that the jurisdiction of Congress over interstate commerce 
 is exclusive of State regulation.^ 
 
 On the other hand, in matters of local nature, such as are 
 auxiliary to commerce rather than a part of it, the inaction 
 of Congress is to be taken as an indication that for the time 
 being, and imtD. it sees fit to act, they may be regulated by 
 State authority. 
 
 Since the decision of Cooley v. Port Wardens, the rule 
 therein laid down has, vrith one important exception which 
 win be hereafter noticed,^ been followed in every case in the 
 Supreme Court upon this subject. It is perhaps the most 
 satisfactory solution which has ever been given of this vexed 
 question,' and " may be considered as expressing the final 
 judgment of the court." * 
 
 It is not easy at this time to exaggerate the importance of 
 the case by which this rule was established. 
 
 iSee 4 Harvard Law Rev. 234 kersburgh, 107 U. S. 691, 701, 702; 
 
 ^Post, p. 164. Escanaba Co. v. Chicago, 107 U. S. 
 
 sCrandaUv.Nevada,6Wall.35,43 678, 687; Packet Co. v. Catletts- 
 
 4MobUev. Kimball, 102 U.S. 691, burg, 105 U. S. 559; Tieman v. 
 
 703; Bowman v. Eailroad Co., 135 Rinker, 103 U. S. 123; HaU v. De 
 
 U. S. 465, 507; Bridge Co. v. Ken- Cuir, 95 U. S. 485; Eailroad Co. v. 
 
 tucky, 154 U. S. 204; Leisy v. Har- Husen, 95 U. S. 465; Poimd v. 
 
 din, 135 U. S. 100; Stoutenburgh Turck, 95 U. S. 459; Foster v. The 
 
 v. Hennick, 139 U.S. 141; Telegraph Master, etc. of the Port, 94 U.S. 
 
 Co. V. Pendleton, 133 U. S. 347; 346; Henderson v. Mayor, etc., 93 
 
 Steamship Co. v. Pennsylvania, 123 U. S. 359, 373; Welton v. Missoiiri, 
 
 U. S. 326; Ouachita Packet Co. v. 91 U. S. 275; Case of State Freight 
 
 Aiken, 131 U. S. 444; Eobbins v. Tax, 15 WaU. 333, 379; Ward v. 
 
 Taxing District, 130 U. S. 489; War Maryland, 13 WalL' 418; Hardy v. 
 
 bash, etc. E. R Co. v. Illinois, 118 Raibroad Co., 33 Kan. 698; Master, 
 
 U. S. 557; Walling v. Michigan, 116 etc. of Port of New Orleans v. Ship 
 
 U. S. 446, 455; Brown v. Houston, "M. J. Ward," 14 La. Ann. 387; 
 
 114 U. S. 622; Gloucester Ferry Co. Commonwealth v. Huntley, 156 
 
 V. Pennsylvania, 114 U. S. 196; Mass. 336; Lumberville, etc. Co. v, 
 
 Cardwell v. Bridge Co., 113 U. S. State Board, 55 N. J. L. 529. 
 205,310; Transportation Co. v. Par- 
 
HISTOET OF THE COMMEECE CLAUSE. 29 
 
 It offered a logical principle for the construction of the 
 constitutional provision, such as no previous case had of- 
 fered. More than this, it marked, in 1851, the end of the 
 struggle, lasting more than thirty years, and which had been 
 begun in Ogden v. Gihhons, iu the New York courts. 
 
 Like the latter case, which had called out the early an- 
 nouncement of the principles of nullification, this case, too, 
 occupies a place in political history, for it was followed in 
 1854 by that ringing declaration of the principles of seces- 
 sioQ which is to be found in the fourteenth volume of the 
 Georgia Eeports, in the case of Padelford and others against 
 the Mayor of Savannah,* a declaration which closed with the 
 significant statement that, in matters of dispute between a 
 sovereign State and the Federal government, a citizen who 
 considered himself injured by a Federal statute should look 
 to his State for protection. It is that sovereign's business, 
 said the court, to get enough from the offending sovereign 
 to cover aU private losses of its own citizens, and if it do not, 
 these citizens must look to it alone for indemnity. 
 
 Difficulty of Applying the Rule. — And yet the case of 
 Cooley V. Port Wa/rdens has had its largest effect in the theory 
 of the law. 
 
 We read in Blackstone of a statute, made with great de- 
 liberation, and introduced in the most solemn manner, which 
 has, owing to the construction placed upon it, had little other 
 effect than to make a slight alteration in the formal words 
 of a conveyance. To a certain extent the same sort of com- 
 ment might also be made upon the rule laid down in Cooley 
 V. Port Wardens; for, with little change in its practical as- 
 pects, the battle which before this time had been fought over 
 the exclusiveness of the Federal power, now wages about the 
 rule announced by this decision, and is decided upon the cir- 
 cumstances of each case by the determination whether the 
 power in question is local in its nature, or is one which neces- 
 sitates a general rule capable of uniform application. 
 
 il4Ga.438. 
 
30 HISTOKT OF THE COMMEKCE OLAtTSE. 
 
 In making- this determination, it was held, in Mobile v. 
 Kimball, that the controlling pxirpose of this clause of the 
 Constitution was to secure commerce among the States from 
 conflicting or discriminating State regulations,^ and that its 
 application must be made in the light of this purpose. In 
 every case, therefore, the principal test of the constitution- 
 ality of State legislation was found in the questions whether 
 the statute was discriminating or would tend to produce 
 conflict of regulations. 
 
 In very many cases the legislation involved has been of a 
 discriminating character; but in tracing the history of the 
 rule it must be remembered that discrimination is not all 
 that is forbidden by the commerce clause, nor is the ques- 
 tion of its existence the only test by which the validity of 
 State legislation is to be determined. 
 
 It is not impossible, however, that the most far-reaching 
 effect produced by the clause has been the prevention of 
 wars of commercial discrimination among the States. The 
 impulse in this direction has shown itself so strong, that 
 since the adoption of the Constitution there has never been 
 a period when there was not to be found on the statute 
 books of some of the States acts passed in violation of this 
 provision of the Constitution.^ 
 
 Another and perhaps as good an illustration of the strength 
 of the theories of " protection," as applied among the States, 
 is found in the fact that, since it has been recognized that in- 
 surance is not included in the term " commerce," so as to be 
 within the protection of this clause of the Constitution, two- 
 thirds of the States have pursued a policy of discrimination, 
 restriction and retaliation towards the insurance companies 
 of other States. 
 
 Modern instances of the earnestness underlying this ever- 
 
 1 Mobile V. Kimball, 102 U. S. 691, 2 Memorial Oration of Mr. Jiistioe 
 697; Veazie v. Moor, 14 How. 568, MiUer, 135 U. S., Appendix. 
 574; The Federalist, Nos. VII and 
 XI; State v. Emert, 103 Mo. 241. 
 
HISTOKT OF THE COMIIEEOE CLAUSE. 
 
 31 
 
 smouldering commercial war — instances such as that of boy- 
 cott, with which Governor Gordon of Georgia, and the 
 Atlanta Constitution, proposed some years ago to meet the 
 advocates of the Lodge " Force Bill " — might be so multiplied 
 by a careful observer that this clause of twenty-one words 
 might perhaps be called the peace-maker of the States, or 
 perhaps not inaptly compared to the inch of timber that floats 
 the ship, or the half inch of steel that guides the traiu. 
 
 Tlie Purpose of the Clause as a Test.— The rule announced 
 in Mobile v. Kimball has been found, however, in actual ap- 
 plication, to present grave difficulties. Discrimination or 
 conflict in commercial regulations must, of course, always 
 come within the constitutional prohibition, but it is often 
 exceedingly difficult to determine whether they exist.^ The 
 widely-varying character of trade in different parts of the 
 country, and the ingenuity and persistency with which the 
 States have sought to take advantage of this element to 
 protect their domestic trade under the guise of uniform tax- 
 ation or regulation of police, has seemed to necessitate a 
 stricter rule. 
 
 An instance of the difficulty thus encountered is found in 
 the case of the State Freight Toux^ which involved a law of 
 Pennsylvania laying a tax on every ton of freight carried 
 within the limits of the State. 'Eo distraction whatever was 
 made between domestic and interstate traffic, and yet, as 
 was poiuted out in the able argument against the tax, the 
 citizens of that State could well afford to submit to a com- 
 mercial regulation which taxed for their benefit the millions 
 of tons of freight which are transported through or from 
 their State. " A regulation of commerce which taxes the 
 vast tonnage of the great thoroughfares which traverse the 
 State from east to west and from north to south; which 
 taxes the tonnage of the Pennsylvania, of the Erie, of the 
 
 iSee dissenting opinion of Mr. 2 15 Wall. 233,337. 
 Justice Nelson in Woodruff v. Par- 
 ham, 8 "Wall 133, 140. 
 
32 HISTOET OF THE COMMEEOE CLAUSE. 
 
 Lake Shore, of the Philadelphia, "WOmington, and Baltimore, 
 and other railroads over which freight is transported, through 
 or from the State; which compels foreign consmners of 
 <3oal, and the other mineral products of Pennsylvania, to pay 
 tribute for the privilege of having them transported, either 
 by natural or artificial channels, by rivers or by railroads, is 
 not likely to be considered oppressive by the people of Penn- 
 sylvania. A State through whose territory a single line of 
 railroad passes would not hesitate to regulate railroad com- 
 merce without discriminating in favor of its own domestic 
 commerce, if the regulations proposed would render the 
 commerce of a continent tributary to its treasury. The 
 steamboat traffic of the Mississippi would be a tempting sub- 
 ject for the commercial regulations of the several States 
 within whose boundaries it is carried on. None of the evils 
 which induced the framers of the Constitution to invest Con- 
 gress with the power of regulating commerce between the 
 States would be avoided under such an interpretation of the 
 Constitution." 
 
 In the case to which reference has been made, the law in 
 question was not sustained, but in the decisions as to the 
 validity of State taxation upon commercial travelers there 
 have been different judgments. 
 
 Such taxation, when imposed upon all commercial travel- 
 ers doing business within a State, was for a time sustained. 
 Being uniform in its operation, it could hardly, in the ordi- 
 nary meaning of the word, be called discriminating; and yet 
 it is easy to perceive that the effect of such a tax would be 
 unfavorable to the trade of other States, and that this con- 
 sideration could not have been overlooked in the legislatures 
 of the several States by which such statutes have been en- 
 acted.' 
 
 The Widening Scope of the Clause. — It was in this class 
 of cases, therefore, that in 1886 we find the rule at last 
 
 1 For an example of this see Ex Agriculture, 43 Fed. Rep. 609, 613, 
 parte Hanson, 38 Fed. Rep. 137. 613. 
 Conf. Fertilizing Co. v. Board of 
 
HISTORY OF THE COMMEECE OLAITSE. 33 
 
 abandoned. That discrimination against other States does 
 not exist, it is now said, " does not meet the diflBculty." In- 
 terstate commerce " cannot be taxed at all, even though the 
 same amount of tax should be laid on domestic commerce, or 
 on that which is carried on solely within the State." Behind 
 the shield of the Federal commercial power the States do not 
 exist, or, in the brief, emphatic language of Mr. Justice 
 Bradley, " in the matter of interstate commerce the United 
 States are but one country." ^ And following this important 
 decision, like an echo of the ringing challenge from the Su- 
 preme Court of Georgia thirty-two years before, came the 
 declaration of the Court of Appeals of Texas in Ex jpa/rte 
 Asher^ that they do not feel bound by this decision, and, 
 not believing it to be the law of the land, wiU not consider 
 it of binding force. The Bobbins case is disapproved, 
 
 ToUowing this decision, one year later came the important 
 case of Bowmcm v. RaAVroad Co.^ in which it was held, the 
 Chief Justice and Justices Harlan and Gray dissenting, that 
 the question whether an article is or is not a subject of com- 
 merce is to be determined by the usages of the commercial 
 world, and does not depend upon the declaration of any 
 State. In this case the question concerned the right of the 
 
 1 Robbins v. Taxing District, 130 ure that our Assembly have come 
 
 U. S. 489, 494 See Stockton v. Eail- to the resolution of giving the reg- 
 
 road Co., 32 Fed. Rep. 9, 17. ulation of their conunerce to the 
 
 " It is observable that Mr. Jeffer- Federal head. I wiU venture to as- 
 son, in his letter of March 15, 1789, sert that there is not one of its op- 
 says: ' This instrument (the Consti- posers, who, placed on this groimd, 
 tution of the United States) forms would not see the wisdom of this 
 us into one State, for certain ob- measure. The politics of Europe 
 jects,' etc. In a number of other render it indispensably necessary 
 places, if I mistake not, he speaks that with respect to everything ex- 
 of the Constitution as making us temal, we be one nation only, firmly 
 one people and one nation for cer- hooped together. Interior govern- 
 tain purposes.'' Letter of Madison ment is what each State should 
 to Prof. Tucker, July 6, 1833. The keep to itself." Letter of Jefferson 
 James Madison Letters (N. Y., 1884), to Madison from Paris, Feb. 8, 1786. 
 vol. 4, p. 303. 2 33 Tex. App. 663. 
 
 "I have heard with great pleas- ' 135 U. S. 465. 
 8 
 
34 HISTOET OF THE COMMEECE OLATTSE. 
 
 railroad company to carry liquor into Iowa, notwithstanding 
 the prohibition laws of that State. There was no suggestion 
 of discrimination on the part of Iowa adverse to other States, 
 but it was said by the court, quoting the opinion of Mr. Jus- 
 tice Oatron in the License Cases, that if the State could thus 
 take an article from commerce, its power over interstate 
 commerce would be superior to that of Congress, in whom 
 the Constitution has vested it. Upon the theory that Con- 
 gress may regulate, but the State may determine what shaU 
 or shaU. not be regulated, the power to regulate commerce, 
 instead of being paramount over the subject, would be sub- 
 ordinate to the police power. 
 
 This decision has the approval of a majority of the court 
 in the recent cases of Leisy v. Ha/rdm ' and IJyng v. Michi- 
 gcm? 
 
 The fact of the adoption of the absolute rule stated in the 
 Bobbins case shows in its clearest light the great difficulty 
 which attended the application of the rule, which construed 
 the clause by its purpose, and yet it is certain that in many 
 cases the absolute rule has proved impossible of application, 
 and has been substantially modified by recent decisions, as 
 wiU be shown. Its principal defect from a practical stand- 
 point has been that, instead of establishing equal rights for 
 all, it established in every State a discrimination against the 
 citizens of that State in favor of those who were engaged in 
 interstate commerce. 
 
 Change in Theory of Constitutional Construction. — It is 
 at this point that the striking result of the progress of con- 
 stitutional interpretation since the case of Cooley v. Port 
 Wa/rdens becomes most conspicuous, — a result which may 
 be summarized in the statement that that which it is as to 
 other instruments the sole object of interpretation to dis- 
 cover and apply — the intention of the makers — has been, 
 as to constitutional interpretation, not only modified, but its 
 
 1135U. S. 100. 2135 U.S. 161. 
 
HISTOEY OF THE OOMMEECE CLAUSE. 35 
 
 application, in special circumstances may be said, as in the 
 Leisy and Bowman cases, to have been fairly disapproved. 
 The construction of the commerce clause cannot be limited 
 to the accomplishment of the particular objects which the 
 framers of the Constitution sought, but must broaden with 
 the extending needs of commerce, so as to accomplish wider 
 purposes. The words of the Constitution still remaiii, and 
 the purpose to protect national and international commerce 
 from burdensome, conflicting or discriminating State legis- 
 lation still remains; but the application of the clause to par- 
 tictilar conditions is changed. In the course of time, and in 
 greater or less degree, such must be the result of the inter- 
 pretation of any written Constitution. 
 
 " No instrument can be the same in meaning to-day and 
 forever, and in all men's minds. Its interpretation must take 
 place in the light of the facts which preceded and led to it ; 
 in the light of contemporaneous history, and of what was 
 ^said by the actors and the ends they had in view. And as 
 'men will differ upon facts and differ in mental constitution, 
 so they will differ in interpretation ; and in the case of a 
 written constitution, the divergencies are certain to increase 
 when it comes to receive practical application. And if at 
 any time the people are subjected to a great constitutional 
 crisis, they are not thereafter precisely the same in ideas, 
 sentiments, desires, hopes, and aspirations that they were 
 before : their experience works changes in their views and 
 in their habits of thought, and these may be so radical that 
 they seem altogether a new people. But as the people change, 
 so does their written constitution change also : they see it in 
 new lights and with different eyes; events may have given 
 unexpected illumination to some of its provisions, and what 
 they read one way before they read a very different way now. 
 Then the logic of events may for all practical purposes have 
 settled some questions before in dispute; and nobody, in 
 his contemplation of the constitution, can separate it if he 
 would from the history in which its important provisions 
 
36 HISTOET OF THE COMMEECE CLAUSE. 
 
 have had a part, or be unaffected in Ms own views by that 
 history." ^ 
 
 There comes a time, then, in the interpretation of a written 
 constitution, when the rules which are applied to other in- 
 struments are no longer the only guides to its interpretation; 
 a time when its history is of more importance than its origin ; 
 when the intention with which it was framed and adopted 
 can no longer alone control in its application. 
 
 The Application of the Doctrine of State's Bights. — This 
 poiat was reached in the interpretation of the Constitution 
 when the issue of the Civil "War had finally established, on a 
 new basis, the relations between the States and the Federal 
 government. "We pass from the old regime to the new, not 
 by the slow processes of judicial construction, but at a single 
 step, as the national sovereignty which the war established 
 as a fact is given place in the constitutional law of the nation 
 by the decisions of the court. 
 
 Throughout their development the principles which the 
 war established were political rather than judicial. American 
 constitutional history, until after the war, was largely a 
 struggle between the broader commercial interests of the 
 nation and the slave interests of the South. Throughout this 
 period, in everything that was said, whether upon the com- 
 merce clause, upon internal improvements, upon the United 
 States Bank, or upon any subject of constitutional construc- 
 tion broached, the mark of Southern slavery may be seen 
 over all; and, as Professor Von Hoist has said, when the 
 slave power lost hope of becoming the national power, the 
 necessity which required that it should dominate wherever 
 it existed made it particularistic and exclusive. It was in 
 this fact that Calhoun's theories of the Constitution found 
 their origin. Grant once a national power of commercial 
 regulation, and no State can exclude its operation. That the 
 interests of slavery forbade its admission can be shown ia no 
 
 1 " Michigan," by Judge Cooley, ia Am. Commonwealtli Series, p. 346. 
 
HISTOET OF THE OOMMEECE CLAUSE. 87 
 
 stronger light than is thrown upon it in the long standing- 
 dispute which led to, and followed, Mr. Samuel Hoar's mis- 
 sion from Massachusetts to South Carolina in 1844.^ ...., 
 Calhoun's doctrine that the United States Constitution 
 created no nation ; that the government which it established 
 was Federal as distinguished from National, " because it is 
 the government of a community of States, and not the gov- 
 ernment of a single State or nation," ^ found, therefore, im- 
 mediate application in the construction of the commerce 
 clause. Its influence may be seen throughout the course of 
 the decisions of the Supreme Court before the Civil "War, and, 
 although it had the distinct disapproval of that court, it was 
 a doctrine which no decision could overthrow. 
 
 Effect of tlie Overthrow of this Doctrine. — Among the 
 many constitutional changes which the Civil "War produced, 
 it may perhaps be said that none is so great as that in the 
 construction of the Federal commercial powers effected by 
 the disappearance of this theory. In OrandaU v. Nevada ' 
 may be found the substance of what was accomplished by 
 that great struggle. All the triumph of the armies of the 
 Union breathes in its stately judgment that "the people of 
 these United States constitute one nation." 
 
 In 1844 South Carolina asserted the power to exclude citi- 
 zens of other States from her territory. In 1865 Nevada 
 laid a tax upon persons leaving or passing through the State. 
 The difference between these statutes is one of detail. Both 
 alike assert the jurisdiction of the State over interstate travel. 
 Such jurisdiction, the court said, is inadmissible, not alone 
 
 1 Elkison v. Deliesseline, 3 WheeL Bill, 1 Op. Atty. Gen. 659, 3 id. 426. 
 
 Cr. Gas. 56; Report No. 80, House of Conf. also Baker v. Wise, 16 Gratt. 
 
 Representatives, 37th. Cong., 3d Ses- 139. 
 
 sion; Wilson, Rise and Fall of the ^ Calhoun's Works, voL I, p. 113. 
 
 Slave Power in America, voL I, '6 WaU. 35, reversing Ex parte 
 
 p. 578; The Cynosure, ISprague, 88; Crandall, 1 Nev. 394. Conf, Op. 
 
 The Ship William Jarvis,lSprague, C. J, Taney in Smith v. Turner, 7 
 
 485; The Wilson, 1 Brook. 433; Va- How. 383, 464 
 lidity of the South Carolina Police 
 
38 HISTOET OF THE COMMEEOE OLATJSE. 
 
 because forbidden by one or two clauses of the Constitution, 
 but because at variance with the spirit of the whole instru- 
 ment. 
 
 The government of the United States has the right to caU 
 for the service of its citizens wherever within its territory it 
 may need them. If the exercise of this right were dependent 
 upon the pleasure of a State, it would be within the power 
 of that State to prevent administration of the Federal gov- 
 ernment within its limits and seriously to embarrass its opera- 
 tion in other places. If, for example, Tennessee had been 
 able, during the Civil War, to levy a tax on every person 
 entering or leaving the State, the treasury of the United 
 States would not have been sufficient to pay the tax neces- 
 sary to enable its armies to pass through the State. 
 
 As the Federal goverimient has the right to maintain its 
 operation throughout the whole territory which it covers, so 
 every citizen of that government has the right of appeal to 
 it wherever it exists. He has a right of access to its capital, 
 its seaports, sub-treasuries, land offices and courts, and this 
 right is independent of the wiU of any State over whose soil 
 he must pass in its exercise. 
 
 It was a long step toward a new establishment of com- 
 mercial powers when this opinion was rendered, — a step 
 toward the creation of powers which should be free from 
 the restrictions with which the South had, until the war, 
 endeavored to check the national expansion of the Constitu- 
 tion, and yet CrcmdcM v. Nevada in terms applied only to 
 interstate travel. It remained for the case of the State 
 Freight Tax,^ in 1872, to extend the same rule to the trans- 
 portation of merchandise from State to State. The Cran- 
 daU case held, it is said, " that a State cannot tax persons 
 for passing through or out of it. Interstate transportation 
 of passengers is beyond the reach of a State legislature. 
 And if State taxation of persons passing from one State to 
 another, or a State tax upon interstate transportation of pas- 
 sengers is unconstitutional, a fortiori, if possible, is a State 
 
 1 15 WalL 233, 281. 
 
HISTOET 01" THE COMMEEOE CLAUSE. 39 
 
 tax upon tlie carriage of mercliandise from State to State 
 in conflict with the Federal Constitution." 
 
 It is probably true, as has often been said, that the Oran- 
 dall case stood alone, at the time of its decision, in the method 
 of construction which it applied to the Constitution; but since 
 that time its influence may be seen in many decisions of the 
 Supreme Court upon the Federal commercial powers. 
 
 Two years after this case came the Fourteenth Amend- 
 ment, adopted in 1868, providing that: 
 
 "AU persons born or naturalized in the TJnited States, and 
 subject to the jurisdiction thereof, are citizens of the United 
 States and of the State wherein they reside. No State shall 
 make or enforce any law which shall abridge the privileges 
 or immunities of citizens of the United States; nor shaU any 
 State deprive any person of life, liberty, or property, without 
 due process of law, nor deny to any person within its juris- 
 diction the equal protection of the laws." 
 
 The fundamental rights of the citizen, iuoludiiig the right 
 of travel and transportation and the right to engage iu com- 
 merce,^ are by this amendment put within the protection of 
 the Federal Constitution. 
 
 This provision includes, withiu the wide field of its opera- 
 tion, much of the ground covered by the clause of the Con- 
 stitution which gives to citizens of each State the privileges 
 and immunities of citizens of the several States.^ It was con- 
 sidered at an early day that among the rights thus secured 
 are " the right of a citizen of one state to pass through, or 
 reside in any other state, for the purposes of trade, agricul- 
 ture, professional pursuits, or otherwise;" . . . "to take, 
 hold and dispose of property, either real or personal; and an 
 exemption from higher taxes or impositions than are paid by 
 other citizens of the States." ' 
 
 The radical differences in the social systems of the differ- 
 ent States before the Civil War, and the extent to which the 
 
 1 Joseph V. Randolph, 71 Ala. 499; « Art. IV, sec. 3. 
 Ward T. Maryland, 13 Wall 418, = Corfleld v. Coryell, 4 Wash. 0. C. 
 430 ; Allgeyer v. Louisiana, 165 U. S. 371, 381. 
 578. Conf. Shepperd v. Commission- 
 ers of Sumter County, 59 Ga. 585. 
 
40 HISTOET OF THE COMMEECE CLAUSE. 
 
 ■ doctrine of State sovereignty was establislied, led to a practi- 
 cal repudiation of this provision of the Constitution. Some 
 free citizens of Northern States were denied the right to 
 enter Southern States, and the Southern planters coming 
 North with their slaves found that in the North their prop- 
 erty right was denied. This collision was inevitable. A 
 provision giving to citizens of each State the rights of citizens 
 of all the other States can only be effectual when the rights of 
 citizens of the several States are substantially similar. Such 
 a clause cannot give in Illinois to a citizen of Alabama 
 rights which Illinois lawfully denies to her own citizens.'^ 
 
 The great social and political change which resulted from 
 the war made necessary, among other constitutional changes, 
 some reinstatement in the Constitution of the clause which 
 secured equal rights to aU citizens; and this was done by the 
 Fourteenth Amendment.^ 
 
 Trom the foregoing reAdew, it appears that the Federal 
 power over commerce arises in three ways : 
 
 First, from the express provisions of the Constitution re- 
 lating to commerce, including the commerce clause and other 
 grants of power upon related subjects. 
 
 Second, from the whole Constitution as construed in the 
 case of OrcmdaU v. N&oada^ and the case of the State Freight 
 Tax* 
 
 Third, from the clause of the Constitution which gives 
 citizens of each State the rights of citizens in the several 
 States, and from the Fourteenth Amendment. 
 
 Difference Between the Three Grants of Power. — The 
 ground covered by each of the three grants of power thus 
 made is somewhat different. 
 
 The Federal power over travel and transportation, result- 
 ing from the construction of the Constitution in Cramdall v. 
 
 1 See Lemmon v. People, 26 Barb. Jtuie 5, 1866, Congressional Globe, 
 270 ; 30 N. Y. 563. 1st Sess. 39th Cong., pt. 4, p. 2961. 
 
 * See Speech of Senator Poland, s e WaU. 35. 
 
 4 15 Waa 232, 281. 
 
HISTOET OF THE OOMMBEOE CLAUSE. 41 
 
 If&oada, is based upon rigMs and duties of citizens and of 
 the government; and wMe it appears to have been extended 
 over transportation conducted by corporations,^ and would 
 doubtless protect all persons, -whether citizens or aliens, never- 
 theless the argument concerns only the rights and duties of 
 citizens and of the Federal government. 
 
 The Fourteenth Amendment, and the article in the Con- 
 stitution "which preceded it, protect also the rights of citizens, 
 although the amendment goes beyond the provision of the 
 article in securing to all persons within the jurisdiction of 
 a State, whether citizens, corporations or aliens, the equal 
 protection of the laws.'' K"either of these grants of power 
 is necessarily commercial in its nature, nor, so far as it con- 
 cerns travel and transportation, is it limited in its operation 
 to the transportation which crosses State lines. 
 
 It is the intention in this work to consider only the Fed- 
 eral power which arises from the commerce clause, taking- 
 into view other constitutional powers only so far as they f aU 
 within and operate upon the ground covered by that clause. 
 
 Difference Between Foreign, Indian and Interstate Com- 
 merce. — In considering the Federal power derived from the 
 commerce clause, it should be noticed that the Federal ju- 
 risdiction over the three branches of commerce differs widely 
 in nature and extent. 
 
 Interstate commerce is national, while foreign commerce 
 is international in character. Over interstate commerce the 
 powers of the Federal government are not limited by any 
 other governmental authority, while over foreign commerce 
 Federal power is necessarily limited by the equal power of 
 the foreign government.' 
 
 1 Case of the State Freight Tax, 137 IT. S. 205; Pembina Mining Co. 
 15 WalL 233, 281, v. Pennsylvania, 125 U. S. 181;. 
 
 2 Smyth V. Ames, 169 U. S. 466, Santa Clara v. Eaibroad Co,, 11& 
 171 U. S. 361; Covington, etc. Turn- U, S. 394; Stockton v. Railroad Co,,, 
 pike Co. V. Sandford, 164 U, S. 578, 32 Fed. Eep, 9, 
 
 592; Railroad Co. v. Beckwith, 129 3 United States v. Knight, 3 Int. 
 U. S, 26; Railway Co. v, Mackey, Com, Rep. 801. 
 
42 HISTOET OF THE COMMEEOE CLAUSE. 
 
 In interstate commerce the power of the Federal govern- 
 ment is always limited by the constitutional rights of citi- 
 zens, while in foreign commerce conducted by aliens these 
 limitations do not always appear. 
 
 The Federal control over commerce with the Indian tribes 
 is of a different character, and has been exercised to an ex- 
 tent which would be impossible in either foreign or inter- 
 state commerce. 
 
 The power over these three branches of commerce being 
 granted in the same clause and in the same terms might, if 
 taken literally, be understood as being of the same character 
 and extent. It does not appear, however, that this was the 
 intention of the framers of the Constitution,^ and certainly 
 the history of the exercise of these powers emphasizes the 
 necessary difference between them, 
 
 1 Speech of Senator Morgan, Con- to Cabell, Feb. 13, 1839; The James 
 gressional Eecord, May 28, 1890. Madison Letters, voL 4, p. 14 
 ■Conl, however, Letter of Madison 
 
CHAPTEE II. 
 
 DEFINITIONS OF COMMERCE. 
 
 Commerce, as the word is used in the Constitution, has re- 
 ceived the broadest definition. 
 
 It includes not only traffic, but every species of commer- 
 cial intercourse among the States.^ It " is a term of the 
 largest import," and " includes intercourse for the purposes 
 of trade in any and all its forms." ^ 
 
 " In Webster's Unabridged Dictionary ' commerce ' is de- 
 fined as ' the exchange of merchandise on a large scale be- 
 tween different places or communities.' This embraces two 
 distinct ideas: First, that of exchange in its largest sense, in- 
 cluding barter, — the giving of one commodity for another; 
 and sale, — the exchange of an article of property for money, 
 the representative of aU values. From this definition it will 
 be seen that there can be no commerce unaccompanied by 
 exchange or sale. The other idea embraced in the defini- 
 tion is that of transportation; for, to constitute commerce, 
 the exchange must be between different places or communi- 
 ties ; and any law that either prevents the transportation or 
 sale of merchandise totally destroys commerce by the exer- 
 cise of that power alone. Commerce, then, involves the 
 idea of carrying the commodity intended for exchange to 
 another place, where, as we may say, the market is to be 
 held, and the sale accomplished. Hence, -without both trans- 
 portation and liberty of sale, there can be no interstate com- 
 
 1 Marshall, C. J., in Gibbons v. ball, 102 U. S. 702; Kidd v. Pearson, 
 Ogden, 9 Wheat. 1, 190, 194 128 U. S. SO; Case of State Freight 
 
 2 Welton V. Missouri, 91 U. S. 280. Tax, 15 WalL 275; Corfield v. Cor- 
 As to the word " intercourse," see 7 yeU, 4 Wash. C. C, Eep. 379; Erie 
 How. 492, 517. As to the word " com- E. R Co. v. State, 2 Vroom, 531. 
 merce," see 7 How. 501. For an- 'Harvey v. Huffman, Circ. Ct. 
 other definition, see Mobile v. Kim- Porter Co., Ind., cited in 89 Fed. 
 
44 DEFINITIONS OF COMMEKOE. 
 
 Transportation an Essential Element — Commerce is the 
 interchange of goods or property of any kind between na- 
 tions or indiyiduals. Transportation is the means by which 
 commerce is carried on ; without transportation there could 
 be no commerce between nations or among the States.^ 
 
 In every case which has been held to be within the con- 
 stitutional grant to Congress, actual transportation, either 
 of persons or property, appears to be the characteristic of 
 foreign commerce and of commerce among the States.^ 
 
 Transportation for Other Purposes than Trade. — It has 
 
 already been shown that the right of travel and transporta- 
 tion is one of the rights of citizenship protected by the Fed- 
 eral Constitution. The right to navigate public waters of 
 the United States is secured by the admiralty jurisdiction, 
 without reference to the purpose for which the navigation 
 is conducted ; ' and the right of free movement, whether by 
 land or water, is one of the elements of personal liberty se- 
 cured by the Fourteenth Amendment. 
 
 It follows, therefore, that the Federal power extends over 
 all travel and transportation among the States, whether con- 
 ducted for purposes of trade or not, and to a certain extent 
 protects also the travel and transportation which is within 
 the limits of a single State. 
 
 The extent to which this protection goes varies somewhat 
 with the circumstances of each case. There may be in- 
 stances of a mechanical crossing of State lines in which the 
 
 Eep. 646, 648 ; United States v. Gas- 470 ; Erie R. R. Co. v. State, 3 Vroom, 
 
 siday, 67 Fed. Eep. 698, 705. 531; "WeUs, Fargo & Co. v. North- 
 
 1 Steamship Co. v. Pennsylvania, em Paciflc Ry. Co., 23 Fed. Rep. 469, 
 
 133 U. S. 336-339; Council BlnflEs v. 476; State v. Indiana, etc. Co., 120 
 
 Kansas City, etc. R R. Co., 45 Iowa, Ind. 575; Board of RaUroad Com- 
 
 338. missioners v. Railroad Co., 32 S. C. 
 
 2VonHolst, Const. Law of U.S., 320; People v. Raymond, 34 CaL 
 
 p. 138 ; United States v. E. C. Knight 493 ; Council Bluffs v. Railroad Co., 
 
 Co., 156 U. S. 1 ; Philadelphia, etc. S. 45 Iowa, 338. 
 
 S. Co. T.Pennsylvania, 122 U.S. 339; » United States v. Ferry Co., 31 
 
 Railroad Co. v. Husen, 95 U. S. 465, Fed. Rep. 833. 
 
DEFINITIONS OF COMMBECE. 45 
 
 act of transportation is so purely incidental, and auxiliary 
 to other purposes, that the relation to commerce is slight. 
 Such, for instance, in some of its aspects, was the Kansas 
 City Stock Yards case.^ In this case the stock yards were 
 located on both sides of the State line, and in the handling 
 of stock some were driven across the line, and perhaps re- 
 turned again, as might be convenient for watering, feeding 
 or removing from the pens. Even in this case the transpor- 
 tation was undoubtedly within Federal protection. Neither 
 State in which the yards were partially located might pro- 
 hibit the company from so using its property, or from driv- 
 ing the cattle back and forth across the line, but in most of 
 its relations the business was local in character and purpose; 
 and State regulations which could hardly have been sus- 
 tained where transportation was the principal purpose, have 
 been sustained in application to this business. So a herd of 
 cattle, if brought within a State on their way to another 
 State, are within the Federal power; but if they are brought 
 within a State to graze, and if their motion is such only as 
 is incidental to their grazing, the power of the State is not 
 excluded.^ 
 
 It has been held that making up and sending out a train 
 of empty cars for the purpose of bringing goods into the 
 State is not commerce, but is an operation performed with 
 the intention of engaging in commerce; ' this decision is, 
 however, at variance with the weight of authority. 
 
 The purchase, sale and exchange of commodities and the 
 embarkation and disembarkation of passengers, when ac- 
 companied by transportation from State to State, is undoubt- 
 edly a part of interstate commerce.* 
 
 1 Getting V. Kansas City Stock * Welton v. Missouri, 91 U. S. 380 
 Yards, 79 Fed. Rep. 679, 83 Fed. Mobile v. Kimball, 103 U. S. 703 
 Eep. 850. Head Money Cases, 113 U. S. 580 
 
 2 KeUey v. Rhoads, 51 Pao. Eep. Lin Sing v. Wasbbum, 30 CaL 534 
 593. Sweatt v. Boston, etc. R Co., 3 
 
 3 Norfolk & Western R. R. Co. v. CHfE. 339. 
 Commonwealth, 93 Va. 749. 
 
46 DEFINITIONS OF COMMEECE. 
 
 TelegrapTis and Telepliones. — The telegraph and telephone 
 have been held to be instruments of commerce, both because 
 they practically engage in transportation, and also because 
 they are so intimately connected with commerce as now con- 
 ducted that they are essential thereto.^ 
 
 Ba/nking and Insurance. — On the other hand, where there 
 has been no transportation, it has been held that " commerce " 
 did not exist. 
 
 In Naihwn, v. Lowisicma ^ it was said that a broker dealing 
 in foreign biUs of exchange was not engaged in commerce, 
 but, like a ship builder, was engaged in supplying an instru- 
 ment of commerce.' 
 
 So in I'aul v. Ywgmia * the court held that issuing a policy 
 of insurance was not a transaction of commerce.'' " The poli- 
 cies are simple contracts of indemnity against loss by fire, 
 entered into between the corporation and the assured, for a 
 consideration paid by the latter. These contracts are not 
 articles of commerce in any pro'per meaning of the word. 
 They are not subjects of trade and barter offered in the market 
 as something having an existence and value independent of 
 
 1 Telegraph Co. t. Alabama, 133 Nev. 103; lure Pennsylvania Tele- 
 
 U.S.473;Leloupv.MobUe,137U.S. phone Co., 48 N. J. Eq. 91; Tele- 
 
 640; Telegraph Co. v. Pendleton, graph Co. v. Tyler, 90 Va. 297; 
 
 133 U. S. 347, 356; Telegraph Co. v. Telegraph Co. v. Telegraph Co., 3 
 
 Texas, 105 TJ. S. 460; Telegraph Co. Woods, 643. 
 
 V. Telegraph Co., 96 U. S. 1; Mer- "s How. 73. 
 
 cantile Trust Co. v. Atlantic & P. ^ gee Ex parte Martin, 7 Nev. 140; 
 
 E. Co., 63 Fed. Eep. 513; Moore v. Tillson v. Catling, 60 Ark. 114; Bam- 
 
 City of Eufala, 97 Ala. 670; Ameri- berger v. Schooliield, 160 U. S. 149; 
 
 can Union Telegraph Co. V. "Western State v. Nathan, 13 Bob. (La.) 3S3. 
 
 Union Telegraph Co., 67 Ala. 26; < 8 Wall 168. 
 
 City, etc. of San Francisco v. West- ' Congress appears, however, to 
 
 em Union Telegraph Co., 96 CaL have considered that it was within 
 
 140; Central Union Telephone Co. its power to incorporate associa- 
 
 V. State, 118 Ind. 194; Chicago, etc. tions "having two or more branches 
 
 Bridge Co. v. Pacific Telegraph Co., in the States or Territories," for the 
 
 36 Kan. 113; Union Trust Co. v. purpose, among others, of mutual 
 
 Atchison, etc. R. Co., 8 N. Mex. insurance. Act of June 39, 1886, 
 
 339; Western Union Telegraph Co. 24 Stat. L. 86; Supp. Rev. Stat., ch. 
 
 T. Atlantic, etc. Telegraph Co., 5 567, p. 498. 
 
DEFINITIONS OF COMMEECE. 47 
 
 the parties to them. They are not commodities to be shipped 
 or forwarded from one State to another, and then put up for 
 sale." . I , " The policies do not take effect — are not executed 
 contracts — untO. delivered by the agent in Yirgtaia. They 
 are, then, local transactions, and are governed by the local 
 law. They do not constitute a part of the commerce be- 
 tween the States any more than a contract for the purchase 
 and sale of goods in Virginia by a citizen of New York 
 whilst in Yirgtaia would constitute a portion of such com- 
 merce." ^ A similar opinion was expressed by the House of 
 Lords ia the case of the CiUsens' Insv/rcmce Co. v. Pa/rsons? 
 The question in this case concerned the validity of a regula- 
 tion of insurance business by the Province of Quebec, which, 
 by the provisions of the British North America Act, is with- 
 out jurisdiction over inter-proviucial regulation of trade and 
 commerce. The court says that the business of insurance, 
 " when carried on for the sake of profit, may, no doubt in 
 some sense of the word, be called a trade, but contracts of 
 indemnity made by insurers can scarcely be considered trad- 
 ing contracts, nor were insurers who made them held to be 
 ' traders ' under the English bankruptcy laws." 
 
 That the business of insurance is not included within the 
 meaning of the word " commerce " is perhaps clearer than 
 that the regulation of foreign and interstate bills of ex- 
 change is not so included. Mj£. Hamilton, in his argument on 
 the National Bank,' enumerates among those subjects over 
 
 1 Conf. Cooper Mfg. Co. v. Fergu- Insurance Ca v. Harrah, 47 Ind. 
 
 son, 113 TJ. S. 737, where transpor- 236; State v. Phipps, 60 Kan. 609; 
 
 tation was contemplated by the List v. Pennsylvania, 118 Pa. St. 
 
 contract; AUgeyer v. Louisiana, 332; Insurance Co. v. Common- 
 
 165 U. a 578, reversing 48 La. Ann- wealth, 87 Pa. St. 173; Bank of Au- 
 
 104; Hooper v. CaUfomia, 155 U. S. gusta v. Earl, 18 Pet. 519; Memphis 
 
 648; Philadelphia Fire Ass'nv. New v. Carrington, 91 Tenn. 511. 
 York, 119 U. S. 110; People v. In- 2 7 L. B. App. Cas. Ill; Parsons 
 
 surance Co., 27 Hun, 188. See also v. Queen Insurance Co., 4 Up. Can. 
 
 Ducat v. Chicago, 10 "WalL 410; App. 103; 4 Can. S. C. 215. 
 Liverpool Insurance Co. v. Massa- ' Hamilton's Works, edited by 
 
 chusetts, 10 "WaU. 566; People v. Lodge, voL III, pp. 179, 203. 
 Thurber, 13 HL 554; Farmers', etc. 
 
48 DEFINITIONS Or COMMEEOE. 
 
 •wliich. it admits of but little, if any, doubt that the national 
 power extends, the regulation of policies of insurance, — re- 
 ferring probably to marine iasurance, — of bills of exchange 
 drawn by a merchant of one State upon a merchant of an- 
 other, and, of course, the regulation of foreign bills of ex- 
 change. 
 
 It seems, in view of the remarkable development of the 
 banking system within the past fifty years, and its impor- 
 tance in relation to commerce, that the regulation of inter- 
 state and foreign bUls of exchange might in time fall withia 
 the Federal commercial power. "Where such bills represent 
 payment for articles brought from other States, they may 
 perhaps be considered to bear the same rdation to the pur- 
 chase, sale and exchange of commodities that freights and 
 fares bear to their transportation. 
 
 From another standpoint, bUls of exchange may be said, 
 in their relation to transportation of money, to bear some 
 analogy to the relation which a system of free interchange 
 of cars would bear to railroad traflB.c conducted in the ab- 
 sence of such a system. It is true, both of bills of exchange 
 and of such a system of interchange of cars, that their relar 
 tion to interstate transportation is in that they make such 
 transportation to some extent unnecessary; and yet a State 
 may not forbid this free interchange of cars, because to do 
 so would place a new burden upon commerce among the 
 States. 
 
 To say that an interstate biU of exchange is merely evi- 
 dence of the transfer of title to personal property located in 
 another State is not only to ignore the fact that money, as 
 the circulating medium, is essential to aU commerce, but 
 when sustataed the argument seems to prove too much. If 
 the bill of exchange be merely evidence of indebtedness in 
 another State, it may be taxed at the discretion of the State 
 within which it is drawn ;^ and it might, therefore, be pro- 
 hibited by the State; for "questions of power do not depend 
 on the degree to which it may be exercised." * If this could 
 
 1 Kirtland v. Hotohkiss, 100 U. S. '^ Brown v. Maryland, 13 Wheat. 
 491. 439. 
 
DEFINITIONS OF COMMEEOE. 49 
 
 be done, th.e statement that no burden could be placed upon 
 interstate commerce by a State would be subject to substan- 
 tial modification. 
 
 It seems possible that the rule which would be applied in 
 such a case would be that stated YuErieBanhua/y Go. v. StaU^ 
 where it was held that "whenever the taxation of a com- 
 modity would amount to a regulation of commerce, within 
 the prohibition of the Constitution, so will the taxation of an 
 inseparable incident or necessary concomitant of such com- 
 merce." 
 
 In People v. BaymoThA^ an act providing for the raising of 
 revenue from a tax upon foreign and inland biUs, and pas- 
 sengers, was held not to be in the nature of a police regulation, 
 but an attempt at the regulation of commerce, and therefore 
 void. On the other hand, in Eeprnie Ma/rim, ' a statute requir- 
 ing the fixing of revenue stamps to foreign bills of exchange 
 was held to be a legitimate exercise by the State of its power 
 of taxation. 
 
 The Authority to Define Articles of Commerce. — The ques- 
 tion, what articles are legitimate subjects of trade and com- 
 mercial intercourse, is determined by the general commercial 
 usage of the world, and does not depend upon the declara- 
 tion of any State.* 
 
 The necessity of this rule is apparent. If Congress could 
 regulate only those subjects which the States decided were 
 proper subjects of Federal regulation, the power of the States 
 would be paramount to the power of Congress. 
 
 Prevention of Fraud — Oleomargarine Ctsises-r-r-ln. Phnn- 
 ley V. Massachusetts ' the court modified this rule consider- 
 ably. In that case a State law prohibiting the sale of 
 
 131 N. J. L. 531. Fed. Eep. 615; Vandercook Ca v. 
 
 2 34CaL493. Vance, 80 Fed. Eep. 786; In re 
 
 3 7 Nev. 140. Gooch, 44 Fed. Eep. 376; SohoUen- 
 * Bowman v. Eailway Co., 1S5 U. berger v. Pennsylvania, 171 U. S. 1. 
 
 S. 465-501; Sawriev. Tennessee, 83 * 155 TJ. S. 461. For cases concem- 
 4 
 
50 DEFINITIONS OF COMMEBOE. 
 
 oleomargarine, colored to resemble butter, was sustained as 
 applied to an article imported from another State, on the 
 ground that the resemblance, artificially created, was in the 
 nature of a fraud. 
 
 It is not clear that the statute was entirely free from dis- 
 crimination. Oleomargarine is produced in comparatively 
 few places, while butter is produced in every farming com- 
 munity. The willingness of States to discriminate against 
 the importation of dressed meat is shown in many recent 
 cases in which State laws have been held unconstitutional on 
 this ground. Legislation against oleomargarine might not 
 improbably trace its origin to the same source. 
 
 In the case referred to it was conceded that the article sold 
 was " wholesome, palatable and nutritious." It was, how- 
 ever, colored to resemble butter, and this, it was held, the 
 State might prohibit, so long as the importation and sale of 
 uncolored oleomargarine was not burdened. Leisy v. Hcurdm, 
 was distinguished on the ground that in that case no fraud 
 was practiced. The beer which was the subject of sale was 
 what it appeared to be, and not a liquid artificially colored 
 to resemble beer. 
 
 From this opinion Hr. Chief Justice Fuller, Mr. Justice 
 Field and Mr. Justice Brewer dissented. " It cannot be de- 
 nied," said Mr. Chief Justice Fuller, in delivering the dis- 
 senting opinion, " that oleomargarine is a recognized article 
 of commerce." ..." The natural and reasonable effect 
 of this statute is to prevent the sale of oleomargarine be- 
 cause it looks like butter. How this resemblance, although 
 it might possibly mislead a purchaser, renders it any the less 
 an article of commerce, it is difficult to see. ... In the 
 language of Knowlton, J., in the dissenting opinion below, 
 I am not ' prepared to hold that no cloth whose fabric is so 
 carded and spun and woven and finished as to give it the 
 
 ing state power over oleomargarine S. 678; State v. Marshall, 64 N. a 
 
 in domestic commerce, see Schol- 549; People v. Arensburg, 105 N. Y. 
 
 lenberger v. Pennsylvania, 171 U. 123. 
 S. 1; PoweU v. Pennsylvania, 137 U, 
 
DEFINITIONS OF COMMEECE. 51 
 
 appearance of being wholly wool, wlien in fact it is part cot- 
 ton, can be a subject of commercial transactions, or that no 
 jewelry which, is not gold, but is made to resemble gold, and 
 no imitations of precious stones, however desirable they may 
 be considered by those who wish to wear them, shall be deemed 
 articles of merchandise in regard to which Congress may 
 make commercial regulations.' " 
 
 It is probable that the opinion of the majority in this case 
 is, as the Chief Justice said, inconsistent with settled princi- 
 ples. The distinction which it is attempted to make between 
 the Plumley case and Zeisy v. Ea/rdjm is not conTinoing. 
 The beer which was the subject of sale in Leisy v. Hcurdm, 
 was not colored, it is true; but prevention of fraud is not the 
 only purpose of State police laws. The consequences of 
 buying, even through error, a " wholesome, palatable and 
 nutritious " substitute for butter, instead of the genuine arti- 
 cle, are not worse than the consequences of disease and crime 
 which result from the general use of intosicatmg liquors. 
 
 Upon principle, the two cases of Leisy v. Sa/rdin and 
 PlAMnZey v. Massachusetts are not distingmshable ; and as con- 
 cerns the question of the authority which shall determine 
 what are subjects of commerce, the rule announced m Bow- 
 mam, V. RaAl/wan) Go., in Le/m] v. JSa/rdm, and repeated in the 
 dissenting opinion of the Chief Justice in Phtmley v. Massa- 
 cJmsetts, is the rule which is supported by a long line of de- 
 cisions of the Supreme Court and by the necessities of the 
 case. 
 
 In Armov/r PoGk/i/ng Gompa/wy v. Smyd&r ^ the argument 
 of the Plumley case was carried beyond the point sanctioned 
 by the Supreme Court, and the conclusions reached strikingly 
 illustrate the inherent difficulties of the rule. In this case 
 a State law forbidding the sale of oleomargarine, unless col- 
 ored bright pink, was applied to goods which had been 
 shipped into Minnesota from Kansas, which were marked 
 and stamped as required by the United States laws, and sold 
 only in original packages. The Federal law, it was said, 
 
 i84Fecl. Eep.136. 
 
52 DEFINITIONS OF COMMEECB. 
 
 prevented deception in the sale of the imported package 
 The State law prevented deception in the retail sale of any 
 quantity. For this purpose the requirement as to color was 
 held to be valid. " It is true," the court said, " that plaint- 
 iff's witnesses testify with great positiveness that, while oleo- 
 margarine is largely sought and purchased as an article of 
 commerce, yet, if it were colored bright pink, no sale of it 
 could be made as an article of food. And this opinion is 
 doubtless true. But there is nothing in bright pink, as a 
 color, calculated to excite repugnance or loathing. Shades 
 of color akin to it are sometimes given to jellies, ices, and 
 other articles of food, to make them more attractive, and are 
 natural to some preparations of fruit. And it does not ap- 
 pear that oleomargarine would not be equally unsalable if 
 put on the market without coloring, or with any color not 
 a close imitation of the color of dairy butter. The infer- 
 ence is that its marketable value mainly consists in the 
 facility with which those who buy it cheaper than dairy 
 butter can impose it as that article upon those who eat it 
 in the belief that it is butter, and would refuse it if informed 
 what it is in fact." 
 
 In Oollms '0. New Mamvpshyre ' this reasoning was disap- 
 proved, and it was held that, as a State cannot prohibit the 
 sale of an article of commerce, it cannot require that the 
 article should be made unsalable. 
 
 The question whether, as was said in the Snyder case, 
 the color pink is " calculated to excite repugnance or loath- 
 ing," is determined not alone by a consideration of the color 
 itself, but also of the article colored. Potatoes colored bright 
 pink throughout, or eggS colored green, would probably be 
 as unmarketable as pink oleomargarine ; and the suggestion 
 that there is nothing in either of these colors which excites 
 loathing would not justify a law requiring that they should 
 be so colored. 
 
 It is true that oleomargarine might be unsalable if put on 
 the market without coloring, and probably equally true of 
 
 1171U. S. 30, 
 
DEMNITIONS OF OOMMEEOE. 53 
 
 mnoh of the butter produced in the Northern States during 
 the winter months. . This butter is commonly colored so as 
 to present the appearance of grass butter, without which it 
 would probably find no market. It would be possible, there- 
 fore, if the legislature applied the same rule to both cases, 
 for a State to require all winter butter to be colored bright 
 pink or blue. EoUowing the same argument, the jellies and 
 ices to which the court referred in the Snyder case, such as 
 are commonly colored in shades of red, might be forbidden 
 unless colored yeUow, and the requirement might be justi- 
 fied on the ground that oleomargarine and butter are pleas- 
 ing when colored yellow, and therefore the jellies should be.^ 
 
 As a matter of fact, artificial coloring of food or cloth or 
 any other substance, so as to present the appearance of an- 
 other article, is not, in itself, fraudulent.^ Celluloid is man- 
 ufactured in such forms that it is capable, to a certain ex- 
 tent, of answering as a substitute for articles as dissimilar as 
 ivory on the one hand, and linen on the other, and the fact 
 that it is so made is not considered indicative of fraud. 
 
 There is a large class of articles of commerce in which ap- 
 pearance is as important as any other quality, and here the 
 question of color is one upon which public taste is generally 
 exacting. It is particularly true of many articles used for 
 foods, that much of their value is due to their appearance. 
 Many persons who use oleomargarine knowingly, prefer 
 that it should be colored yellow ; and there are few who 
 would be willing to eat it if colored strangely. Under such 
 circumstances it does not answer the practical requirements 
 of the situation to say that one color is as beautiful as an- 
 other, and that all are found in nature. If the State may 
 prescribe the rule which shall be followed in aU these cases, 
 and may prohibit the making of any article to resemble an- 
 other, there is at once opened a wide field of conflicting and 
 discriminating State legislation such as the Constitution in- 
 tended to prevent. 
 
 1 Conf . People v. Arensbiirg, 105 * People v. Pease, 30 CHo. Leg. N. 
 N. Y. 123; W. P. Prentice on Police 277. 
 Powers, p. 101. 
 
54 DEFINITIONS OF OOMMEECE. 
 
 In otlier cases in wliioli the police power of the State has 
 been, discussed, it is said that it is limited to the right of 
 self-defense, in -vrhich it has its origin; and that a State may 
 not by general regulations exclude articles which are act- 
 ually fit for and belong to commerce.^ Police regulations 
 which forbid the sale of one article for another, or which 
 require that the character of an article sold should be dis- 
 tinctly stated upon the package, may therefore be sustained.^ 
 Statutes which go beyond this, and obstruct the transporta- 
 tion and sale of legitimate articles of commerce, have gen- 
 erally been considered unconstitutional. 
 
 Manufacture is Not Commerce. — Neither the production 
 nor the manufacture of commodities, nor their preparation 
 for transportation, are acts of commerce. Manufacture is 
 the fashioning of raw material into a new form. Commerce 
 succeeds manufacture, and begins only when manufacture 
 is complete. That an article is made for export to another 
 State does not of itself make it an article of interstate com- 
 merce. There is hardly any large industrial or manufactur- 
 ing establishment in the country that could be carried on 
 without shipping its product from one State to another; 
 nevertheless, the manufacture is distinct and independent 
 from commerce. Otherwise Congress could regulate not 
 manufactures alone, but every branch of human industry. 
 " For is there one of them that does not contemplate, more 
 or less clearly, an interstate or foreign market ? Does not the 
 wheat grower of the Northwest, and the cotton planter of 
 the South, plant, cultivate, and harvest his crop with an eye 
 on the prices at Liverpool, New York, and Chicago ? The 
 power being vested in Congress and denied to the States, it 
 would f oUow as an inevitable result that the duty would 
 devolve on Congress to regulate aU of these delicate, multi- 
 form, and vital interests — interests which in their nature 
 are and must be, local in aU the details of their successful 
 
 1 Brimmer v. Eebman, 138 U. S. ^Conf. BreohbiU v. RandaU, 103 
 78. Ind. 528. 
 
DEFINITIONS OF COMMEEOE. 55 
 
 management." ^ It is therefore held that the fact that com- 
 modities when manufactured are intended for transportation 
 to other States or countries does not bring their manufact- 
 ure within Federal control. State laws forbidding the man- 
 ufacture^ or keeping' of intoxicating liquors, except for 
 certain purposes, have been sustained, as applied to manufact- 
 ure or keeping of liquor for shipment without the State. 
 
 Illustrations of Business Not Within Federal Control. — 
 The business of a commercial agency in procuriag and fur- 
 nishing information of the standing of merchants is not com- 
 merce, and a tax thereon is not in conflict with the commerce 
 clause.* Nor is the business of a building and loan associa- 
 tion ; ' nor of loaning money ; ' nor of dealing in foreign lands ; ' 
 or of conducting a manufacturing establishment in another 
 State ; ' or of mining ; ' or of practicing medicine in connection 
 with the sale of imported drugs ; " and the taxation of legacies 
 payable to aliens has no relation with commerce." In the 
 case of a peddler selling lightniug rods brought from another 
 State, the business of erecting the rods is not commerce, and 
 is subject to State regulation.^ 
 
 Gambling. — The protection of the Constitution does not 
 extend to lotteries, games of chance or speculation. These 
 may be interstate gambling, but are not commerce. A State 
 
 1 Kidd V. Pearson, 128 U. S. 1-31. Co., 93 AJa. 157; Huffman v. West- 
 2Kidd Y. Pearson, 138 tJ. S. 1; ern Mortgage & Investment Co., 13 
 United States v. E. C. Knight Co., Tex. Civ. App. 169. 
 156 U. S. 1, 60 Fed. Rep. 934; Mug- ^ Honduras Commercial Co. v. 
 ler V. Kansas, 133 U. S. 633; United State Board, 54 N. J. L. 378. 
 States V. Boyer, 85 Fed. Rep. 435; 8 standard Cable Co. v. Attorney- 
 Pearson V. Distillery, 73 Iowa, 348; General, 46 N. J. Eq. 370; State v. 
 Treadway v. Riley, 33 Neb. 495; Cable Co., 18 AtL Rep. 581. 
 State V. LoveU, 47 Vt. 493. 9Utley v. Gardner Lode Mining 
 'State V. Fitzpatrick, 16 R L 54 Co., 4 Colo. 369. 
 
 * State v. Morgan, 3 S. D. 33. lo State v. Wheelook, 95 Iowa, 577. 
 
 * Southern Bmlding & Loan As- u Mager v. Grima, 8 How. 490. 
 Booiation v. Norman, 98 Ky. 394 instate v. Gorham, 115 N. C. 73L 
 
 6Nelms V. Edinburg Mortgage 
 
56 DEFINITIONS OF COMMEECE. 
 
 may regulate or prohibit buying and selling wbat are com- 
 monly known as "futures;"* may prohibit tbe sale of lot- 
 tery tickets or of bonds containing conditions which make 
 their value dependent upon chance ; * it may forbid the sale 
 of pools on horse-races conducted without the State, although 
 not forbidden as to races conducted within the State;' and 
 may forbid the sending of money without the State for gam- 
 bling purposes.* 
 
 By the act of September 19, 1890,' it is provided that 
 letters and circulars concerning lotteries or other similar en- 
 terprises whose profits depend upon chance, or concerning 
 schemes devised to obtain money under false pretenses, news- 
 papers containing advertisements of such enterprises, and 
 money for the purchase of lottery tickets, etc., are aU ex- 
 cluded from the United States mails. 
 
 Infected Goods, Criminals, etc. — Articles which from their 
 nature do not belong to commerce are, for that reason, sub- 
 ject to the police power of the State. Disease and pesti- 
 lence, crime and pauperism, are not legitimate subjects of 
 commerce,^ and passengers, goods or animals infected with 
 disease, or passengers who are convicted criminals or pau- 
 pers, idiots, lunatics, or persons Likely to become a public 
 charge, may, it seems, be excluded by the States,' or, when 
 they are admitted, their transportation within the State 
 may be regulated. Thus, it is held that a State may forbid 
 
 »Fortenbuiyv. state, 47 Ark. 188; Co. v. Husen, 95 U. S. 465, 471; 
 
 Alexander v. State, 86 Ga. 246. Commissioners of Immigration v. 
 
 2 Ballock V. State of Maryland, 73 Brandt, S6 La. Ann. 29. 
 Md.l;Eosellev.McAiiliiBfe,39S.W. 'Bowman v. Eailway Co., 125 
 Rep. 274. U. S. 465, 492; Missouri, etc. B. Co. 
 
 3 State V. Stripling, 113 Ala. 130. v. Haber, 169 U. S. 613; Kimmish 
 
 * Lacey v. Pakner, Sheriff, 93 Va. v. Ball, 129 U. S. 217 ; Steamship Co. 
 159; State v. Harboume (Conn.), 40 v. Louisiana, 118 U. S. 455; Guy v. 
 AtL Rep. 179. Baltimore, 100 U, S. 443; Railroad 
 
 sSupp. U. S. Rev. Stats., ch. 908, Co. v. Husen, 95 U. S. 465; In re 
 
 p. 803; In re Rapier, 143 U. S. 110. Ware, 53 Fed. Rep. 783; In re Bar- 
 
 * License Cases, Opinion of Chief ber, 39 Fed. Rep. 641; Swift v. Sut- 
 Justice, 5 How. 504, 576; Leisy v. phin, 39 Fed. Rep. 630; Missouri, 
 Hardin, 135 U. S. 100, 113; Railroad etc. R. E. Co. v. Finley, 38 Kan. 550. 
 
DEFINITIONS OF COMMEKCB. 
 
 57 
 
 the entrance of Southern cattle liable to communicate Texas 
 fever unless carried in cars under certain precautions.^ 
 
 The Federal government has expressly recognized the right 
 of the States to regulate the introduction and transporta- 
 tion of nitro-glycerine and other high explosives within their 
 limits,^ although in the absence of such a provision it "would 
 doubtless be withia the power of a State to act upon the 
 subject so far as necessary to protect persons and property.* 
 The States may also take necessary steps for protection 
 against physical and moral pestilence ; and, while acting in 
 good faith to this end, may decide upon the fact whether 
 the goods or passengers are thus infected.* 
 
 So a State may impose a license tax for the purpose of ex- 
 cluding an obscene paper.' Indecent publications and arti- 
 cles are excluded from the mails ; ' their transportation from 
 State to State,'' and importation from foreign countries,' is 
 forbidden by Federal statute, and they are generally pro- 
 hibited by State laws. So a corpse is not property nor a 
 legitimate subject of commerce.* The transportation or ex- 
 portation of cattle, sheep and other ruminants and their 
 meat, diseased, or which have been exposed to infection, is 
 forbidden by the Federal statutes ; " but in the absence of 
 such a statute, or upon subjects not covered by its provision, 
 the States may take such measures as are necessary for their 
 protection. 
 
 1 Grimes v. Eddy, 126 Mo. 168. ^Act of Feb. 8, 1897, 29 Stat. L., 
 See post, pp. 170-174. p. 512. 
 
 2 U. 8. Ilev. Stats., sec. 4380. 8 Act of Aug. 27, 1894, 28 Stat. L. 
 ' See Patterson v. Kentucky, 97 549; Act of July 34, 1897, First Ses- 
 
 U. S. 501. sion 65th Cong., p. 208. 
 
 ^ See cases cited in note 7, p. 56. » In re Wong Yung Quy, 6 Sawy. 
 
 Opinion of Mr. Justice Catron in 442. See Mayor of New York v. 
 
 License Cases, quoted in In re Eah- Ferguson, 23 Hun, 594. 
 
 rer, 140 U. S. 545, 657; Preston v. "Act of May 29, 1884, 23 Stat. L. 
 
 Finley, 72 Fed. Eep. 850. 31; Supp. Eev. Stat. 435; Act of 
 
 » Preston v. Finley, 73 Fed. Eep. March 3, 1891, 26 Stat. L. 1089 ; Supp. 
 
 860. Eev. Stat. 937. See Act of Aug. 30, 
 
 ^ActofSejpt. 36, 1888, Supp. U.S. 1890, 26 Stat L. 414; Supp Rev. 
 
 Eev. Stat., p. 621. Stat. 794 
 
58 DEFINITIONS OF COMMEEOB. 
 
 It is common, also to prohibit the sale of milk below a cer- 
 tain standard of quality, of adulterated articles, and of jew- 
 elry by peddlers; and these statutes have been sustained as 
 police regulations for prevention of fraud.' 
 
 Limitation upon State Jurisdiction. — It is to be remem- 
 bered, however, as was said in the Bowman case, that " all 
 these exertions of power are in immediate connection with 
 the protection of persons and property against noxious acts 
 of other persons, or such a use of property as is injurious to 
 the property of others." ^ The power of the State over such 
 matters is limited by the right of self-defense, in which it has 
 its origin.' It " can only arise from a vital necessity for its 
 exercise, and cannot be carried beyond the scope of that 
 necessity." * Nor imder a general classification may a State 
 exclude articles that are actually fit for and belong to com- 
 merce.* For this reason it was imdecided in Mmd&r&on v. 
 The Mayor, eto.^ whether a State, in the exercise of its police 
 power, could go so far as to exclude paupers and criminals. 
 Where the evil apprehended by the State from the ingress 
 of foreigners is that they will disregard the laws of the State, 
 the remedy lies in the more vigorous enforcement of the laws, 
 not in the exclusion of the parties. If persons not convicts 
 could be forbidden to land and to reside in the State, or to 
 pass through into other and interior States, a door would be 
 opened to all sorts of oppression. A statute which obstructs 
 the entrance into the State of persons who are neither pau- 
 
 1 Commonwealth v. Waite, 11 * Chy Luag v. Freeman, 93 U. S. 
 
 Allen, 364; Commonwealth v. Far- 375, 380; Salzensteln v. Mavis, 91 
 
 ren, 9 Allen, 489; Commonwealth IlL 391. 
 
 V. Evans, 133 Mass. 11; Common- 5 Brimmer v. Eebman, 138 U. S. 
 
 wealth V. Holt, 146 Mass. 513; Com- 78; State v. Barber, 136 U. S. 313; 
 
 mon wealth v. Wetherbee, 153 Mass. In re Ware, 53 Fed. Rep. 783; State 
 
 159; State V. Campbell, 64 N. H. 403; v. Duckworth (Idaho), 51 Pao. Eep. 
 
 State V. Smythe, 14 E. L 100; Peo- 456; Health Dept. v. Purdon, 99 
 
 pie V. West, 106 N. Y. 393; Sohollen- N. Y. 337. 
 
 berger v. Pennsylvania, 171 tJ. S. 1. « 93 U. S. 359; Chy Lung v. Free- 
 
 2 135 U. S. 493. man, 93 U. S. 375; In re Ah Fong, 
 
 3 In re Ah Fong, 3 Sawy. 145. 3 Sawy. 145. 
 
DEFINITIONS OF OOMMEEOE. 59 
 
 pers, vagabonds or criminals, or in anywise unsound in body 
 or mind, is not an exercise of the police power in any just 
 sense of that term.^ 
 
 Articles in sucb condition that they tend to spread disease 
 are not legitimate subjects of trade and commerce; ^ and the 
 laws which require precautions necessary to protect the 
 health of the public are no more regulations of commerce 
 than statutes which permit their importation are quarantine 
 laws.' Any means employed by a State in good faith, ap- 
 propriate to the protection of its people, and not in violation 
 of any Federal law or treaty, is therefore within State au- 
 thority. Further limitations than these, being largely based 
 upon political considerations, should arise from the action of 
 Congress rather than from the decisions of the courts. 
 
 Police Power of Congress. — The power of commercial regu- 
 lation which is given to Congress casts upon that body the 
 duty of police regulation of such commerce. The fact that 
 the States are in large measure deprived of powers to exclude 
 from their territory persons and property which they con- 
 sider hostile to their interests, requires that the Federal gov- 
 ernment should be prompt in its effort to give full measure 
 of protection. 
 
 This jurisdiction has been exercised by laws prohibiting 
 transportation from State to State of articles intended for 
 indecent purposes, by regulation of transportation of explo- 
 sives, of live-stock, and in many other ways. 
 
 The limitations upon the powers of the State to enact police 
 laws find a parallel also in the Umitations upon the power of 
 Congress in this respect. Neither a State nor the United 
 States can, under the police power, deprive a citizen of the 
 right to transport a proper article of commerce from one 
 State to anotheip, nor impose conditions upon the exercise of 
 that right except as may be necessary to secure the freedom 
 or proper conduct of commerce. 
 
 1 State V. Constitution, 42 CaL 579. ' Gibbons v. Ogden, 9 Wheat 335. 
 
 2 Leisy v. Hardin, 135 U. S. 100. 
 
OHAPTEE ni. 
 
 DISTINCTION BETWEEN DOMESTIC AND INTERSTATE COM- 
 MERCE. 
 
 The business of transportation and the instrnmentalities 
 connected therewith come within the control of Congress, 
 when the traffic is " among the several States," and this phrase 
 includes Territories also.' "'Among' means 'intermingled 
 with.' . . . Commerce among the States cannot stop at the 
 external boundary line of each State, but may be introduced 
 into the interior." ^ Of course, aU commerce which is carried 
 on entirely within the limits of a State, and does not extend 
 to or affect other States, is, with the single exception of trade 
 with the Indian tribes,' outside of Federal control.* 
 
 The subject of interstate commerce may conveniently be 
 considered, in the first place, in connection with the goods 
 carried; in the second place, in connection with the carrier; 
 and in the third place, with regard to Federal jurisdiction 
 over the public navigable waters of the United States. 
 
 Eelation of Commeece to the Goods Caueied. 
 
 "Whenever an article of commerce has begun to move 
 from one State to another, commerce in that commodity 
 
 1 Stoutenburgh v. Hennick, 129 * Gibbons v. Odgen, 9 Wheat. 1; 
 U. S. 141 ; Ex parte Hanson, 28 Fed. Sands v. Improvement Co., 123 U. S. 
 Rep. 127; The Louisa Simpson, 2 288; Louisville, etc. Ry. Co. v. Mis- 
 Sawy. 57. sissippi, 133 U. S. 587: Trade-mark 
 
 2 Gibbons v. Ogden, 9 Wheat. 1; Cases, 100 U. S. 82, 96; License Tax 
 Brown v. Maryland, 12 Wheat. 446, Cases, 5 Wall 462, 470; Dugan v. 
 447; Endleman V. United States, 86 State, 125 Ind. 130; Heiserman v. 
 Fed. Rep. 456. Railroad Co., 68 Iowa, 732. Conf. 
 
 'United States v. Holliday, 8 Soammon v. Kansas City, etc. R. 
 Wall 407; United States v. Forty- Co., 41 Mo. App. 194. 
 three Gallons of Whiskey, 93 U. S. 
 188. 
 
DOMESTIC AND INTEESTATE COMMEKCE. 61 
 
 among the States has commenoed.^ If such transportation 
 actually be carried on, the motive with which it is done is 
 immaterial, even though it be to escape from the operation 
 of State laws.** 
 
 When Federal Control of Commerce Begins. — In gen- 
 eral terms it may be said that Federal control of commerce 
 begins as soon as the subjects or operations of commerce are 
 subjected to burdensome, conflicting or discriminating State 
 legislation. In the absence of such considerations, interstate 
 commerce commonly begins with negotiations and contracts 
 looking to transportation among the States.' 
 
 It has been suggested that, if goods are intended for trans- 
 portation to a foreign country, they come within the Federal 
 jurisdiction so far as to be subject to Federal regulation of 
 trade-marks ; * but, with this possible exception, it is held that 
 an intention to ship certain goods does not, of itself, make 
 those goods the subject of interstate or foreign commerce.* 
 What will constitute such a positive act on the part of the 
 shipper as to segregate the property to be transported from 
 the general mass of property in the State, the decisions are 
 not in entire accord. 
 
 When Interstate Transjportation Begins. — In a number 
 of cases it has been held that, when specific goods have by 
 some definite act been set apart for shipment, they must be 
 regarded as in transit, if shipment was actually made within 
 
 1 The Daniel Ball, 10 Wall 557; s Coe v. Errol, 116 U. S. 517; L. & 
 Bennett v. American Express Co., N. R R. Ca v. tRaUroad Gommis- 
 83 Me. 336. sion of Tennessee, 19 Fed. Rep. 703 
 
 2 North River Steamboat Co. v. Carrier v. Gordon, 31 Ohio St. 605 
 Livingston, 3 Cow. 713. McConn v. Roberts, 35 Iowa, 153 
 
 'WaUing v. Michigan, 116 TJ. S. Rothermel v. Myerle, 186 Pa. St. 
 
 446; Robbins v. Taxing District, 130 350; In re Greene, 53 Fed. Rep. 104 
 
 IJ. S. 489; Asher V. Texas, 138 U. S. Treadway v. RUey, 33 Neb. 495 
 
 139; MoCall v. CaUfomia, 136 U. S. Norfolk & Western Ry. Co. v. Com- 
 
 104; Brennan v. City of TitusviUe, monwealth, 93 Va. 749. See White 
 
 153 U. S. 389; MacNaughton v. He- v. Michigan Central Ry. Ca, 3 Int. 
 
 Girl, 49 Pac. Rep. 651 (Mont.) Com. Rep. 641. 
 
 * Ryder v. Holt, 138 U. S. 535. 
 
62 DOMESTIC AND INTEESTATE COMMEKCE. 
 
 a reasonable time thereafter.' The rule has, however, been 
 settled otherwise. The question whether an article is or is 
 not the subject of transportation must be determined by the 
 fact whether it has actually been put in motion or committed 
 to the carrier for that purpose. Until this is done the arti- 
 cle, though intended for exportation, may never be exported.' 
 In Coe V. Errol ' it was held that logs cut in New Hamp- 
 shire and hauled to the town of Errol upon the Andros- 
 coggin river in that State, and which waited there until 
 they could be floated upon the river to Lewiston in Maine, 
 were not subjects of interstate commerce. Mr. Justice Brad- 
 ley, in deliveriag the opinion of the court, said: "There 
 must be a point of time when goods cease to be governed 
 exclusively by the domestic law and begin to be governed 
 and protected by the national law of commercial regulation, 
 and that moment seems to us to be a legitimate one for this 
 purpose, in which they commence their final movement for 
 transportation from the State of their origin to that of their 
 destination. When the products of the farm or the forest 
 are collected and brought in from the surrounding country 
 to a town or station serving as an entrep6t for that particu- 
 lar region, whether on a river or a line of railroad, such 
 products are not yet exports, nor are they in process of ex- 
 portation, nor is exportation begun until they are committed 
 to the common carrier for transportation out of the State to 
 the State of their destiaation, or have started on their ulti- 
 mate passage to that State." * 
 
 Interruption of Transportation. — A temporary stoppage 
 of goods which have once commenced to move from State 
 
 lOgilvie V. Crawford County, 7 »116 U. S. 517. 
 
 Fed. Eep. 745; Coimecticut River ^Inre Greene, 52 Fed. Rep. 104; 
 
 Lumber Co. v. Columbia, 62 N. H. Bennett v. American Express Co., 
 
 286; Standard OU Co. v. Bachelor, 83 Me. 237; C. N. Nelson Liunber 
 
 89 Ind. 1. Co. V. Town of Lorraine, 22 Fed. 
 
 2 Norfolk & Western Ry. Co. v. Eep. 54; McConn v. Roberts, 25 
 
 Commonwealth, 93 Va. 749; Turpin Iowa, 152; Turner v. Maryland, 107 
 
 V. Burgess, 117 U. S. 504; Carrier v. U. S. 38. 
 Gordon, 21 Ohio St. 605 
 
DOMESTIC AND IKTEESTATE COMMEEOE. 63 
 
 to State, not being an abandonment of the original move- 
 ment, does not terminate the transit.^ So a transshipment 
 of freight which has once started upon its passage to another 
 State does not break up the carriage so as to briag it within 
 the control of a single State;* but where property is held for 
 any other purpose than that of continuing the shipment 
 within a reasonable time, it cannot be considered as in tran- 
 sit.' For this reason property temporarily stopped just be- 
 fore arrival at destination and there held for sale is not in 
 transit, but is stock in trade and subject to State taxation.^ 
 
 In State v. Corrigam, ^ it was held that " a foreign corpora- 
 tion whose busiuess is the mining of coal which is sent by 
 railroad across this state to tide water, for shipment to cus- 
 tomers in other states, and whose office for receiving orders 
 for coal and transacting its business is in New York City," 
 . . . " is not taxable on coal lying on its dock, which is 
 delayed within this state awaiting shipment to other states." 
 In State v. Migle * a broader rule was stated. In that case 
 a foreign corporation engaged in mining coal in Peimsyl- 
 vania was accustomed to ship to its agents in New Jersey, 
 where the coal was assorted and further shipment made in 
 accordance with advices of sales in New York. The court 
 held that while the coal was delayed in New Jersey tem- 
 porarily on docks awaiting shipment, the transit had not 
 terminated, and it was not subject to taxation by the State 
 of New Jersey. 
 
 It can be seen that cases where property is temporarily 
 maintaiaed in a State for other purposes than transporta- 
 tion, but where the movement is continued, would present 
 
 1 Commonwealth v. Del. & H. Co., 593 ; Chicago, R. L & P. Ey. v. Chi- 
 31 W. N. C. 535. cago & Alton Ry. Co., 3 Int. Com. 
 
 2 The Daniel Ball, 10 "WaU. 557; Rep. 731; In re Unlawful Rates, 7 
 Ex parte Koehler, 30 Fed. Rep. 867. Int. Com. Rep. 340. 
 
 'Standard Oil Co. v. Combs, 96 ^ Pittsburg & So. Coal Co. v. Bates, 
 
 Ind. 179; Walton v. Westwood, 73 156 U. S. 577. 
 m. 135; Myers v. Commissioners of * 39 N. J. L. 35. 
 Baltimore County, 83 Md. 385; Kel- 6 34 n. J. L. 435. 
 ley V. Rhoads (Wyo.), 51 Pac. Rep. 
 
64: DOMESTIC AND INTEESTATE OOMMEEOE. 
 
 difficult questions, and tMs situation has actually ariseji nnder 
 the Migratory Stock laws of "Western States. It is natural 
 that grazing cattle should wander from place to place, and 
 not infrequently advantage is taken of this fact, while fat- 
 tening the stock, to drive them slowly toward the market 
 for which they are preparing. Kelley v. Bhoads ^ involved 
 the validity of State taxation upon a herd of sheep which 
 were being driven through Wyoming from Utah to Ne- 
 braska. No tax, the court said, could be laid upon property 
 in transit from one State to another, but, if the sheep were 
 brought into the State to find grazing grounds, interstate 
 transportation ceased when the grazing grounds were found. 
 The question upon which the vsilidity of the tax depended 
 was, therefore, a question of purpose, — whether the grazing 
 was incidental to transportation, or whether the transporta- 
 tion was incidental to the grazing. It is not true that every 
 time a person drives his herds into a State, intending at some 
 future period to pass from it into another State, his cattle 
 are wholly beyond State jurisdiction. It would be possible, 
 under such a rule, by selecting a circuitojis route, to avoid 
 taxation upon grazing animals. 
 
 In considering the question of silms in such cases, it is nec- 
 essary to look to the course and method of travel, the char- 
 acter of the live-stock and of the territory grazed upoft) the 
 time employed, possibly the time of year, and all other con- 
 siderations which would throw light upon the purpose of the 
 owner; and where, upon such examination, it is found that 
 property is kept within the State few some other purpose 
 than that of transportation, the original movement must be 
 considered as abandoned. 
 
 When Transit Ends. — Being once started upon the pas- 
 sage from one State to another, passengers and merchandise 
 are subject to exclusive regulation by Congress until lost in 
 the general mass of people or property of the State to which 
 they travel.* 
 
 > 51 Pao. Eep. 593 (Wyo.). Conf . s Passenger Cases, 7 How. 405, 433 ; 
 Farris v. Henderson, 1 Okl. 384. Head Money Cases, 113 U. S. 580; 
 
DOMESTIC AISfD INTERSTATE COMMEECE. 65 
 
 But when, does this commingling take place? " There is a 
 difficulty, it is true, in all cases of this character," said Mr. 
 Justice Field, delivering the opinion of the court in ~Wdton 
 V. Missov/ri^ "in drawing the line precisely where the com- 
 mercial power of Congress ends and the power of the State 
 begins. A similar difficulty was felt by this court, in Brown 
 4). Mwrylomd, in drawing the line of distinction between the 
 restriction upon the power of the States to lay a duty on im- 
 ports, and their acknowledged power to tax persons and 
 property ; but the court observed, that the two, though quite 
 distinguishable when they do not approach each other, may 
 yet, like the intervening colors between white and black, 
 approach so nearly as to perplex the understanding, as colors 
 perplex the vision in marking the distinction between them; 
 but that, as the distinction exists, it must be marked as the 
 cases arise. And the court, after observing that it might be 
 premature to state any rule as being universal in its applica- 
 tion, held, that, when the importer had so acted upon the 
 thing imported that it had become incorporated and mixed 
 up with the mass of property in the country, it had lost its 
 distinctive character as an import, and become subject to the 
 taxing power of the State; but that, while remaining the 
 property of the importer in his warehouse in the original 
 form and package in which it was imported, the tax upon 
 it was plainly a duty on imports prohibited by the Constitu- 
 tion. 
 
 " Following the guarded language of the court in that case, 
 we observe here, as was observed there, that it would be pre- 
 mature to state any rule which would be universal in its 
 application to determine when the commercial power of the 
 Federal Government over a commodity has ceased, and the 
 power of the State has commenced. It is sufficient to hold 
 now that the commercial power continues until the com- 
 
 New York v. Compagnie, etc., 107 ware Co. v. McGviire, 39 La. Ann. 
 U. S. 59; Carson Eiver Lumber Co. 848. 
 T. Patterson, 33 CaL 334; State v. 191 TT. S. 37& 
 Kennedy, 19 La. Ann. 397; Hard- 
 5 
 
6Q DOMESTIC JlSJ) INTERSTATE COMMEKOE. 
 
 modity has ceased to be the subject of discriminating legis- 
 lation by reason of its foreign character. That power pro- 
 tects it, even after it has entered the State, from any burdens 
 imposed by reason of its foreign origin." ^ 
 
 In the absence of such considerations it has been held 
 that, for some purposes, goods pass from Federal to State 
 control at the moment when they are delivered by the car- 
 rier to the consignee. Thus, in Fuqua v. Pdbst Brewmg 
 Compcmy ^ it was held that contracts relating to the retail 
 sale of goods after delivery by the carrier are subject to 
 State laws against monopolies, and are no longer within the 
 Federal jurisdiction. The commerce clause does not. give 
 to the Federal government power to regulate production, 
 distribution or use of property within the States. 
 
 In most cases, however, the Federal power over commerce 
 cannot cease when the goods have been delivered by the 
 carrier to the consignee. If, as was said by Mr. Justice 
 Johnson, the conflict of commercial regulation by the differ- 
 ent States led to the grant of commercial power to Congress, 
 the grant should be as extensive as the mischief, and should 
 extend so far as to protect imported articles, even after 
 actual transportation had ceased, from any discrimination 
 which might be made against them on account of their for- 
 eign origin. 
 
 There has been, however, great difficulty in the practical 
 application of this rule. It is well established that a State 
 may not prohibit the entrance of any article of commerce, 
 and it is equally well established that it may forbid or regu- 
 late within its limits certain kinds of traffic. The question 
 has therefore arisen, how far such prohibitory laws may act 
 upon articles introduced from other States or coimtries. 
 
 The Original Package Rule. — In Brown v. Ma/rylamd^ 
 the first case involving this question, decided by Mr. Chief 
 
 191 U. S. 281. See also Tieman 2 90 Tex. 298. 
 
 V. Einker, 102 U.S. 123, 137; Steam- 312 Wheat. 419. See comment 
 
 ship Co. V. Pemisylvania, 122 U. S. of Taney, C. J., on this case in Li- 
 
 341 ; Brown v. Houston, 114 U. S. 622. cense Cases, 5 How. 575. 
 
DOMESTIO ASB INTBESTATE OOMMEEOE. 67 
 
 Justice Marshall in 182Y, it was said that as sale is the 
 object of importation, and an essential ingredient of that in- 
 tercourse of which transportation constitutes a part, there- 
 fore importation of goods for sale was not complete untU 
 the goods had been sold, and an article could not be con- 
 sidered as incorporated with the general mass of property 
 of the State while stUl remaining in first hands and in the 
 original package.^ 
 
 The rule thus made has met with criticism. As was said 
 by Mr. Justice Bradley in Brown v. Houston in 1884, an ar- 
 ticle might remain in this condition for years, awaiting a 
 favorable market. That goods remain in the " original pack- 
 age " may, as Mr. Justice Daniels said in the License Cases 
 in 1854, be entirely without significance. An article bought 
 in one State and taken to another might, if satisfactory to 
 the purchaser, remain many years " in first hands and in 
 original package," yet it could hardly be exempt from tax- 
 ation. 
 
 In 1868, in Wood/ruff v. Pcvrham^ the Supreme Court dis- 
 tinctly denied that the rule of Brown v. Marylamd applied 
 to articles shipped from one State to another, and limited 
 its application to articles imported from foreign countries. 
 In that case a law of Alabama, imposing a tax upon sales of 
 articles brought from other States and sold m original pack- 
 ages, was sustained. In deciding the case Mr. Justice Miller 
 said : " It is obvious that if articles brought from one State 
 into another are exempt from taxation, even under the lim- 
 ited circumstances laid down in the case of Brown v. Mwry- 
 Icmd, the grossest injustice must prevail, and equality of 
 public burdens in all our large cities is impossible." . . . 
 " The merchant of Chicago who buys his goods in New York 
 
 1 Commonwealth v. Holbrook, 10 State v. Pratt, 59 Vt. 590; State v. 
 
 Allen, 300; Richards v. Woodward, Intoxicating Liquors, 83 Me. 158; 
 
 113 Mass. 285; State v. Shapleigh, Bode v. State, 7 Gill (Md.), 326; State 
 
 27 Mo. 344 V. Robinson, 49 Me. 285; State v. 
 
 = 8 Wall. 133; S. C, 41 Ala. 334. Board of Assessors, 46 La. Ann. 145; 
 
 See also Hinson v. Lott, 8 WaU. State v. Amery, 13 R. L 64; State 
 
 148; Low V. Austin, 13 Wall 29; v. Shapleigh, 27 Mo. 344 
 
68 DOMESTIC AWD INTEESTATE COMMEECE. 
 
 and sells at wholesale in the original packages, may have his 
 millions employed in trade for half a lifetime and escape all 
 State, coimty, and city taxes ; for all that he is worth is in- 
 vested in goods which he claims to be protected as imports 
 from 'New York. Neither the State nor the city which pro- 
 tects his life and property can make him contribute a doUar 
 to support its government, improve its thoroughfares or edu- 
 cate its children." 
 
 It seems, therefore, that in 1868 the doctrine known as 
 the Original Package rule was distinctly presented to the 
 Supreme Court, and that its application was limited to for- 
 eign commerce; and it seems that it was understood as 
 recently as the cases of Brown v. Houston ' in 1885, and Roh- 
 hms V. Taxing District ^ in 1886, that this rule did not re- 
 strict the powers of the States over goods brought from 
 other States. This was certainly the understanding of the 
 State courts.' In the Eobbins case it was said that " when 
 goods are sent from one state to another for sale, or, in con- 
 sequence of a sale, they became part of its general property, 
 and amenable to its laws ; provided that no discrimination be 
 made against them as goods from another state, and that 
 they be not taxed by reason of being brought from another 
 state, but only taxed in the usual way as other goods are." 
 
 The rule as thus announced has the advantage of being 
 co-extensive with the mischief it is sought to remedy. 
 
 But in the case of Bowman v. The Northmestern Bail/road, 
 in 1887,* the court by a divided vote, Mr. Chief Justice "Waite 
 and Justices Harlan and Gray dissenting, returned to the 
 statement of the rule announced by Mr. Chief Justice Marshall 
 in Brown v. Ma/rylcmd, and although in this case " the deter- 
 mination of whether the right of transportation of an arti- 
 
 1114 U. S. 623. Huntington, 4 N. Y. L. Obs. 187; 
 
 2120U. S. 489. State v. Fitzpatrick, 16 K. I 54 
 
 estate V. Fulker, 43 Kan. 337; Conf. O'NeU v. Vermont, 144 U. S. 
 
 ConnoUy v. Scarr, 73 Iowa, 333; 333; State v. Four Jugs, 58 Vt. 140; 
 
 State V. Bowman, 78 Iowa, 519; State v. Bowman, 79 Iowa, 566; 
 
 State V. Zimmerman, 78 Iowa, 614; State v. Gurney, 37 Me. 149. 
 
 State V. Creedon, 78 Iowa, 556 ; Lin- « 135 U. S. 465. 
 
 coin V. Smith, 37 Vt. 338; People v. 
 
DOMESTIC AND INTEESTATE COMMEKCB. 69 
 
 cle of commerce from one State to another includes by neces- 
 sary implication the right of the consignee to seU in unbroken 
 packages at the place where the transportation terminates," 
 was in express terms reserved, yet the argument of the ma- 
 jority conducte"d " irresistibly to that conclusion," — a con- 
 clusion which was alBrmed by a divided vote in Zeisy v. 
 Hourdim,^ and followed in many cases.^ 
 
 The question in the last-named case involved the validity 
 of a statute of Iowa which forbade the sale of intoxicating 
 liquors, except for certain purposes, and under a license which 
 could be granted only to a citizen of Iowa, resident in the 
 county in which the liquor was to be sold. Such a law seems 
 invalid as discriminating against citizens of other States, and 
 the decision might have been placed upon this ground. In 
 &pe&r V. Commonwealth ' the Supreme Court of Yirginia con- 
 sidered the question whether a State law restricting to resi- 
 dents the right to obtain a license was illegal as discriminat- 
 ing against citizens of other States. The case arose upon a 
 law prohibiting any person not a resident m.erchant, mechanic 
 or manufacturer to sell goods by sample. It was held that 
 this did not import a personal residence, but referred to the 
 place of business ; that any person, though a citizen of and 
 living in another State, might take out a Hoense to transact 
 business as a merchant of Yirginia, and that for this reason 
 
 1 135 U. S. 100, reversing a C, 78 CardweU, 81 Iowa, 759; State v. 
 
 Iowa, 386. Pleajor, 81 Iowa, 759; State v. Win- 
 
 2 Lyng T. Michigan, 135 U. S. 161. ters, 44 Kan. 723; Wind v. Her, 98 
 
 See In re McAllister, 51 Fed. Eep. Iowa, 316; State v. Joyner, 81 N. C. 
 
 283; In re Sanders, 53 Fed. Eep. 534; Sawrie v. Tennessee, 82 Fed. 
 
 802; In re Ware, 53 Fed. Rep. 783; Eep. 615; In re Lebolt, 77 Fed. Eep. 
 
 In re Minor, 69 Fed. Eep. 388; State 587; State v. Kibling, 63 Vt. 636; 
 
 V. McGregor, 76 Fed. Eep. 956; State t. Intoxicating Liquors, 83 
 
 State of Louisiana v. Kennedy, 19 M& 558; State v. Intoxicating Liq- 
 
 La. Ann. 397; Yerteau v. Bacon's uors, 83 Me. 158. 
 
 Estate, 65 Vt. 516 ; State t. Corrick, s 33 Gratt. (Va.) 935 ; Pacific Junc- 
 
 83 Iowa, 451 ; Schandler Bottling tion t. Dwyer, 64 Iowa, 38. Conf,, 
 
 Co. T. Welch, 43 Fed. Eep. 561; however, Kohn v. Melcher, 39 Fed. 
 
 Tuchman v. Welch, Yount v. Eep. 433; Sinclair v. State, 69 N. C. 
 
 Welch, 43 Fed. Eep. 548; State v. 47. 
 
70 DOMESTIC AMD INTEESTATE COMMEEOE. 
 
 the statute was not imconstitutional. The suggestion is there- 
 fore made, that the court would have regarded a law which 
 refused licenses to citizens of other States as invalid by rea- 
 son of this discrimination. It seems now that had the court 
 taken this view of the statute involved in Zeisy v. Ha/rdm,, 
 the doctrine of that case might not since have received the 
 support of the court, for the decisions which immediately 
 followed that case largely modified the absolute rule then 
 prevailing. 
 
 The Mule is Not of Logic iut of Convenience. — It is clear 
 that some time must be fixed when goods pass from Federal 
 control to the jurisdiction of the State into which they are 
 imported, and it is very likely that the origiaal-package rule 
 most effectively answers the practical requirements of the 
 situation.' 
 
 At the same time, viewed from the standpoint of princi- 
 ple, the rule is inconsistent with recognized doctrine, both 
 because it limits the powers of the States more than is con- 
 sistent with the purposes of the Constitution, and because it 
 fails to give interstate commerce the full protection that is 
 required. 
 
 The rule permits State restrictions upon the retail sale of 
 articles purchased at wholesale, — a necessary and important 
 operation of commerce. This has been the subject of com- 
 ment in several cases. "I ca,n perceive no rational dis- 
 tinction," said Mr. Justice Daniels in the License Cases^ 
 " which can be taken upon the circumstance of mere quan- 
 tity, shape, or bulk; or on that of the number of transmis- 
 sions through which a commodity may have passed from 
 the first proprie.tor, or of its remaining still with the latter." 
 Moreover, as was said in the Trade-ma/rTc Cases^ "every 
 species of property which is the subject of commerce, or 
 which is used or even essential in commerce, is not brought 
 by this clause within the control of Congress. The barrels 
 
 iSee opinion of Taney, C. J., in 2 5 How. 504, 614 
 License Cases, 5 How. 5oi 575. » 100 U. S. 83-95. 
 
DOMESTIC AJSD INTEESTATE OOMMEECE. 11 
 
 and casks, the bottles and boxes in wbiob alone certain arti- 
 cles of commerce are kept for safety and by which their 
 contents are transferred from the seller to the buyer, do not 
 thereby become subjects of congressional legislation more 
 than other property." If the right of the consignee to sell 
 be maintained on the ground that sale is an essential in- 
 gredient of that intercourse of which transportation consti- 
 tutes a part, then the consignee should, if the argument be 
 sustained, be allowed to seU in any quantity as well as for 
 any price he chose. " The fact that as a matter of conven- 
 ience in handling, during the transportation of the property, 
 the bottles were packed in boxes and barrels can make no 
 difference as to the character in law of the transaction. If 
 he had the right to bring liquor within the state, and to sell it 
 here, he had the right to adopt such means and mode of 
 shipment as best suited his convenience or interest, for, as 
 far fis we are advised, there is no regulation upon the sub- 
 ject, of either state or national enactment. The right to 
 buy and seU in such quantities as he chose is necessarily ia- 
 cluded in the right to buy and sell in any quantity." . . . 
 " Any other holding it seems to us would lead to results 
 and conclusions which, owing to their absurdity, would be 
 shocking alike to legal judgment and the common sense of 
 mankind." ^ 
 
 Viewed in the second place, from the standpoint of the 
 States, the operation of the rule is unfortunate in that it de- 
 prives the States of authority essential for effective enforce- 
 ment of necessary police regulations. It is not claimed that 
 they may prohibit the introduction of proper articles of com- 
 merce. Grain, dry-goods, hardware and other merchandise 
 of such character may be introduced within a State with 
 or without its permission, and when so introduced can be 
 sold at wholesale or at retail, as the importer may elect; but 
 there are articles of commerce which occupy a different re- 
 
 iCoUins V. Hill, 77 Iowa, 181; State, 11 Md. 525; Connolly v. Scarr, 
 Gnisendorf v. Howat, id. 187; Leisy 73 Iowa, 233. 
 V. Hardin, 78 Iowa, 386; KeUer v. 
 
72 DOMESTIC AOT5 INTEESTATE COMMEECE. 
 
 lation to the health and morals of the community. Mtro- 
 glycerine and arsenic are property, and subjects of commerce ; 
 but all agree that a reasonable regulation of their introduc- 
 tion, use and sale is a proper exercise of the police power of 
 a State, whether in original packages or not; and this rule 
 has been applied to other articles beside explosives and 
 poisons.^ 
 
 This proposition was recognized for many years in the 
 laws by which free States excluded slave property,'' and was 
 approved in the case of Leisy v. Sa/rdm itself; for in that 
 case the court says that if subjects of commerce are " di- 
 rectly dangerous in themselves, the State may take appro- 
 priate measures to guard against injury before it obtains 
 complete jurisdiction over them; " and in Mugl&r v. Ka/nsas^ 
 the Supreme Court has said that it could not " shut out of 
 view the fact, within the knowledge of all, that the public 
 health, the public morals and the public safety, may be en- 
 dangered by the general use of intoxicating drinks." In 
 Canada, under the somewhat similar provision of the Brit- 
 ish North America Act of 186Y, it is held that it is within 
 the authority of a province to impose a license tax upon aU 
 persons selling spirituous liquors, and that such a tax is valid 
 although applied to the sale of liquor imported from other 
 provinces. Upon this question the Privy Council remarked 
 that the provisions of the act in question were " in the nat- 
 ure of police or municipal regulations of a merely local 
 character, for the good governinent of taverns, etc., licensed 
 for the sale of liquors by retail, and, as such, calculated 
 to preserve in the municipality peace, and public decency, 
 
 1 State V. Fulker, 43 Kan. 237; monwealth v. Clapp, 5 Gray 97; 
 
 Collins V. Hill, 77 Iowa, 181 ; State Metropolitan Board, etc. v. Barrie, 
 
 V. Newton, 50 N. J. L. 534; Com- 34 N. Y. 657; Jones v. Surprise, 64 
 
 monwealth v. Huntley, 156 Mass. N, H. 343; Lang v. Lynch, 38 Fed. 
 
 336; Commonwealth v. Gardner, Rep. 489. 
 
 183 Pa. St. 384; Jones v. People, 14 « Osborne v. Nicholson, 1 DHL 219, 
 
 m. 196; State V. Wheeler, 25 Conn. 235; Groves v. Slaughter, 15 Pet. 
 
 290 ; Santo v. State, 2 Iowa, 165, 202 ; 449. 
 
 State V. Stucker, 58 Iowa, 496 ; Com- » 123 U. S. 623, 663. 
 
DOMESTIC AOT) INTEESTATE COMMEECE. T3 
 
 and to repress drunkenness and disorderly conduct, and as 
 such they cannot be said to interfere with the general regu- 
 lation of trade and commerce which belongs to the Domin 
 ion Parliament." ^ 
 
 Exclusion of Matter from the Mails iy State Legislation. 
 In 1835 a question substantially Kke that involved in Bow- 
 mem V. RaAVwwy Compcmy and Leisy v. Mardm was sub- 
 mitted to Postmaster-General Kendall when the Southern 
 States demanded the exclusion of abolition documents from 
 the United States mails. 
 
 Mr. Kendall expressed the opinion that the Federal gov- 
 ernment had not the right, under the Constitution, to intro- 
 duce such matter within a State whose laws forbade it. 
 " Heretical as the opinion may seem even to-day to most 
 Americans," says Prof. Yon Hoist in his Constitutional His- 
 tory, " there can be no doubt that Kendall's argument on 
 this point was to the purpose." ..." Neither in Con- 
 gress nor elsewhere has this been validly refuted." . . . 
 " The state laws which interdicted the publications of the 
 abolitionists, and branded the dissemination of them as a 
 great crime, were not in conflict with the Federal Constitu- 
 tion." 2 
 
 Mr. Kendall's argument, as given in his annual report to 
 the President in December, 1835, is as follows : 
 
 " It is universally conceded that our states are united only 
 for certain purposes. There are interests in relation to which 
 they are believed to be as independent of each other as they 
 were before the Constitution was formed. The interest which 
 some of the people have in slaves is one of them." . . . 
 
 " Nor have the people of one state any more right to in- 
 terfere with this subject in another state, than tiaey have 
 to interfere with the internal regulations, rights of prop- 
 erty or domestic police of a foreign nation. If they were 
 to combine and send papers among the laboring population 
 of another nation, calculated to produce discontent and re- 
 bellion, their conduct would be good ground of complaint 
 
 iBourinot, Const. Hist. Canada, 2 Const. Hist, of U. S., 1888-1846, 
 p. 144 pp. 125, 137. 
 
74 DOMESTIC AlTD INTEESTATE OOMMEECE. 
 
 on the part of that nation, and in case it were not repressed 
 by the United States, might be, if persevered in, just cause 
 of war. The mutual obligations of our several states to sup- 
 press attacks by their citizens on each other's rights and in- 
 terests, would seem to be greater, because by entering into 
 the Union they have lost the right of redress which belongs 
 to nations wholly independent. Whatever claim may be 
 set up or maintained to a right of free discussion within 
 their own borders, of the institutions and laws of other com- 
 munities over which they have no rightful control, few will 
 maintain that they have a right, unless it be obtained by 
 compact or treaty, to carry on discussions within those com- 
 munities, either orally or by the distribution of printed pst- 
 pers, particularly if it be in violation of their peculiar laws 
 and at the hazard of their peace and existence." . . . 
 " It is not easy to perceive how citizens of JS'orthem states 
 can ^possess a claim, to the privilege of carrying on discus- 
 sions within the Southern states, by the distribution of 
 printed papers, which the citizens of the latter are forbidden 
 to circulate by their own laws." . . . "In the exercise 
 of their reserved rights, and for the sake of protecting their 
 interests and insuring the safety of their people, some of the 
 states have passed laws prohibiting under heavy penalties, 
 the printing or circulation of papers Kke those m question, 
 within their respective territories. It has never been al- 
 leged that these laws were iucompatible with the Constitu- 
 tion of the United States, nor does it seem possible that they 
 can be so, because they relate to subjects over which the 
 United States cannot rightfully assume any control under 
 the Constitution, either by law or otherwise. If these prin- 
 ciples are sound, it will follow that state laws on this sub- 
 ject are within the scope of their jurisdiction, the supreme 
 laws of the land, obligatory alike on aU persons, whether 
 private citizens, officers of state or functionaries of the gen- 
 eral government." ^ 
 
 In his annual message of that year. President Jackson sug- 
 gested to Congress " the propriety of passing such a law as 
 wiU prohibit, under severe penalties, the circulation in the 
 Southern States, through the mail, of incendiary publications 
 intended to instigate the slaves to insurrection."' 
 
 This matter was submitted to a committee of which John 
 
 1 49 Niles Eeg. 277. Papers of the Presidents, vol III, 
 
 2 49 Niles Reg. 256; Messages and p. 175. 
 
DOMESTIC AND INTEESTATE COMMEKCE. T5 
 
 0. Calhouii was chairman, and by which, on February 4, 
 1836, a report was made to Congress accompanied by a bill 
 to prohibit deputy postmasters from receiving and trans- 
 mitting through the mail to any State papers whose circula- 
 tion is prohibited by the laws of that State. 
 
 In view of the Wilson Act ^ this report has much present 
 interest. 
 
 It denied that Congress had power to pass such a law as 
 the President had suggested, and maintained that " the in- 
 ternal peace and security of the States are under the protec- 
 tion of the States themselves, to the entire exclusion of all 
 authority and control on the part of Congress ; " that " it be- 
 longs to them, and not to Congress, to determine what is, or 
 is not, calculated to disturb their peace and security; " that 
 if Congress might decide that year what were incendiary 
 publications, it might decide next year what were not, and 
 that it would be in its power, therefore, to open the gates of 
 the States to any matter it might see fit to introduce, and to 
 punish all who dared resist as criminals. The report main- 
 tained that when the States had determined what were in- 
 cendiary publications, it was the duty of Congress to respect 
 State laws on the subject, and, so far as practicable, to co- 
 operate in their execution.^ 
 
 The act reported declared that it should " not be lawful 
 for any deputy postmaster in any State, Territory, or Dis- 
 trict, knowingly to deliver to any person whatsoever any 
 pamphlet, newspaper, handbUl or other printed paper or pic- 
 torial representation touching the subject of slavery, when 
 by the laws of such State, Territory, or District, such circu- 
 lation is prohibited." ' 
 
 In anticipation of constitutional objections, Mr. Calhoun, 
 in the report accompanying this bUl, cites two precedents 
 for such legislation by Congress. 
 
 1 36 Stat. L. 313 ; Supp. Eev. Stat., « Wilson's Rise and FaU of Slave 
 oh. 738, p. 779. Power in America, voL 1, p. 334 
 
 2 Calhoun's Works, voL V, pp. 190, 
 197; voL II, p. 509. 
 
Y6 DOMESTIC AMD INTEESTATE COMMEECE. 
 
 By the act of the 28th of "February, 1803, masters or cap- 
 tains of vessels are forbidden, under severe penalty, " to im- 
 port or bring or cause to be imported or brought, any negro 
 or mulatto, or person of color, not being a native or citizen, 
 or registered seaman of the United States, or seaman, na- 
 tives of countries beyond the Cape of Good Hope, into any 
 port or place which shall be situated in any State, which, by 
 law, has prohibited, or shall prohibit, the admission or im- 
 portation of such negro, mulatto or other person of color." 
 . . . To the same effect is the act of the 25th of Feb- 
 ruary, 1799, respecting quarantine and health laws, which, 
 among other things, " directs the collectors and aU other rev- 
 enue officers, the masters and crews of the revenue cutters 
 and the military officers in command on the station, to co- 
 operate faithfully in the execution of the quarantine and 
 other restrictions which the health laws of the State may 
 establish." ' 
 
 After a long struggle this bill was, on the 8th of June, 
 1836, defeated in the Senate by a small majority. 
 
 The Wilson Act. — Since that time there have been but 
 two statutes of this character enacted by Congress. The 
 first is the act of July 3, 1866,^ providing that the transpor- 
 tation of and traffic in nitro-glycerine and other high ex- 
 plosives mentioned in the act may be regulated or prohibited 
 by the States. 
 
 The second act referred to is that known as the "Wilson 
 Act of August 8, 1890.' This statute provides: 
 
 " That aU fermented, distilled, or other intoxicating liquors 
 or liquids transported into any State or Territory or remain- 
 ing therein for use, consumption, sale or storage therein, 
 shall upon arrival in such State or Territory be subject to 
 the operation and effect of the laws of such State or Terri- 
 tory enacted in the exercise of its police powers, to the same 
 extent and in the same manner as though such liquids or 
 
 1 Calhoun's Works, voL V, pp. 199, ' 36 Stat. L. 313 ; Supp. U. S. Eev, 
 300. Stat., ch. 738, p. 779, 
 
 2 U. S. Eev. Stat., p. 836, sec. 4380. 
 
DOMESTIC AND INTEESTATE COMMEEOE. 77 
 
 liquors had been produced in such State or Territory, and 
 shall not be exempt therefrom by reason of being introduced 
 therein in original packages or otherwise." 
 
 This enactment was at once challenged as an unconstitu- 
 tional delegation of power. The commercial power of Con- 
 gress is exclusive in all matters of national concern. The 
 Wilson Act, it was said, was therefore intended to confer 
 upon the States the very power which was denied to them 
 by the Constitution. 
 
 It does not appear, however, either in the history of com- 
 mercial regulations by Congress, or in the decisions of the 
 Supreme Court, that the Federal power was ever understood 
 to be exclusive in the sense intended by this argument. It 
 was, for instance, during many years, the settled practice 
 of Congress to grant the States on the seaboard leave to lay 
 duties at their ports for the improvement of their harbors,' — 
 a delegation of commercial power expressly sanctioned by 
 the Constitution, which is in some respects more remarkable 
 than either of the instances cited by Mr. Calhoun. 
 
 The decisions of the Supreme Court make the rule clear 
 that the Constitution does not contain an absolute prohibi- 
 tion which excludes all State regulations acting directly 
 upon commerce, but that the prohibition is found in the im- 
 plication which the court draws from the absence of Federal 
 regulation, — of the congressional wiU that commerce shall 
 be free. Congress, it is said, can neither delegate its own 
 powers nor enlarge those of a State, but it may make such 
 regulations that the subjects of commerce will fall within the 
 operation of State laws enacted under powers which are not 
 surrendered.' 
 
 There has been a difference of opinion, arising upon the 
 construction of the WUson Act, whether under its provisions 
 a State can forbid the introduction of intoxicating liquors 
 within its limits. Under the Iowa law, which forbids trans- 
 
 ' Congressional Government, by ^ i^ rg Rahrer, 140 U. S. 545; In re 
 Woodrow "Wilson, p. 166. See post, Spickler, 43 Fed. Rep. 653; City of 
 p. 108. Indianapolis v. Bieler, 138 Ind. 80. 
 
V8 DOMESTIC Airo INTEESTATE COMMEECE, 
 
 portation of intoxicating liquor between points witliin the 
 State unless the consignee is authorized under State law to 
 sell at the point of consignment, it was held that liquor be- 
 comes subject to the police laws of the State the instant of 
 crossing the State line, and that, thereafter, its transportar 
 tion is unlawful.^ The Federal statute, the Supreme Court of 
 Iowa said, makes liquors upon arrival within a State subject 
 to its police laws as fully as domestic liquors. It could not 
 be questioned that if the liquor were received within the 
 State Une and darried from point to point in the State, in 
 violation of State law, the act would be punishable. If for- 
 eign liquor, upon arrival in the State, is subject to its police 
 laws to the same extent as domestic liquor, the act of trans- 
 portation must be unlawful in one case when it is in the 
 other.'' Upon this theory it has been held — apparently upon 
 , the ground that the authority to forbid the importation of 
 liquor from other States involves authority to forbid contracts 
 for such importation — that the State may refuse the vendor 
 the right to recover from the consignee the purchase price 
 of liquor so imported when the contract was made wholly 
 or partly within its limits.' 
 
 This construction of the statute is not adopted by the Su- 
 preme Court of the United States. The act does not author- 
 ize a State to forbid the introduction of intoxicating liquor, 
 but recognizes the right of transportation and permits State 
 laws to act upon the liquor only when carriage is complete. 
 The provision that "liquor transported into any State or 
 Territory . . . shaU upon arrival" be subject to its 
 police laws, if so construed as to forbid transportation of 
 liquor across State lines, would give an extrarterritorial effect 
 to State laws and make "arrival" itself unlawful. It is 
 therefore settled that the Wilson Act does not operate upon 
 
 1 State V. Rhodes, 90 Iowa, 496. v. Fraser, 1 N. D. 435; South Caro- 
 
 2 State V. Rhodes, 90 Iowa, 496; Una v. City of Aiken, 43 S. C. 333. 
 In re Spickler, 43 Fed. Rep. 653; In 3 Starace v. Rossi, 69 Vt. 303; Bev- 
 reVan Vliet,43Fed.Rep.761; State erwyck Brewing Co. v. Oliver, 69 
 
 Vt. 323; Jones v. Hard, 33 Vt. 481. 
 
DOMBSTIO ANB INTEESTATE COMMEECB. 19 
 
 liquor 'brought into a State until its destination has been 
 reached and it is delivered to the consignee.^ Contracts 
 which contemplate nothing more than the transportation 
 of liquor into a State are therefore lawful. So an action 
 may be maintained to recover the price of liquor shipped 
 into a State, although the consignee be not at liberty, under 
 the State laws, to sell it.'' On the other hand, contracts which 
 contemplate the sale of liquor contrary to State police laws 
 are unlawful, and the State may refuse to permit recovery 
 upon them.' 
 
 The statute which bears the closest analogy to the Wilson 
 Act is that making high explosives carried from State to 
 State subject to the jurisdiction of the States through which 
 they pass. In this instance Congress has expressly author- 
 ized the States to prohibit the introduction of such articles 
 within their limits.* Had it been intended to permit the 
 same authority over intoxicating liquors, the language would 
 probably have been equally unmistakable. 
 
 The WUson Act applies only to State police laws. It does 
 not, and could not under the Constitution, authorize State 
 regulation of interstate traflB.c for purposes of commerce or 
 revenue. 
 
 To establish the validity of State regulations under this 
 act, it is therefore necessary to show not only that the reg- 
 ulation in question has a real and substantial relation to 
 purposes within the scope of the police jurisdiction, but also 
 that in its operation it does not establish restrictions of an 
 essentially commercial character. 
 
 South Carolina Dispensary Law. — This phase of the sub- 
 ject received attention in the litigation over the South Oaro- 
 
 1 Ehodes v. Iowa, 170 U. S. 413, 18 2 Carstairs v. O'ConneU, 154 Mass, 
 
 Sup. Ct. Eep. 664; In re Langford, 357. 
 
 57 Fed. Eep. 570; Ex parte Edger- 3 Fred Miller Brewing Co. v. Ste- 
 
 ton, 59 Fed. Eep. 115; In re Jervey, vens, 102 Iowa, 60, 71 N. W, Eep. 
 
 66 Fed. Eep. 957; Jervey v. South 186. 
 
 Carolina, 66 Fed. Eep. 1013; Bluth- <iEeT. Stat., sec. 4280. 
 enthal v. Southern Ey. Co., 84 Fed. 
 Eep. 920. 
 
80 DOMESTIC AND INTEBSTATE COMMEECE. 
 
 lina Dispensary Law. There is no doubt tliat the law 
 contained many provisions within the scope of the police 
 jurisdiction. It forbade the sale of liquor on Sunday, or to 
 minors or intoxicated persons, and these, as well as others of 
 its provisions, are recognized police laws, such as are com- 
 mon in States where the sale of liquor is not prohibited. 
 
 The law went beyond these restrictions, however, and for- 
 bade the sale of intoxicating liquor within the State by any 
 private individual, giving the whole traffic to the State as a 
 monopoly. The sale and use of liquor was not forbidden, 
 but was facilitated. Officers were appointed throughout 
 the State to dispense liquor at convenient points, and the 
 profit arising from the business went into State, county and 
 municipal treasuries. 
 
 Such a law as this, it was said, established a commercial 
 monopoly. The legislature undoubtedly intended by this 
 means to prevent some evils which result from the general 
 use of intoxicating liquors ; but, as was said by Mr. Justice 
 Story, it is one question whether a means be adapted to serve 
 the State, and quite another question whether it be within 
 its jurisdiction. A State cannot make a regulation of com- 
 merce to enforce its police laws, for such a regulation is a 
 means withdrawn from its authority.^ 
 
 The Supreme Court of South Carolina held, therefore, that 
 the Dispensary Act was void.^ 
 
 This aecision has since been overruled,' but its doctrine is 
 to some extent still approved in the Federal courts. A police 
 law, it is said, may forbid the general use of intoxicating 
 liquors, and may provide equal regulations acting upon do- 
 mestic and imported Liquors; but a State cannot establish a 
 system which in effect discriminates between interstate and 
 domestic commerce in articles whose manufacture and use 
 are lawful. A State cannot forbid the importation of liquors 
 
 iNew York v. Miln, 11 Pet. 102, 3 state v. City CoTincil of Aiken, 
 
 157. 43 S. C. 233; State v. Potterfleld, 47 
 
 2MoCuUough V. Brown, 41 S. C. S. C. 75. See Cantini v. TiUman, 54 
 
 220. Fed. Rep. 969. 
 
DOMESTIC AUD DTTEESTATE COMMEECB. 81 
 
 for use by the importer "while it permits the use of domestic 
 liquors.' This decision was affirmed in the Supreme Oourt.^ 
 
 It seemed that the result of these decisions was to hold 
 that the South Carolina statute was not such a police law as 
 fell within the operation of the "Wilson Act, and that its pro- 
 vision prohibiting the sale in original packages of Liquors 
 brought from other States or from foreign countries was in- 
 valid. So long as the State itself sold intoxicating Liquors 
 for use as a beverage, it was argued it could not prohibit 
 others from engaging in the same traffic' 
 
 In Ycmce v. Vcmdercook Compcmy^ this inference was de- 
 nied by the Supreme Court, and it was held the fact that the 
 State law permitted the sale of liquor, subject to certain re- 
 strictions, did not prevent the law from being an exercise of 
 the police power. The purpose of the "Wilson Act, it was 
 said, was to allow State regulations to operate upon the sale 
 of original packages of intoxicants brought from other States, 
 and this operation would be prevented were the act so con- 
 strued as to permit a State to control sale only by prohibition. 
 This decision permits importation of intoxicating liquors for 
 use by the importer, while their importation for sale is left 
 within the operation of the "Wilson Act and the resulting 
 State jurisdiction. 
 
 In its operation upon police laws of different States, the 
 "Wilson Act confers no additional authority, but removes an 
 impediment to the operation of State law. Statutes enacted 
 before the passage of the WUson Act were therefore not 
 void, but only inoperative, and became effective at once upon 
 the passage of the Federal statute.* 
 
 1 Donald v. Scott, 76 Fed. Eep. « Tinker v. State, 90 Ala. 638; 
 554, 559, 74 Fed. Eep. 859, 67 Fed. State v. Lord, 66 N. H. 479; In re 
 Rep. 854 Rahrer, 140 U. S. 545; Common- 
 
 2 Scott V. Donald, 165 U. S. 58. wealth v. Calhane, 154 Mass. 115; 
 sVandercook Co. v. Vance, 80 State v. Fraser, 1 N. D. 435; Bailey 
 
 Fed. Rep. 786; Moore v. Bahr, 83 Liquor Co. v. Austin, 83 Fed. Rep. 
 Fed. Rep. 19. 785. 
 
 < 170 U. S. 438, 18 Sup. Ct. Rep. 674 
 6 
 
82 DOMESTIC AND INTERSTATE OOMMEEOB. 
 
 Definition of an Original Package. — In general terms, an 
 original package may be defined as the unbroken package 
 in the condition in ~which it was received by the carrier and 
 transported.' In the case of cigars and cigarettes, Congress 
 has in effect prescribed by statute what shall be considered 
 an original package.* 
 
 When intoxicating liquors in bottles are packed in boxes, 
 each containing one bottle, and shipped separately iato a 
 State, each separate bottle constitutes an original package.* 
 Where liquor is transported in bottles, wrapped in paper, 
 separately addressed, and transported by the carrier, lying 
 loose upon the floor of a car, or in open boxes attached 
 thereto, the bottles constitute original packages.* In two 
 cases in Iowa it was held that where bottles of liquor were 
 packed in barrels and boxes and transported into a State, 
 the bottles were the original packages, and were within the 
 protection of the Federal commercial law after they had 
 been removed from the barrels and boxes.' A somewhat 
 similar decision was made in regard to cigarettes in the case 
 of In re Mm)^ The Iowa cases have been overruled on this 
 point,' and the weight of authority is in favor of the rule 
 that under such circumstances the boxes or barrels are the 
 original packages.' 
 
 1 McGregor v. CoTie (Iowa), 73 N. "State v. Coonan, 82 Iowa, 400; 
 
 W. Rep. 1041 ; United States v. One State v. Miller, 86 Iowa, 638. 
 
 Hundred Thirty-two Packages, 76 «82 Fed. Rep. 423. 
 
 Fed. Rep. 864; State v. Board of 'McGregor v. Cone (Iowa), 73 N. 
 
 Assessors, 46 La. Ann. 145; State v. W. Rep. 1041. 
 
 Winters, 44 Kan. 733. « Guckenheimerv. Sellers, 81 Fed. 
 
 2 IT. S. Rev. Stat., sec. 3393, Rep. 997; In re 'Harmon, 48 Fed. 
 
 amended by act of March 1,1879, 20 Rep. 373; In re Wilson, 19 D. C. 
 
 Stat L. 347, Supp. R. S. 864; State v. 341 ; Keith v. State, 91 Ala. 2; Har- 
 
 Goetz (W. Va.), 37 S. E. Rep. 325; rison v. State, 91 Ala. 63; Smith v. 
 
 In re Minor, 69 Fed. Rep. 333; State State, 54 Ark. 348; Collins v. Hills, 
 
 V. McGregor, 76 Fed. Rep. 956. 77 Iowa, 181; State v. Parsons, 134 
 
 Conf. In re May, 82 Fed. Rep. 433. Mo. 436; Haley v. Nebraska, 43 Neb. 
 
 Cojiira, McGregor v. .Cone (Iowa), 556; Commonwealth y. Bishman, 
 
 73 N. W. Rep. 1041.' 138 Pa. St. 639; State v. Chapman, 
 
 sin re Beine, 42 Fed. Rep. 545. 1 S. Dak. 415; City Council v. Ah- 
 
 < Keith V. State, 91 Ala. 2. reus, 3 Strobh. (S. C.) 241. 
 
DOMESTIC Airo INTEESTATE COMMEEOE. 83 
 
 In one case, where liquor was imported in sealed bottles 
 and sold in that condition to the purchasers, who opened 
 them, drinking the contents from glasses provided by the 
 seUer, and leaving the bottles with the seller, it was held 
 that the transaction was not a sale of original packages, but 
 of their contents, and was therefore subject to State regu- 
 lation.^ 
 
 Original Packages May he of Any Size. — We have al- 
 ready seen that since the decision of Ldsy v. Sa/rdm, there 
 has been a strong disposition to qualify the rule therein 
 stated or to limit its application. It has been said, there- 
 fore, that the question what constitutes an original package 
 is one partly of good faith, and that the package must be 
 such as is used by producers and shippers for their conven- 
 ience and security in transporting their wares in the ordi- 
 nary course of business." This doctrine has not met with 
 the general support of the courts. In the absence of regula- 
 tion by Congress, the importer may determine for himself 
 the form and size of the package which he buys.' The right 
 of the importer to sell his goods is the same whether his 
 dealings are by retail with the consumer, or by wholesale 
 with other merchants.* 
 
 Importation in Violation of Law. — It has been held that, 
 if articles are imported from foreign countries without com- 
 pliance with Federal law. State jurisdiction is not excluded 
 when they come within its territorial limits.' 
 
 Extent of State JurisMction Over Original Packages. — 
 The right given by the commerce clause to bring articles 
 
 1 Hopkins v. Lewis, 84 lo-wa, 690. ' Guokenlieimer v. Sellers, 81 Fed. 
 Conf. Fuqua v. Pabst Brewing Co., Eep. 997; In re Beine, 42 Fed. Eep. 
 90 Tex. 298. 545; State v. Winters, 44 Kan. 723; 
 
 2 Commonwealth v. Paul, 170 Pa. Tinker v. State, 96 Ala. 115; State 
 St. 284; Commonwealth v. Sohol- v. Board of Assessors, 46 La. Ann. 
 lenberger, 170 Pa. St 296; Common- 145. 
 
 wealth V. SohoUenberger, 156 Pa. ^ SchoUenberger v. Peimsylvania, 
 
 St. 201; Commonwealth v. Zelt, 138 18 Sup. Ct. Eep. 757. 
 
 Pa. St. 615 ; SohoUenberger v. Penn- » State v. Wade, 63 Vt. 80. 
 i^lvania, 171 U. S. 1. 
 
84 DOMESTIC AND INTEESTATE OOMMEECB. 
 
 into a State is limited to those subjects of trade and com- 
 merce "which are transported for proper commercial purposes. 
 "Weapons and drugs are subjects of commerce under ordinary 
 circumstances, but not when carried with wrongful purpose. 
 So while, under ordinary circumstances, liquor is a subject of 
 commerce, it is only so regarded when put to commercial 
 use. A State law punishing the sale of intoxicating liquors 
 to persons of known intemperate habits,^ or fixing the hours 
 within which liquor may be sold, and forbidding its sale for 
 consumption on the premises,^ may therefore be applied to 
 sales of original packages of imported liquors. 
 
 So a law providing for seizure and forfeiture of liquors 
 which are held for sale in violation of State regulations has 
 been applied to liquor brought from other States in possession 
 of the importer and in original packages, where it was shown 
 that the intention of the owner was not to sell in the condi- 
 tion of importation, but to break the package and seU in small 
 quantities.^ A State may prohibit the sale of liquor on Sun- 
 day, and this is a valid exercise of the police power of the 
 State, even as applied to the importer seUing in the original 
 packages.* 
 
 Effect of Breaking a Package. — When an original pack- 
 age is broken it becomes subject to State jurisdiction.' It 
 has been said, however, that the fact that the lid of a pack- 
 age has been removed, so that its contents may be examiaed, 
 is not such a breaking as wiU destroy its original character; * 
 
 1 Commonwealth v. Zelt, 138 Pa. Stommel v. Timbrel, 84 Iowa, 336; 
 St. 615; Commonwealth v. Silver- Commonwealth r. Paul, 148 Pa. St 
 man, 138 Pa. St. 643. 559; Commonwealth v. Bishman, 
 
 2 Moore v. Bahr, 83 Fed. Eep. 19. 138 Pa. St. 639 ; Western Paper Bag 
 
 3 State V. Intoxicating Liquors, 65 Co. v. Johnson (Tex. Civ. App.), 38 
 Me. 556. See Knowlton V. Doherty, S. W. Eep. 364; Smith v. People, 1 
 87 Me. 518. Parker's Cr. Eep. 588; Wynhamer 
 
 *0n general subject, see post, v. People, 30 Barb. 567; Wynn v. 
 
 pp. 178, 336, 339; Dorman v. State, Wright, 1 Dev. & B. (N. C.) 19; Com* 
 
 84 Ala. 316; Moore v. Bahr, 83 Fed. monwealth v. Kimball, 34 Pick. 359; 
 
 Eep. 19. People v. Quant, 3 Parker's Cr. Cas. 
 
 sLelsy v. Hardin, 135 U. S. 100; 410. 
 
 Brown v. Maryland, 13 Wheat. 419 ; « In re McAllister, 51 Fed. Eep. 283, 
 
DOMESTIC AND INTEBSTATE COMMEECE. 
 
 85. 
 
 and the drawing of a bnng from a barrel to obtain a small 
 quantity of its contents for testing is not a breaking of the 
 package.^ 
 
 Effect of Sale "by Importer. — The cases agree that when 
 an article is sold by the importer it loses its distinctive char- 
 acter as an import and becomes part of the general mass of 
 property in the State, and subject to its police and taxing 
 power,^ so long as no discrimination is made against it on 
 account of its foreign origin.' Where an importer of liquors 
 executes a mortgage thereon which is foreclosed whUe the 
 cask is in bond in a United States warehouse, and the pur- 
 chaser at the foreclosure sale pays the duties and receives 
 the cask, the goods are no longer in first hands, but have 
 become subject to the jurisdiction of the State.* 
 
 The Federal Oommeecial Power in Relation to the 
 
 Oaeeiee. 
 
 The Federal power over commerce extends not only to the 
 goods which are transported, but " also embraces within its 
 control all the iastrumentalities by which that commerce 
 may be carried on, and the means by which it may be aided 
 and encouraged." ' 
 
 Even carriers engaged in transportation from point to 
 point ia the same State are within Federal control so far as 
 they are engaged ia interstate commerce. 
 
 Domestic Carriers on Na/vigalle Waters. — Transportation 
 upon high seas, or upon navigable waters of the United 
 
 Wind V. Her, 93 Iowa, 316. Conf. 2 Parker's Ur. Cas. (N. Y.) 410 ; Wyn- 
 
 Wasserboehr v. Boulier, 84 Me. 165. hamer v. People, 20 Barb. 567; State 
 
 2 Brown v. Maryland, 13 Wheat, v. Peckham, 3 R. I. 389; City Coun- 
 
 449; Waring v. The Mayor, 8 Wall oil v. Ahems, 4 Strobh. (8. C.) 341; 
 
 110; SohoUenberger v. Pennsyl- MoG-uinness v. Bligh, 11 R. I. 94 
 vania, 171 U. S. 1 ; McGregor v. Cone ^ Welton v. Missouri, 91 U. S. 375, 
 
 (Iowa), 73 N. W. Eep. 1041 ; In re Mo- 283 ; McCreary v. State, 73 Ala. 480. 
 Allister, 51 Fed. Rep. 383; State v. <King v. McEvoy, 4 Allen, 110. 
 Shapleigh, 37 Mo. 334; State t. Rob- ^ Gloucester Ferry Co. v. Pennsyl- 
 
 inson, 49 Me. 385; People v. Quant, vania, 114 U. S. 196, 304 
 
86 DOMESTIC AlTD INTEKSTATE OOMMEECE. 
 
 States, necessarily connects itself with foreign and interstate 
 transportation, and is within the Federal commercial power 
 even as between points in the same State. The safety of 
 navigation requires that vessels operating upon the same 
 waters shall be subject to the same rules, and shall be under 
 substantially similar obligations. Regulations of this char- 
 acter extend not only to the rules of the road, the subject 
 of signal lights and the licensing of officers, pilots and en- 
 gineers, but for their enforcement involve regulation of the 
 registry and enroUJoient of vessels, and the means by which 
 title thereto may be passed. In Lord, v. Steamship Co} suit 
 was brought against the owner of a vessel engaged in trans- 
 portation from San Francisco to San Diego, to recover the 
 value of freight lost, and it was contended that the provision 
 of the Federal statutes limiting the liability of owners of 
 vessels for loss or destruction of freight had no application 
 to transportation between points in the same State. It was 
 held, however, that transportation upon the high seas was 
 necessarily national in character and within the Federal con- 
 trol. The vessel was navigating with the vessels of other 
 nations, and, while not trading with them, was engaged in 
 commerce with them. If, in the course of her voyage, she 
 inflicted a wrong upon another country, the Federal govern- 
 ment would be responsible. Such navigation is clearly a 
 matter of national concern, and subject to national control. 
 In Padfio Coast Steamishyp Co. v. Board of Coimrdssioners^ 
 the same rule was applied to State regulation of rates for 
 transportation by sea between points in the same State. 
 Such transportation, it was said, is under the exclusive con- 
 trol of Congress. Only that transportation which is within 
 the State during its entire voyage is subject to its regulation. 
 As the ocean is an international highway, so the navigable 
 waters of the United States are national highways, and sub- 
 ject to Federal control. State regulations of domestic com- 
 merce may not, therefore, be given an operation which will 
 embarrass the carrier in its relations to the vessels of other 
 
 1 103 U. S. 541. 2 18 Fed. Rep. 10. 
 
DOMESTIC AIJD INTEESTATB COAIMEEOE. 87 
 
 States and interfere witli the operation of Federal laws. 
 Thus, in Hoill v. DeCw/r^ it was held that a statute of Louisi- 
 ana requiring equal and separate accommodations for whites 
 and negroes could not determine the accommodations which 
 should be given to a passenger traveling from point to point 
 ia Louisiana by an interstate carrier operating on the Mis- 
 sissippi river. Lf one State could require that the accommo- 
 dations should be separate, another State might with equal 
 justice require that the two races should share the same ac- 
 commodations. On one side of the river the carrier would 
 be subject to one set of rules and on the other side to an- 
 other. Commerce could not flourish in the midst of such 
 embarrassments. 
 
 In the case of railways, compliance may be made with such 
 a statute by adding to trains within the state a separate car 
 for colored passengers. " This may cause an extra expense 
 to the railroad company; but not more so than State stat- 
 utes requiring certain accommodations at depots, compelling 
 trains to stop at crossings of other railroads, and a multi- 
 tude of other matters confessedly within the power of the 
 State." These regulations, so long as they do not operate 
 upon interstate passengers, are valid.^ 
 
 A State statute which attempts to determine whether in- 
 terstate passengers should, in any portion of their journey, 
 share their accommodations with passengers of another race, 
 seeks to regulate interstate commerce in matters which be- 
 long to Congress alone.' 
 
 Domestic Commerce "by Land Through Other States. — A 
 similar rule has been applied to transportation by land from 
 point to point in the same State, passing through another 
 State. 
 
 The conditions tinder which such transportation is con- 
 ducted differ widely from the conditions which surround 
 
 ' 95 IT. S. 485. ' Anderson v. Louisville, etc. Ry. 
 
 2 Louisville, etc. Ry. Co. v. Mis- Co., 63 Fed. Rep. 46; Carrey v. 
 sissippi, 133 U. S. 587. Spencer, 73 N. Y. St. Rep. 108. 
 
88 EOMESTIO AUD INTSESTATE COMMEEOE. 
 
 navigation; and yet it is apparent in one case, as in the 
 other, that the transportation is not a matter "which concerns 
 alone the domestic affairs of a single State, but is a part of 
 that commerce extending beyond State lines which is within 
 Federal jurisdiction. 
 
 It is probable, however, that the difference is on one side 
 of the line only. In the case of commerce commencing in 
 Pennsylvania and passing through New York, it is immate- 
 rial, in measuring the powers of the latter State, whether 
 the commerce terminates in Pennsylvania or in Ohio. In 
 measuring the powers of Pennsylvania, however, this fact is 
 of great importance. If goods are transported from point 
 to point in the State, aE. matters relating to their purchase 
 and sale concern that State alone, and the Federal power 
 is involved only to the extent of securing free transporta- 
 tion. 
 
 The cases which have arisen on this subject have involved 
 validity of State regulation of freights, and of State taxar 
 tion. In one of the cases the question concerned the valid- 
 ity of regulations of freight established by the Eailroad 
 Commission of Minnesota for transportation from Duluth 
 to St. Paul, passing more than half the distance through the 
 State of "Wisconsin. 
 
 The expense of transportation depends largely upon rates 
 of taxation, obligations and responsibilities imposed by law 
 upon railway companies in different jurisdictions, and each 
 State in its legislation must take into consideration these 
 facts, and the physical geography of the country, the density 
 of its population and amount of business. What is a proper 
 charge for transportation in one State may, therefore, not be 
 reasonable in another.' 
 
 In the case referred to it was held that Minnesota could 
 not fix the rates in question.^ In Sternlerger v. Ca{pe Fea/r 
 
 1 CoTiagton, etc. Turnpike Co. v. 2 state v. Railroad Co., 40 Minn. 
 
 Sandford, 164 U. S. 578, 598; Swift 367; New Orleans Cotton Exchange 
 
 V. Philadelphia, etc. E. R. Co., 58 v. N. O. & T. P. By. Co., 2 Int. Com. 
 
 Fed. Rep. 858, 860. Rep. 519. 
 
DOMESTIC AHD INTEESTATE COMMEECE. 89- 
 
 c& Y. V. JR. R} a similar question arose, and was decided 
 against the power claimed by the State. In that case goods 
 had been shipped from one point to another in South Caro- 
 lina and carried over five railroads, two of these roads being 
 wholly within the State, one being wholly outside the State, 
 and two being partly within and partly without. It is clear 
 that the State had no jurisdiction over the road which was 
 entirely without her territory. The consequence was that, 
 whatever might be its power over roads partly or whoUy 
 within its boundaries, it could not enforce orders which con- 
 cerned a road in another State; and, so far as concerned the 
 two roads which were partly within and partly without its 
 limits, its jurisdiction was necessarily limited by the equal 
 power of a sister State. 
 
 It is apparent, too, that the power of the State in such 
 cases does not depend upon the number of carriers con- 
 cerned. If the whole transportation were conducted by 
 one corporation, which might or might not be in competition 
 with two or more carriers making a joint rate, its duties and 
 the powers of the State would be the same. It seems, there- 
 fore, that a State cannot regulate charges for such transpor- 
 tation.* 
 
 These decisions have not been followed in Missouri, North 
 Carolina and Iowa, where it has been held that a State 
 within whose limits transportation begins and ends may 
 regulate the rates for such carriage both as to amount ' and 
 by prohibiting a greater charge for a short distance than 
 for a longer distance under circumstances substantially sim- 
 ilar.* 
 
 The courts by which these cases were decided considered 
 
 1 29 S. C. 510. missioners, v. Chicago, etc. Ey. Co., 
 
 2 Lord V. Steamship Co., 103 IT. S. 86 Iowa, 587; State ex reL Commis- 
 
 541; Pacific Coast S. S. Co. v. Board, sioners v. 'Western Union TeL Co., 
 
 18 Fed. Eep. 10; Milk Producers' 113 N. C. 313; LeaveU v. Western 
 
 Ass'n V. Delaware, etc. Ey. Co., 7 Union TeL Co., 116 N. C. 211. Conf, 
 
 Int. Com. Eep. 92. Conf. New Or- Burlington, C. E. & N. E.Co. v. Dey, 
 
 leans Cotton Exchange v. EaUway 83 Iowa, 312. 
 
 Co., 3 Int. Com. Eep. 389. < Seawell v. Kansas City, etc. Ey.. 
 
 8 CampbeU et aL, Eailway Com- Co., 119 Mo. 233. 
 
90 DOMESTIC AOT) INTEESTATE COMMEEOE. 
 
 the question controlled by the decision in Lehigh Valley B. 
 a. Co. V. Pemnsyl/ocmia} That case involved State taxation 
 of gross earniags of the railway company within the State. 
 The receipts upon which the dispute arose were derived 
 from transportation from Mauoh Chunk, in Pennsylvania, 
 through New Jersey to Philadelphia, and the tax, being 
 proportioned to the mileage within the State, would be sus- 
 tained, even if levied upon receipts derived from transporta- 
 tion from one State to another.^ It is not certain, however, 
 that regulation of interstate rates wiU always be sustained 
 in cases where taxation of such rates wOl be. The transpor- 
 tation is a unit, and the rate charged is a unit, — a single fare 
 for a single service. A part of the rate which fairly repre- 
 sents travel within the State may perhaps be taxed without 
 reference to the part which is earned outside the State ; ' but 
 partial regulation is impossible.* Furthermore, it should be 
 noticed that, apart from the possible difference between tax- 
 ation and regulation of rates, there is, since the passage of 
 the Interstate Commerce Act, an express limitation upon the 
 powers of the State to regulate rates which does not exist in 
 the taxation of rates. It seems, therefore, that the Lehigh 
 Valley case does not support State regulation of interstate 
 rates, and that, as concerns this subject, the rule which will 
 probably be followed is that announced in the earlier cases. 
 
 Carriers Operating Witliin a Single State. — It is well es- 
 tablished that when a commodity has been delivered to a 
 common carrier for continuous transportation to a point be- 
 yond the limits of the State, interstate or foreign commerce 
 has begun. If a carrier is engaged in such transportation, it 
 is, to that extent, engaged in interstate or foreign commerce,' 
 
 1 Lehigh Valley E. R. Co. t. Penn- s Maine v. Grand Trunk E. R. Co., 
 sylvania, 145 U. S. 193; Common- 143 U. S. 317. 
 
 wealth V. Lehigh Valley R. E. Co., < Wabash E. R. v. Illinois, 118 TJ. S. 
 
 129 Pa. St. 308; Lehigh Valley R. R. 557. Conf. DiUon v. Erie R. R., 43 
 
 Go. V. Commonwealth, 1 Monoghan, N. Y. Supp. 330. 
 
 45. 5 Houston, etc. E. E. Co. v. Dumas 
 
 2 Maine v. Grand Trunk R. R. Co., (Tex. Civ. App.), 43 S. W. Rep. 609. 
 143 U. S. 317. 
 
DOMESTIC AND INTERSTATE COMMEECE. 91 
 
 notwithstanding that its operations are confined within the 
 limits of a single State, and that it does not operate in con- 
 nection with any carrier whose line extends beyond.^ Thus, 
 it has been held that a license fee imposed by the city of 
 Chicago upon tug-boats enrolled and licensed under Federal 
 law, and employed in towing vessels into and through the 
 harbor of Chicago and along the Chicago river, is in con- 
 flict with the exclusive powers of Congress to regulate com- 
 merce.^ 
 
 Independent carriers operating whoUy within a single 
 State, not in connection with an interstate carrier, may pos- 
 sibly present questions somewhat different from those pre- 
 sented by the tug-boat. The independent carrier, it is said, 
 is not bound to assume responsibilities for carriage beyond 
 its line. It may receive from, and deliver to, other carriers, 
 as it receives from and delivers to merchants. 
 
 That the consignor may be a carrier which has brought 
 goods within the State, and forwards them as part of a con- 
 tinuous act of transportation, or that the consignee may be 
 a carrier taking the goods beyond the State, does not, it is 
 said, bring the domestic carrier within Federal control, or 
 alter its obligations. Until by its own act it becomes a 
 party to transportation across State lines, its service is the 
 same for aU, and, being limited to points within a single 
 State, is of no different character when performed for indi- 
 viduals than it is when performed for other carriers.' 
 
 In BanJ/road Co. v. Interstate Corrumerce Com/mission,^ com- 
 monly known as the Social Circle case, this question was 
 argued but not decided. The current of decisions indi- 
 cates that the question whether a carrier is engaged in 
 
 iThe Daniel Ball, 10 WaD. 557, leans v. Tow Boat Co., 33 La. Ann, 
 
 565; Mattingly v. Pennsylvania, 3 647. 
 
 Int. Com. Rep. 806; Ex parte Koeh- SHeiserman v. Railroad Co., 63 
 
 ler, 30 Fed. Rep. 867; 25 Fed. Rep. 91. Iowa, 783; Railway Co. v. Sher- 
 
 2 Harmon V. City of Chicago, 147 wood, 84 Tex. 135; The Thomas 
 
 U. S. 396; Foster v. Davenport, 33 Swan, 6 Ben. 43; The Bright Star, 
 
 How. 344 Conf. City of New Or- 1 WooL 366. 
 
 ♦163X7.8.184 
 
92 DOMESTIC AOT) INTEESTATE COMMEECE. 
 
 interstate commerce is one of fact, and is not determined by 
 the declaration of tlie carrier, or the form in which its con- 
 tract is made. The obligation to receive and transport 
 goods and persons extends as much to those destined to 
 points beyond the State as to those within. The question 
 whether a carrier is engaged in interstate commerce de- 
 pends, therefore, not alone upon its yoluntary act, but upon 
 the destination of that which is carried. If a carrier, by 
 contracting only for transportation upon its own line within 
 a State, might keep without Federal jurisdiction, there would 
 arise a method of conducting commerce beyond the effect- 
 ual control either of the Federal government or that of the 
 States. 
 
 In Houston Direct Navigation Co. v. Inswra/nce Co} it was 
 shown that the Navigation Company was engaged in trans- 
 portation between Houston and Galveston, the freight be- 
 ing received for delivery to the Mallory Steamship Line, 
 by which it was to be transported to New York and from 
 there to Liverpool. The Navigation Company gave a bill 
 of lading from Houston to Galveston only. It did not par- 
 ticipate in through rates, and assumed no liability beyond 
 its own line. At the time of the delivery of the freight to 
 the Navigation Company, however, its final destination was 
 beyond the limits of the State, and it was shown from the 
 biU of lading, and from other testimony, that a continuous 
 voyage was contemplated. Upon these facts it was held 
 that the transportation from Houston to Galveston was one 
 of the operations of interstate commerce and within Federal 
 jurisdiction.^ This is also the conclusion which the Inter- 
 state Commerce Commission adopted in several cases. In 
 Boa/rd of Trade of Troy v. Alahamia Midland My? the Com- 
 mission said that under any other rule the most vital pro- 
 
 1 89 Tesu 1. App.), 43 S. "W. Rep. 614; Gulf, etc. 
 
 2 Houston Direct Navigation Co. Ry. Co. v. Barry (Tex. Civ. App.), 45 
 
 V. Insurance Co., 89 Tex. 1; State v. S. W. Rep. 814 
 Gulf, etc. Ry. Co. (Tex. Civ. App.), H Int. Com. Rep. 348; Georgia 
 
 44 S. W. Rep. 542. Conf. Galveston, R. Com. v. Clyde & & Co., 4 Int. 
 
 etc. Ry. Co. v. Armstrong (Tex. Civ. Com. Rep. 120. 
 
DOMESTIC AND INTERSTATE COMMEECE. 93 
 
 ■visions of the Federal law might be evaded. " For instance, 
 a terminal carrier, part of a continuous through Une, could 
 elect to charge on through traffic its local rate to one or any 
 number of stations on its road and a less through rate to 
 stations beyond, and no violation of law could be alleged 
 because as to the short haul the carrier would not be sub- 
 ject to the Act. The charge of a local rate and declaration 
 by a carrier that as to through transportation to certain 
 points on its road it is a local carrier, cannot alter the fact." 
 ..." The facts, that the carriage is continuous, that the 
 traffic is through interstate traffic and that the carrier in 
 due and ordinary course of business accepts and forwards it, 
 are sufficient to establish responsibility under the law." 
 
 The transportation whoUy within a State which is beyond 
 the jurisdiction of Congress is that which, in fact, originates 
 and ends in the State. It may often be that the carrier's 
 service is confined to the limits of a single State; but if, 
 in performing this service, it is an instrument of commerce 
 among the States, it is subject to Federal control for aU the 
 purposes of that commerce.^ 
 
 The fact that each carrier uses its own way-bill does 
 not prevent the transportation from being interstate.^ The 
 through bill of ladiug is a facility, but not a necessity for the 
 interchange of freight.' 
 
 To constitute interstate transportation of passengers it is 
 not necessary that through tickets be used * or that through 
 rates be made.* 
 
 1 Mattingly v. Pennsylvania Co., 527; Cutting v. Florida Ry. & Navi- 
 3 Int. Com. Rep. 806; Mexican Nat. gation Co., 46 Fed. Eep. 641; Ex 
 Ey. V. Savage (Tex. Civ. App.), 41 parte Koehler, 30 Fed. Rep. 867; 
 S. W. Eep. 663; U. S. v. Steamboat Houston Direct Navigation Co. v. 
 "Sunswick," 15 Int. Rev. Reo. 154; Insurance Co. of North America, 
 Augusta S. R. Co. v. WrightsviUe & 89 Tex. 1, reversing (Tex. Civ. App.) 
 T. R. Co., 74 Fed. Rep. 523; Cutting 31 S. W. Eep. 560, 685. Conf. The 
 V. Florida Ry. & Nav. Co., 46 Fed. Daniel Ball, 10 WaM. 557; United 
 Rep. 641 ; Ex parte Koehler, 30 Fed. States v. Steamboat " Sunswick," 15 
 Rep. 867. Int. Rev. Rec. 154 
 
 2 Hardy v. Atchison, T. & S. F. Ry. * Pacific Steamboat Co. v. Board 
 Co., 33 Kan. 698. of Railway Commissioners, 18 Fed. 
 
 3 Augusta S. R. Co. v. Wrights- Rep. 10. 
 
 ville & T. R Co., 74 Fed. Rep. 523, s Augasta S. R. Co. v. Wrights- 
 
94 DOMESTIC AND INTBESTATE COMMEECE. 
 
 Extent of Interstate Commerce Act. — The Interstate Com- 
 merce Act is limited in its operations to carriers under com- 
 mon control, management or arrangement for continuous 
 carriage or shipment beyond the limits of a single State. 
 Transportation conducted by a carrier within a State, and 
 "without conventional division of charges or other common 
 control or arrangement, is not within the purview of this 
 act.' 
 
 Common Control. — Where a domestic carrier, by any ar- 
 rangement with connecting lines, joins in interstate com- 
 merce, as by transporting traffic under through bUls of lading 
 for continuous carriage, it comes within the provision of the 
 law, although no previous formal contract has been made.^ 
 Where a railroad forms a part of a through route between 
 States,' or joins in making a through rate,* it subjects itself 
 to the Interstate Commerce Act, and may not limit its ef- 
 fect to certain points on its road and exclude other points.* 
 
 Handling at Terminal Points. — The fact that shipments 
 have not left the place of origin, or that they have reached 
 the place of destination, does not necessarily exclude Eederal 
 jurisdiction. The right of Congress to control interstate 
 
 viUe & T. R. Co., 74 Fed. Rep. 533; Com. Com., 163 TJ. S. 184; Trammell 
 
 Houston Direct Navigation Co. v. v. Clyde S. S. Co., 4 Int. Com. Eep. 
 
 Insurance Co. of North America, 89 131; Board of Trade v. Alabama 
 
 Tex. 1, reversing (Tex. Civ. App.) Midland Ry. Co., 4 Int. Com. Eep. 
 
 31 S. W, Rep. 560, 685; Board of 348. Conf. Ft Worth, etc. Ry. Co. 
 
 Trade of Troy, Ala., v. Alabama v. Whitehead, 6 Tex. Civ. App. 595; 
 
 Midland Ry. Co., 4 Int. Com. Rep. Houston, etc. Ry. Ca v. Dumas 
 
 348. Conf. Cincinnati, N. O. & P. (Tex. Civ. App.), 43 S. W. Rep. 609. 
 
 R. Co. V. Interstate Commerce Com- « Norfolk & Western Ry. Co. v. 
 
 mission, 163 U. S. 184 Commonwealth, 136 U. S. 114; 
 
 1 United States ex reL Int. Com. United States v. B. & A. R. Co., 15 
 Com. V. Chicago K S. R. Co., 81 Fed. Fed. Rep. 309; United States v. Sear 
 Rep. 783; Int Com. Com. v. Bel- board Ry. Co., 83 Fed. Rep. 563. 
 laire, Z. & C. R. Co., 77 Fed. Rep. « Texas & P. R. Co. v. Avery 
 943; New Jersey Fruit Exchange v. (Tex. Civ. App.), 33 S. W. Rep. 704 
 Central Ry. Co., 3 Int. Com. Rep. 84 « Cincinnati, etc. Ry. Co. v. Int. 
 
 2 Cincinnati, etc. Ry. Co. v. Int Com. Com., 163 U. S. 184 
 
DOMESTIC AND INTEESTATE COMMEEOE. 95 
 
 commerce is not limited to the actual transportation, but 
 covers necessary handling and delivery of that commerce at 
 terminal points. 
 
 The switching and delivering of freight by railroads is 
 regulated by the Interstate Commerce Act.' "WTiere switch- 
 ing of interstate freight is done by a carrier which joins in 
 a common control, management or arrangement for a con- 
 tinuous carriage, the Federal act excludes State control,^ 
 though damages may be recovered in a State court for 
 breach of the carrier's common-law duty to make a custom- 
 ary delivery on a side track.' But if the carrier does not 
 join in the interstate transportation so as to come within 
 the act, but renders an independant switching service in a 
 single State, such switching may be regulated by that State 
 as a local matter.* 
 
 Teanspoetation TJpok Navigable Watees. 
 
 The Constitution provides that the judicial power of the 
 TJnited States shall extend to all cases of admiralty and 
 maritime jurisdiction, but no corresponding legislative au- 
 thority is granted to Congress. The implication seems to 
 be that the jurisdiction given to the courts was chiefly to 
 enforce the general maritime and international law,* al- 
 though to some extent Congress might legislate upon the 
 subject under the powers which had been specifically granted 
 to it. 
 
 When the Constitution was framed admiralty jurisdiction 
 was limited to tide-waters, and these were, for the most part, 
 accessible to vessels of foreign nations.* With the growth of 
 
 1 Fielder v. Missouri, K & T. Ey. Fed. Eep. 849. See also Iowa v. 
 Co. (Tex. Civ. App.), 42 S. W. Eep. Chicago, etc. Ey. Co., 33 Fed. Eep. . 
 363 ; Walker v. Keenau, 73 Fed. Eep. 391. 
 
 755. 6Xhe Federalist, LXXX; The 
 
 2 Fielder v. Missouri, K & T. Ey. Moses Taylor, 4 WaU. 430. 
 
 Co. (Tex Civ. App.), 43 S. W. Eep. 363. « The Thomas Jefferson, 10 Wheat 
 'Id, 438; Moore v. American Transpor- 
 
 i Chicago, etc. Ey. v. Becker, 33 tation Co., 24 How. 1. 
 
'98 DOMESTIC AlfD INTERSTATE COMMERCE. 
 
 traffic upon the internal waters of the country, the necessity 
 for the extension of admiralty jurisdiction over aU navigable 
 waters, whether influenced by tide or not, became apparent. 
 It was not, however, until 1851, by the decision in Oenesee 
 Chief V. Fitzhugh^ that admiralty jurisdiction was extended 
 to waters beyond reach of the tides. 
 
 The language and decisions of the court, it was said, when- 
 ever a question of admiralty jurisdiction had come before it, 
 had seemed to imply that under the Constitution admiralty 
 jurisdiction was confined to tide-waters. Yet the conviction 
 that this definition of admiralty powers was narrower than 
 the Constitution contemplated had grown stronger every 
 day, with the growing commerce on the lakes and navigable 
 rivers of the "Western States, and the difficulty which the 
 language of the court had thrown in the way of extending 
 it to these waters was, perhaps, the cause of the inquiry 
 whether the power of Congress could not be supported under 
 the authority to regulate commerce. The statute which was 
 involved in the case, however, contained no regulation of 
 commerce nor any provision in relation to shipping or navi- 
 gation on the lakes. It conferred a new jurisdiction on the 
 district courts with reference to vessels on the lakes and 
 rivers, and such an enactment is not a regulation of com- 
 merce. Jurisdiction to entertain commercial causes gives a 
 court power to expound the laws by which commerce is reg- 
 ulated, but the decisions of the court are not regulations. 
 The statute, therefore, if valid, must be supported upon the 
 ground that the lakes and navigable waters within the country 
 are subject to the admiralty jurisdiction. It was evident, 
 the court said, that a definition which would exclude the Fed- 
 eral power from these waters would be inadmissible. There 
 were within the United States thousands of miles of nav- 
 igable water, including lakes and rivers, in which there is no 
 tide, and there could be no reason for admiralty jurisdiction 
 over a public tide-water which would not apply with equal 
 
 112 How. 443. 
 
DOMESTIC AND INTEESTATB COMMEEOB. 97 
 
 force to any public water used for commercial purposes and 
 interstate or foreign trade.^ 
 
 Extension of the admiralty jurisdiction of the Federal 
 government over waters within the country involved an 
 extension of the legislative power of Congress. It was not 
 possible that the body of law should remain forever unalter- 
 able, nor that such changes as were necessary should be intro- 
 duced only by judicial decisions.* Under earlier decisions 
 which followed the case of Genesee Chief, it was suggested 
 that the power of Congress was derived from its power over 
 interstate and foreign commerce. " The scope of the mari- 
 time law and that of commercial regulation are not coter- 
 minous, it is true, but the latter embraces much the larger 
 portion of ground covered by the former." ..." The 
 power to regulate commerce is the basis of the power to reg- 
 ulate navigation and navigable waters and streams." ' 
 
 It was clear, however, that no legislative power would be 
 adequate unless it was as extensive as the admiralty juris- 
 diction given to the courts. All jurisdiction over admiralty 
 cases had been taken from State governments.* The neces- 
 sities of the case, therefore, required legislation by Congress, 
 and this legislation the courts finally supported. The Fed- 
 eral legislative power, the court said, " is not confined to the 
 boundaries or class of subjects which limit and characterize 
 the power to regulate commerce; but, in maritime matters, 
 it extends to aU matters and places to which the maritime 
 law extends." ' 
 
 1 Genesee Chief v. Fitzhugh, 13 Butler v. Boston Steamship Co., 130 
 How. 443; Barney v. Keokuk, 94 U. S. 537, 555. 
 
 U. S. 334 * Act of Sept 34, 1789, TT. S. Rev. 
 
 2 The Lottawanna, 31 Wall 558, Stat, sec. 563; The Hiae v. Trevor, 
 577. 4 Wall 555; The Moses Taylor, 4 
 
 'The Lottawanna, 31 WalL 558, WalL 411; Stewart v. Harry, 3 
 577; Stockton, etc. v. B. & N. Y. R. Bush, 438; The Barque Chusan, 3 
 R Co., 33 Fed. Rep. 9, 30; Gilman Story, 455. 
 
 V. Philadelphia, .3 WalL 713, 734; 5 in re Garnet 141 U. S. 1, 13. See 
 Allen V. Newberry, 31 How. 344; Providence & N. Y. S. S. Co. v. HUl 
 
 Manuf. Co., 109 U. S. 578. 
 
98 DOMESTIC AHD IHTEESTATE COMMEEOB. 
 
 Extent of Federal Jurisdiction Over Navigation. — The 
 jurisdiction of the United States over transportation by 
 water and over the waters themselves is derived, therefore, 
 not alone from the commerce clause, but also from the ad- 
 miralty powers of the general government, which includes 
 the control of national waterways and of national vessels. 
 Federal jurisdiction over these subjects is, therefore, far 
 more extensive than its jurisdiction over carriers and trans- 
 portation by land. 
 
 All maritime causes, without exception as to subject or 
 parties, are within Federal control, and this whole jurisdic- 
 tion has been by the judiciary act of 1Y89 vested in the 
 United States District Courts, " saving to suitors in all cases 
 the right of common law remedy when the common law is 
 competent to give it.''^ 
 
 Within this very extensive jurisdiction fall all marine con- 
 tracts and torts, — contracts to be performed upon the high 
 seas or public navigable waters of the United States, and 
 wrongs done upon those seas and waters. In all these cases 
 the test of Federal jurisdiction is that of locality .'^ 
 
 Definition of Public NavigdbW Waters. — The question, 
 what constitutes a public navigable water of the United 
 States, is one of fact. If a body of water forms by itself, 
 or by its connection with other waters, a continuous high- 
 way over which commerce may be carried on in the custom- 
 ary modes by which such commerce is conducted by water, 
 vsdth other States or foreign countries, it is a public navi- 
 gable water of the United States,' and for the regulation and 
 protection of such commerce is subject to the public ease- 
 
 lU. S. Rev. St., sec. 563. SThe Montello, 11 Wali 411, 20 
 
 2 Ex parte Easton, 95 U. S. 68; id. 430; Esoanaba Go. v. Chicago, 
 
 The Belfast, 7 Waa 634, 643; Jer- 107 U. S. 678, 683; The Daniel BaU, 
 
 vey V. The Carolina, 66 Fed. Rep. 10 WaU. 557; Chisolm v. Gaines, 67 
 
 1013; United States v. Burlington, Fed. Rep. 285; Little Rock & M. R. 
 
 etc. Ferry Co., 21 Fed. Rep. 381; Go. v. Brooks, 89 Ark. 403; Gihnan 
 
 United States v. Beacham, 39 Fed. v. Philadelphia, 8 WaU. 713, 724; 
 
 Rep. 284. Albany Bridge Case, 2 Wall. 403. 
 
DOMESTIC AND INTEESTATE COMMEKCE. 99 
 
 ment and Federal control as far as navigability extends.^ 
 If it does not form such a highway it is subject only to State 
 control.^ The banks of the stream or body of water, and 
 the soil beneath the water within the territorial limits of 
 the State, are subject to its exclusive jurisdiction, so far as 
 is consistent with the paramount authority of Congress. 
 The State may therefore regulate the mode of enjoyment 
 of such public rights as result from ownership of the soil or 
 from its ordinary jurisdiction.' The control of the highway 
 belongs, however, not to the State, but to the Federal govern- 
 ment ; for this purpose it is " the public property of the nation 
 and subject to aU the requisite legislation of Congress." * 
 
 The distinguishing test between those streams which are 
 private property and those which are subject to public use 
 and enjoyment is in the determination whether they are sus- 
 ceptible of use as a common passage for the public in passing 
 from State to State. 
 
 Streams Not Accessible from Other States. — The Federal 
 power over navigable waters does not include the control of 
 navigation conducted upon the internal waters of a State 
 not accessible from other States,^ even when the trade is 
 conducted with Indian tribes.* 
 
 Artificial Highways. — If a stream be in fact accessible 
 from other States, it is immaterial that in its natural con- 
 
 1 Neaderliouser v. State, 28 Ind. rub, 95 Ala. 176; Smith v. Maryland, 
 257; United States v. Eio Grande 18 How. 71; McCready v. Virginia, 
 Dam, etc. Co. (N. M.), 51 Pac. Eep. 94 U. S. 391; Corfleld v. CoryeU, 4 
 674 ■Wa;sh. C. C. E. 371; St. Anthony 
 
 2 The Montello, 11 Wall 411, 20 Falls, etc. Co. v. St. Paul, 168 U. S. 
 id. 430 ; Commonwealth v. King, 150 349. 
 
 Mass. 221; Moor v. Veazie, 32 Ma < Oilman v. Philadelphia, 3 WalL 
 
 343; Veazie v. Moor, 14 How. 568; 713, 725. 
 
 St. Anthony Falls, etc. Co. v. St. » Commonwealth v. King, 150 
 
 Paul, 168 U. S. 349; United States Mass. 321; The MonteUo, 11 Wall. 
 
 V. Rio Grande Dam, etc. Co. (N. M.), 411. 
 
 51 Pac. Eep. 674. « Moor v. Veazie, 33 Me. 343; Vea- 
 
 3 Seepost, pp. 135, 151 ; State v. Har- zie v. Moor, 14 How. 568. 
 
100 DOMESTIC AND INTEESTATE COMMEECE. 
 
 dition it was not an interstate highway,^ nor tliat it may 
 be entirely of artificial construction.^ The rule that those 
 waters are only to be considered public waters of the United 
 States which ia their natural condition constituted a high- 
 way of interstate transportation " cannot be adopted, for it 
 would exclude many of the great rivers of the country, which 
 were so iaterrupted by rapids as to require artificial means 
 to enable them to be navigated without break. Indeed, 
 there are but few of our fresh-water rivers which did not 
 originally present serious obstructions to an uninterrupted 
 navigation." ' 
 
 Navigability Not Determined iy Means of Transporta- 
 tion. — Nor does the navigability of a stream depend upon 
 the means by which commerce upon it may be conducted, 
 whether by steamers, sailing vessels or rafts, nor upon the 
 difficulties attending navigation. Capability of use by the 
 public affords the true criterion of the navigability of a 
 river rather than the extent and manner of use.* 
 
 ]N"avigation by vessels is but a branch of commerce, and, 
 when navigable streams are best fitted for other means of 
 water transportation, it is the interest of the public to pre- 
 serve them for the purposes to which they are best adapted.' 
 
 At the same time, commerce upon a stream may be so 
 limited as properly to be ignored. It is not every ditch ia 
 which the tide ebbs and flows through the extensive salt 
 marshes along the coast which can be considered a navigable 
 stream;' or, as was said in 27ie Montello, "it is not every 
 
 iThe Montello, 20 Wall 430. Co., 8 Biss. 334; Moore v. Sanbom, 
 
 2 Ex parte Boyer, 109 U.S. 639. 2 Mich. 519; Pound t. Turck, 95 
 
 3 The MonteUo, 20 "Wall 430, 439, IT. S. 459; Brown v. Chadbome, 31 
 443. Me. 9; United States v. Eio Grande 
 
 < Carter v. Thurston, 58 N. H. 104; Dam, etc. Co. (N. M.), 51 Pac. Rep. 
 
 The Montello, 30 WaK 430, 441. 674; Boykin v. Shaffer, 13 La. Ann. 
 
 See Inland Navigation Act of June 139; Towns of Wethersfleld and 
 
 7, 1897, Stat. 55th Cong., 1st Sess., Glastonburyv. Humphrey, 30 Conn, 
 
 p. 96; State v. White Oak River 318. 
 
 Corporation, 111 N. C. 661. « Groton v. Hurlburt, 33 Conn. 
 
 SHeerman v. Beef Slough Mfg. 177. 
 
DOMESTIC AND INTERSTATE COMMEECB. 101 
 
 small creek in -which a fishing skiff or gunning canoe can be 
 made to float at high water, which is deemed navigable,"' 
 but in order to give it the character of a navigable stream 
 " it must be generally and commonly useful to some purpose 
 of trade or agriculture." ^ 
 
 JExtent of Admiralty Jurisdiction. — All vessels navigat- 
 ing public waters of the TJnited States are subject to the 
 admiralty jurisdiction of the Federal government, whether 
 engaged in foreign or interstate commerce or not. Kules of 
 navigation, to be effectual for the protection of any vessels, 
 must control all vessels which navigate the same water.^ 
 
 Regulation of Vessels. — In the exercise of this jurisdic- 
 tion Congress has assumed control over all ships or vessels 
 of the TJnited States.' It is said that they are creations of 
 the legislation of Congress.* Much of their value is in their 
 national character and in the protection of the national 
 flag. Congress having secured the value of this species 
 of property may protect the rights of all persons dealing 
 therein,^ may control vessels and crews on the high seas 
 and in foreign ports,* and punish wilful injury thereto ' or 
 trespass thereon.* 
 
 1 The MonteUo, 20 WalL 430, 439; * White's Bank v. Smith, 7 WaU. 
 11 Wall. 411, 415. 646, 655. 
 
 2 Oyster PoUce Steamers of Mary- SThe Thomas Swan, 6 Ben. 42. 
 land, 31 Fed. Eep. 763. Conf. The Gretna Green, 20 Fed. 
 
 3U. S. Eev. Stat., tit. L., Eegula- Eep. 901; Bamaby v. State, 21 Ind. 
 
 tion of Vessels in Domestic Com- 450. 
 
 merce, sec. 4311 et seq. ; Act of ^ goott v. Sanford, 19 How. 614. 
 April 17, 1874 18 Stat. L. 30, Supp. ' United States v. Cole, 5 McLean, 
 
 R S. 8; Act of April 18,1874 18 513; United States v. Combs, 12 Pet. 
 
 Stat. L. 31, Supp. R. S. 8; Act of 72; Ex parte Pool, 2 Va. Cases, 276; 
 
 March 3, 1897, 29 Stat. L. 687; Act Eobertson v. Baldwin, 165 U. S. 275; 
 
 of Jan. 18, 1897, 29 Stat. L. 489; State Tonnage Tax Cases, 12 WalL 
 
 Act of June 7, 1897, Statutes of 1st 204 
 
 Session 55th Cong. 96; Act of June ^ United States v. Anderson, 10 
 
 26, 1884, 23 Stat. L. 53, Supp. E, S. Blatchf. 226. 
 440. 
 
102 DOMESTIC AHD INTBESTATE COMMEECE. 
 
 Instruments Affecting Title to Vessels. — Congress has also 
 provided for the registry, enrollment and licensing of vessels,^ 
 and the recording of iastniments affecting their title.^ These 
 regulations apply to aU vessels of the classes described in the 
 acts navigating public waters of the United States,' although 
 employed solely within a State.* Under the early decisions 
 it was held that a State might, notwithstanding the act of 
 Congress, require conveyances to be recorded with a State 
 officer in order to give constructive notice to third parties; ' 
 but later decisions have established that if a conveyance af- 
 fecting the title to a vessel is recorded as required by the 
 act of Congress, no further conditions of notice can be re- 
 quired by a State,* either by recording or change of posses- 
 sion,' and that recording under a State law does not give 
 constructive notice.* 
 
 Rule of the Boad. — The control of navigable waters as a 
 pubUo highway includes power to make the highway safe. 
 The rule of the road and other regulations established by 
 Congress are obligatory upon owners aad masters of all ves- 
 
 1 United States v. Craig, 28 Fed. » Thompson v. Van Veohten, 5 
 Rep. 795; State Tonnage Tax Cases, Abb. Pr. 458; Commissioners of 
 13 Wall. 304. See statutes cited in Pilotage of Mobile v. S. S. Cuba, 28 
 note 3, p. 101, supra. Ala,. 185; Parker Mills v. Jacot, 8 
 
 2 White's Bank v. Smith, 7 WalL Bos. 61; ^tna Ins. Co. v. Aldrioh, 
 646; Blanchard v. Brig Martha 36 N. Y. 93. 
 
 Washington, 1 Cliff. 463; United « White's Bank v. Smith, 7 WalL 
 
 States V. Craig, 38 Fed. Eep. 795; 646; Sinott v. Davenport, 23 How. 
 
 Foster V. Chamberlain, 41 Ala. 158; 227; Blanchard v. Brig Martha 
 
 Woodv.StookweIl,55Me.76; Shaw Washington, 1 Cliff. 463; Wood v. 
 
 V. McCandless, 36 Miss. 296; Law- StockweU,55Ma76; Haugv. Third 
 
 rence v. Hodges, 93 N. C. 672; Best National Bank, 77 Mich. 474; Rob- 
 
 V. Staples, 61 N. Y. 71. inson v. Eice, 3 Mich. 335; Shaw v. 
 
 s State Tonnage Tax Cases, 12 McCandless, 36 Mich. 296. 
 
 Waa 204, 315; Lawrence V.Hodges, 'Aldrich v. ^tna Co., 8 Wall. 
 
 92 N. C. 672; Best v. Staples, 61 491; Folger v. Weber, 16 Hun, 512; 
 
 N. Y. 71. Mitchell v. Steelman, 8 CaL 363. 
 
 ^Foster v. Davenport, 23 How. 344; 8 Perkins v. Emerson, 59 Me. 319. 
 Lawrence v. Hodges, 93 N. C. 673. 
 
DOMESTIC AND INTERSTATE OOMMEEOB. 103 
 
 sels navigating public waters, "whether they are or are not 
 engaged in interstate or foreign commerce.' 
 
 Local Regulations of Navigation. — It was at one time the 
 rule that navigation upon public waters of the United States 
 was subject to State regulation if the transportation was be- 
 tween ports in the same State, and upon this theory State 
 regulation of signal lights and the rule of the road was sus- 
 tained as applied to vessels upon domestic voyages.^ This 
 rule is now abandoned, but it is stUl held that there are some 
 regulations of navigation of a purely local character which 
 are within the power of the States.' Such was the ordi- 
 nance of New York, involved in The W. H. JBeamcm,^ that 
 vessels navigating a certain channel should do so as nearly 
 as possible in the center thereof. Regulations of speed near 
 wharves,' requiring the use of spark-arresters on steamers 
 navigating near buildings,* and prohibiting the emission of 
 dense smoke within the limits of a city,'' have aU been sus- 
 tained. 
 
 Inspection of Vessels, Licensing Officers, etc. — The early 
 decisions held that the Federal statutes requiring inspection 
 of hulls and boilers of steam vessels and licensiug of engi- 
 neers and officers did not apply to domestic transportation,' 
 or to the case of a tug used witMn a State towing vessels 
 
 1 Waring v. Clark, 5 How. 441. Lumber Co. v. Delta Transporta- 
 Conf. The Bright Star, 1 WooL 366. tion Co., 100 Mich. 16. 
 
 2 Fitch V. Livingston, 4 Sandf . ' Harmon v. City of Chicago, 110 
 493;Snowv. Hill.30How. 543, 551; IlL 400. 
 
 Steamboat New York v. Eea, 18 8 United States v. The James Mor- 
 
 How. 333. Conf. Halderman v. rison, Newb. 341; The Bright Star, 
 
 Beckwith, 4 McLean, 386. 1 WooL 366; The Thomas Swan, 6 
 
 3 Conf. Harrigan v. Lumber Co., Ben. 43; The William Pope, Newb. 
 139 Mass. 580. 356; The Tug Oconto, 5 Biss. 460; 
 
 * 45 Fed. Eep. 135. United States v. The Seneca, 1 Am. 
 
 6 People V. Jenkins, 1 HiH (N. T.), L. Reg. (N. S.) 381; Bamaby v. The 
 
 468; People v. Roe, 1 HiU, 470. State, 31 Lid. 450; Navigation Ca 
 
 6 Burrows v. Delta Transporta- v. Dwyer, 39 Tex. 376. 
 tion Co., 106 Mich. 583; Cheboygan 
 
104 DOMESTIC AND INTBESTATE COMMEECE. 
 
 engaged in interstate transportation,^ and the same view was 
 taken of the Federal statute concerning life-preservers, buck- 
 ets, eto.^ It is now established, however, that all vessels 
 navigating public national waters are subject to Federal in- 
 spection,' and this applies to a vessel owned by a State and 
 used in enforcing its fishery laws and relieving distressed 
 vessels.* State laws requiring inspection of vessels operating 
 between ports within the State are therefore superseded by 
 the Federal statute.' 
 
 In Ha/rtramft v. Du Pont^ the Federal statute relating to 
 inspection of steam vessels was applied to a small launch 
 used wholly within the State of Delaware, taking the owner, 
 and occasionally some of his employees, to and from their 
 place of work. Inspection of boilers and hulls, the court said, 
 is required not alone for the safety of the boat, its passen- 
 gers and crew, but also for the protection of other boats navi- 
 gating, the same waters or moored at the same docks. 
 
 Provisions Relating to Passengers. — It is held also that 
 the Federal statutes limiting the number of passengers which 
 a vessel may carry apply to vessels upon public navigable 
 waters, although engaged in transportation between ports in 
 the same State.'' 
 
 So where the master of a vessel engaged in domestic trans- 
 portation, by inattention to his duties, permitted a rail on the 
 
 iTheFarragut, 6Blatchf. 307. Oyster Police Steamers of Mary- 
 
 2 The Gretna Green, 20 Fed. Eep. land, 31 Fed. Eep. 703. 
 
 901 ; The Thomas Swan, 6 Ben. 43. 6 Caldwell v. Insurance Co., 1 La. 
 
 3 Rev. Stat. 4399 et seq. ; The Mon- Ann. 85. 
 
 teUo, 20 WaU. 430 ; The Daniel Ball, « 118 U. S. 323. 
 
 10 WalL 557; Bradley v. Northern 'The City of Salem, 38 Fed. Eep. 
 
 Transportation Co., 15 Ohio St. 553 ; 763 ; The City of Salem, 37 Fed. Eep. 
 
 United States v. Steamboat Suns- 846; United States v. Frank Sylvia, 
 
 vsdck, 6 Ben. 113, 15 Int. Eev. Eeo. 37 Fed. Eep. 155; United States v. 
 
 154. See Poree v. Cannon, 14 La. Burlington & Henderson County 
 
 Ann. 506. Ferry Co., 21 Fed. Eep. 331; The 
 
 *The Governor Eobert McLean Hazel Kirk, The Eosa, 23 Blatch. 
 
 V. United States, 35 Fed. Eep. 926; 292; s. o., 35 Fed. Eep. 601. 
 
DOMESTIC AHD INTERSTATE COMMEECE. 105 
 
 deck of a boat to be without a guard, an indictment was sus- 
 tained for AQolation of the Federal statutes.^ 
 
 In all such cases the Federal jurisdiction is derived not only 
 from the commerce clause, but from the admiralty power to 
 define torts or crimes in the navigation of vessels upon pub- 
 lic waters of the country. Yiolations of laws passed under 
 this authority faU within the admiralty jurisdiction.^ 
 
 Limitation of Liability. — Congress may limit the liability 
 of vessels or their owners incurred in the performance of 
 maritime contracts,' and for marine torts. Where the in- 
 jury is consummated on land, not on water, the subject is 
 without the Federal jurisdiction.* It was for some time con- 
 sidered that the Federal statute in regard to limitation of 
 liability applied only to vessels engaged in foreign commerce 
 and commerce among the States.' This limitation is now 
 abandoned. In Lord v. Steamship Co^ the Federal statute 
 limiting liability was applied in the case of a vessel navi- 
 gating the Pacific ocean between ports in the State of Cali- 
 fornia. The ocean, the court said, belongs to no one nation, 
 but is the common property of all. When, therefore, the 
 vessel left the ports of California on her different voyages, 
 she entered upon a navigation which was necessarily con- 
 nected with other nations. " While on the ocean her national 
 character only was recognized, and she was subject to such 
 laws as the commercial nations of the world had, by usage 
 or otherwise, agreed on for the government of the vehicles of 
 
 1 United States v. Beacbam, 29 American Transportation Co., 1 
 Fed. Eep. 384 Flip. 0. C. Eep. 1. 
 
 2 United States v. Burlington & 6 Moore v. American Transpor- 
 Henderson County Ferry Co., 21 tation Co., 24 How. 1; American 
 Fed. Rep. 331, 339; Janney v. Co- Transportation Co. v. Moore, 5 Mich. 
 lum.bian Insurance Co., 10 Wheat. 368. 
 
 411. 8103 U. S. 541. See Houston Di- 
 
 'U. S. Rev. Stat., seoa 4383, 4389; rect Navigation Co. v. Insurance 
 
 Supp. R. S. 443. Oo. of North America, 89 Tex. 1, re- 
 
 4 Johnson v. Chicago, etc. Ele- versing (Tex. Civ. App.) 31 S. W. 
 
 vator Co., 119 U. S. 388; King v. Rep. 560, 685. 
 
106 DOMESTIC AMD INTEBSTATE COMMEECE. 
 
 commerce occupying this common property of all mankind. 
 She was navigating among the vessels of other nations and. 
 was treated by them as belonging to the country whose flag 
 she carried. True, she was not trading with them, but she was 
 navigating with them, and consequently with them was en- 
 gaged in commerce." All such navigation affects the nation 
 in its external affairs and falls within Federal control. In 
 the case cited, the jurisdiction was based upon the Federal 
 power to regulate foreign commerce. Other decisions have 
 clearly established that the law limiting the liability of ship 
 owners is a part of the maritime code of the general govern- 
 ment co-extensive with the general admiralty and maritime 
 jurisdiction, and not limited by the restrictions upon the com- 
 mercial power. It extends, therefore, wherever public navi- 
 gation extends.^ 
 
 iln re Gamett, 141 IT. S. 1; But- 240; The Katie, 40 Fed. Rep. 480; 
 ler V. Boston Steamboat Co., 130 In re Petition of East Kiver Ferry 
 U. S. 537; Providence & New York Co., S6 Fed. Eep. 766; In re Good- 
 Steamship Co. V. Hill Mfg. Co., 109 rich Transportation Co., 26 Fed. 
 U. S. 578, 593; The Scotland, 105 Rep. 713. Oowira, In re Petition of 
 IT. S. 24, 29, 31; Norwich Co. v. Vessel-Owners' Towing Co., 26 Fed. 
 Wright, 13 WaU. 104, 127; In re Rep. 169. 
 Myers Excursion Co., 57 Fed. Rep. 
 
OHAPTEE IV. 
 
 CONTROL OF NAVIGABLE "WATERS. 
 
 The extension of Federal power to authorize improve- 
 ments, alterations and obstructions in navigable waters 
 involves the history of the long struggle over internal im- 
 provements, and presents one of the most marked instances 
 of the growth of Federal jurisdiction. 
 
 Such a power, President Monroe said,^ must, if it exists, 
 find its source by implication from one or more of six pro- 
 visions of the Constitution. It must be derived either, first, 
 from the power to establish post offices and post roads ; sec- 
 ond, from the power to declare war ; third, from the power 
 to regulate commerce ; fourth, from the power to pay the 
 debts and provide for the common defense and welfare of 
 the United States; fifth, from the power to make all laws 
 necessary and proper for carrying into execution the consti- 
 tutional powers of the Federal government; or sixth, from 
 the power to make needful rules and regulations respecting 
 the territory and other property of the United States. 
 
 The power to establish post roads. President Monroe says, 
 must be imderstood in the Constitution in the sense which 
 it had in the Confederation; and its history, as exercised by 
 the States and the Confederation, shows that it was noth- 
 ing more than a power to fix the places where post offices 
 should be established. In no instance, from the first settle- 
 ment of the country to the adoption of the Constitution, was 
 a post office established without a view to existing roads, 
 or was a single road made to accommodate a post office. It 
 is apparent, therefore, President Monroe argues, that it was 
 
 1 Views of President Monroe upon Internal Improvements, inclosed in 
 Message to Congress, May 4, 1833. 
 
108 CONTEOL OF NAVIGABLE WATEES. 
 
 not intended by this clause to give to the TJnited States ju- 
 risdiction over all the highways and turnpikes of the country. 
 
 Of the power to regulate commerce President Monroe dis- 
 poses very briefly. It involves little more, he says, than the 
 right to levy an impost on goods brought from foreign na- 
 tions and the power to prevent an impost on trade between 
 the States. 
 
 Of the other powers named, — the war power, the power to 
 make appropriations, to regulate the property of the general 
 government and to make all necessary laws to carry the 
 constitutional powers into execution, — none involved the 
 exercise of civil jurisdiction withtu a State, and without such 
 jurisdiction there would be no authority to make iuternal 
 improvements. 
 
 In this view it was long customary for aU improvements 
 of harbors and navigable waters to be made by the States 
 alone. Congress granting the right to lay duties at their ports 
 to raise necessary revenue. The purpose of the provision in 
 the Constitution that no tax or duty shall be laid by any 
 State upon exports or imports, without the consent of Con- 
 gress, was to provide for " such improvement in harbors and 
 other cases, having, like their inspection laws, relation to 
 their maritime commerce, as particular States might have a 
 local interest in making apart from, or in addition to, fed- 
 eral provision. That this was understood to be the meaning 
 of the clause, is demonstrated by the early, continued, and 
 only use made of the power granted by Congress. It appears 
 from the laws of the United States, that beginning with the 
 year 1Y90, and previous to the year 1815, the consent of Con- 
 gress, on applications from Massachusetts, Ehode Island, 
 Pennsylvania, Maryland, Yirginia, South Carolina, and Geor- 
 gia, was in pursuance of the tenth section, article one of the 
 Constitution, granted or renewed in not less than twenty in- 
 stances for State duties, to defray the expense of cleaning 
 out harbors or rivers, erecting piers or light-houses, or ap- 
 pointing health officers." ' 
 
 1 Letter of Madison to Professor stances are cted in a note: Acts 
 Davis, 1833. The following in- of Congress of August 11,1790; Jan- 
 
CONTEOL OF NAVIGABLE WATEKS. 109 
 
 The power to authorize erection, of bridges and dams was 
 another power which it was said necessarily belonged to the 
 States. "Any power which congress may have in regard 
 to such a structure is indirect, and results from a commer- 
 cial regulation. It may, under this power, declare that no 
 bridge shall be built which shall be an obstruction to the 
 use of a navigable water. And this, it would seem, is as far 
 as the commercial power of Congress can be exercised." 
 ..." If, under the commercial power congress may make 
 bridges over navigable waters, it would be difficult to find 
 any limitation of such a power." . . . "So extravagant 
 and absorbing a federal power as this rarely, if ever, has 
 been claimed by any one." ^ 
 
 If the Constitution were construed alone by the intention 
 of its framers, the conclusion that the Federal government 
 is without power to authorize improvements in navigable 
 waters within the territorial limits of a State would prob- 
 ably be sustained, but the judgment of history has been 
 otherwise. In the development of the govermnent it has 
 been found that possession of this authority is necessary for 
 the safety of the United States and to enable it to carry into 
 effect its other powers. 
 
 Federal AutJwrity Over Navigable Waters. — It is now 
 well settled that the Federal authority over navigable waters 
 includes not only the power to improve their navigation ^ 
 and to regulate their use as a highway,' but it includes also 
 authority to do everything necessary to make and keep the 
 highway open and safe. A State may not restrict the right 
 
 uary 10, 1791 ; March 19, 1793 ; Feb- * People v. Eensselaer, etc. Ry. Co., 
 
 ruary9,1791; June9, 1794;March2, 15 Wend. 113; Wheeliag Bridge 
 
 1795; May 12, 1796; March 27. 1798; Case, opinion of Mr. Justice Mc- 
 
 March 17, 1800; February 87, 1801; Lean, 18 How. 442. 
 
 April 14, 1802; March 16, 1804; 2-wisconsin v. Duluth, 96 U. S. 
 
 March 1, 1805; February 28, 1806; 379. 
 
 March 28, 1806; April 20, 1808; June 'Works v. Junction Ey. Co., 5 
 
 15, 1809; March 2, 1811; March 2, McLean, 435; Hoef t v. Seaman, 46 
 
 1813; AprU 16, 1814. How. Pr. 24 
 
110 
 
 CONTEOL OF NAVIGAJBLE ■WATEES. 
 
 of navigating public "water,^ nor may it impose any burden or 
 tax thereon. The Federal government may declare what 
 constitute obstructions in navigable waters,^ and may re- 
 quire their removal;' may make it unlawful, without per- 
 mission of the Secretary of War, to alter the channel of a 
 navigable river,* or to place any obstruction therein;' may 
 authorize erection of piers, dikes, etc. ;^ may close' or 
 change ^ outlets of lakes or rivers; may authorize the con- 
 demnation of private property,' and the collection of toUs 
 for the use of the improved channel." It may provide for 
 the construction and maintenance of light-houses and for the 
 survey of coasts, rivers and harbors ; " and may authorize the 
 taking for interstate commerce of soil under a navigable 
 stream without compensation to the State.^^ 
 
 1 Gibbons v. Ogden, 9 Wheat. 1; 
 North River Steamboat Co. v. Liv- 
 ingston, 3 Cow. 713. See Gibbons 
 V. Livingston, 6 N. J. L. 236, over- 
 ruling earlier cases, Livingston v. 
 Ogden, 4 Johns. Ch. 48; Ogden v. 
 Gibbons, 4 Johns. Ch. 150, 174; In 
 re Vanderbilt, 4 Johns. Ch. 57; 
 North Eiver Steamboat Co. v. Hoff- 
 man, 5 Johns. Ch. 800; Livingston 
 V. Van Ingen, 9 Johns. 507; Ogden 
 V. Gibbons, 17 Johns. 486. 
 
 2 Cardwell v. Bridge Co., 113 U. S. 
 205; Miller v. Mayor of New York, 
 109 U. S. 385; Bscanaba Co. v. Chi- 
 cago, 107 U. S. 678; South Carolina 
 V. Georgia, 93 IT. S. 4; Gihnan v. 
 Philadelphia, 3 "Wall. 713; State of 
 Pennsylvania v. Wheeling & Bel- 
 mont Bridge Co., 18 How. 421; 
 United States v. North Bloomfleld 
 Gravel Mining Co., 81 Fed. Rep. 243. 
 
 ' Removal of Obstruction to Nav- 
 igation, 15 Op. Atty. Gen. 284; 
 Coonley v. Albany, 133 N. Y. 145. 
 
 « City of Chicago v. Law, 144 111. 
 569. 
 
 5 United States v. Bums, 54 Fed. 
 Rep. 351. 
 
 *Soil Under Navigable Waters, 
 16 Op. Atty. Gen. 479; Improve- 
 ment of Navigable Waters, 17 Op. 
 Atty. Gen. 109; Covington Harbor 
 Co. V. Bridge Co., 23 Weekly Law 
 Bulletin, 34; MiUs v. United States, 
 46 Fed. Rep. 738; Gibson v. United 
 States, 166 U. S. 269; Improvement 
 of Navigable Waters, 18 Op. Atty. 
 Gen. 64; Improvement of Naviga- 
 ble Waters, 16 Op. Atty. Gen. 584. 
 
 "South Carolina v. Georgia, 93 
 U.S. 4. 
 
 8 Avery V. Fox, 1 Abb. 246; United 
 States V. Boom Co., 1 McCrary, 397. 
 
 9 United States v. Oregon Ry. & 
 Nav. Co., 16 Fed. Rep. 524; Monon- 
 gahela Navigation Co. v. United 
 States, 148 U. S. 313. 
 
 10 United States v. LouisviUe & 
 Portland Canal Co., 1 Flip. 260. 
 
 11 United States v. Rhodes, 1 Abb. 
 49. 
 
 12 Stockton V. Baltimore, etc. Ry. 
 Co., 32 Fed. Rep. 9. 
 
OONTEOL or NAVIGABLE WATEES. 
 
 Ill 
 
 It is also established by a long course of decisions that 
 Congress may authorize the construction of bridges^ and 
 dams^ in navigable waters; it may authorize a private cor- 
 poration to construct a bridge over navigable waters partly 
 within a State, notwithstanding the protest of the State,' and 
 where necessary for this purpose may authorize the con- 
 demnation of land and appropriation of soU under water for 
 support of piers;* it may determine -what municipal law 
 shall prevail upon the bridge ; ^ the compensation which shall 
 be charged for its use,* and may give to Federal courts juris- 
 diction over litigation arising out of the construction, use or 
 operation of the bridge, or instituted for the condemnation 
 of landJ 
 
 The earlier doctrine seems to have been that any obstruc- 
 tion to navigation, whether by a State or individuals, was an 
 act of purpresture and open to remedy by the Attorney-Gen- 
 eral of the United States; ^ but it is more recently held that 
 
 iLuston T. North River Bridge 
 Co., 153 U. S. 525; MiUer v. Mayor of 
 New York, 109 U. 8. 385; Bridge Co. 
 V. United States, 105 U. S. 470; Pena- 
 sylvania v. Wheeling Bridge Co., 
 18 How. 431 ; Clinton Bridge Case, 
 10 WalL 454; Clinton Bridge Case, 
 Woolw. 150; United States v. Mil- 
 waukee & St. P. R. Co., 5 Biss. 430; 
 MiUer v. Mayor of New York, 13 
 Blatch. 469; Baird v. Shore Line R. 
 Co., 6 Blatch. 461; Texarkana & 
 Ft. Scott Ry. Co. v. Parsons, 74 Fed. 
 Rep. 408; United States v. Rider, 50 
 Fed. Rep. 406; State v. BoUer, 47 
 Fed. Rep. 415; St. Louis & St. P. 
 Packet Co. v. Keokuk Bridge Co., 
 31 Fed. Rep. 755; Decker v. Balti- 
 more & N. Y. Ry. Co., 30 Fed. Rep. 
 733; United States v. Pittsburg & 
 L. E. R. Co., 36 Fed. Rep. 113; Mis- 
 sissippi River Bridge Co. v. Lon- 
 geran, 91 HL 508; Chicago & A. B. 
 Co. V. Pacific Tel. Co., 86 Kan. 113; 
 
 People V.Kelly, 5 Abb. N. C. (N. Y.) 
 383; Winifrede Coal Co. v. Central 
 R & B. Co. (Ct. Com. PL), 24 W. L. 
 B. 173; Covington Harbor Co. v. 
 Phoenix Bridge Co. (Sup. Ct., Cin- 
 cinnati), 33 W. L. B. 34 
 
 2 Improvement of Navigable Wat- 
 ers, 17 Op. Atty. Gen. 109; MUls v. 
 United States, 46 Fed. Rep. 738. 
 
 3 Pennsylvania R. Co. v. Balti- 
 more & N. Y. R. Co., 37 Fed. Rep. 
 139. 
 
 4 Stockton V. B. & N. Y. R. Co., 33 
 Fed. Rep. 9; Decker v. Baltimore & 
 N. Y. R. Co., 30 Fed. Rep. 733. 
 
 8 Commissioners of Parks v. Com- 
 mon Council of Detroit, 80 Mich. 
 663. 
 
 " Canada So. Co. v. International 
 Bridge Co., 8 Fed. Rep. 190. 
 
 'Lincks v. Amend (N. J. Ch.), 33 
 AtL Rep. 755. 
 
 *Waukegan Breakwater, 6 Op. 
 Atty. Gen. 173. 
 
112 
 
 OONTBOL OF ITAVIGABLE "WATEES. 
 
 in the absence of legislation by Congress the regulation of a 
 navigable stream belongs to the States,^ and the government 
 cannot by bill or information prevent or abate an obstruc- 
 tion.'' Where Congress has assumed jurisdiction over a 
 stream, the United States may maintain an injunction bill to 
 prevent interference with navigation upon it/ and to protect 
 improvements made under its authority from injuries which 
 may be caused by other improvements under State author- 
 ity, or to prevent obstructions.* 
 
 By Federal legislation' every obstruction in navigable 
 waters is forbidden unless affirmatively authorized by law, 
 and it is provided that creating and continuing any unlaw- 
 ful obstruction may be prevented, and obstructions may be 
 removed, under the injunction of any Circuit Court exer- 
 cising jurisdiction in the district where the obstruction ex- 
 ists or is threatened, in proceedings in equity instituted 
 by the direction of the Attorney-General of the United 
 States. 
 
 An unlawful obstruction in public navigable waters which 
 threatens irreparable injury to an individual may be the 
 subject of relief in equity,* and, when constructed, may be 
 a public nuisance which any interested person may abate.'' 
 
 1 Navigation Co. v. Railroad Co., * United States v. Duluth, 1 DilL 
 88 Ky. 1. 469; Harbor Improvement at Chi- 
 
 2 United States v. Beef Slough, cago,17 Op. Atty. Gen. 379; United 
 etc. Co., 8 Biss. 431; United States States v. Boom Co., 1 McCrary, 397. 
 v. North Bloomfleld Gravel Mining 6 gee post, p. 136. 
 
 Co., 81 Fed. Rep. 3; Texas & P. R. « Texas & P. Ry. Co. v. Interstate 
 Co. V. New Orleans, 40 Fed. Rep. Ill; Transportation Co., 155 U. S. 585; 
 United States v. Railway Bridge Works v. Jimction Ry. Co., 5 Mo- 
 Co., 6 McLean, 517; Obstruction to Lean, 435; United States v. Railroad 
 Navigation, 15 Op. Atty. Gen. 515; Bridge Co., id. 517; Northern Pa- 
 State V. White Oak River Corpora- ciflc Ry. Co. v. Bamsville & M. R. 
 tion, 111 N. C. 661. Co., 3 MoCrary, 234; Devoe v. Pen- 
 
 3 United States v. Milwaukee & rose Ferry Co., 5 Pa. Law Jour. 
 St. P. R. Co., 5 Biss. 430; United Rep. 313. 
 
 States V. North Bloomfleld Gravel '' State v. Dibble, 4 Jones, L (N. 
 
 Mining Co., 81 Fed. Rep. 243; Har- C.) 107; Renwick v. Morris, 3 ffiU, 
 
 bor Improvement at Chicago, 17 621. 
 Op. Atty. Gen. 379. 
 
COITTEOL OF NATIGABLE 'WATEES. 
 
 113 
 
 Powers of the States to Improve Navigable Waters. — It 
 has always been the rule that, in the absence of Federal leg- 
 islation, the States may prevent obstruction of navigable 
 waters within their limits;^ may regulate the placing of 
 buoys and beacons; ^ the construction of wharves; ' and may 
 deepen channels,* change outlets of lakes and rivers,' con- 
 struct dams * and locks to increase the depth of water or for 
 other purposes, care being taken not to create serious impedi- 
 ment to the navigation of important waters; may construct 
 canals around falls, and improve their harbors and rivers 
 generally, and may coUect a charge from vessels ' using the 
 improved navigation, as a compensation for the facilities 
 thus afforded.^ 
 
 1 Coonley v. Albany, 132 N. T. 145 ; 
 Cox T. State, 3 Blackf. 193; lUinois 
 V. St. Louis, 5 Grilm. 351. 
 
 2 Mobile V. Kimball, 102 U. S. 691; 
 Stockton V. Powell, 29 Fla. 1. 
 
 'State Y. Sargent, 45 Conn. 358; 
 City of Savannah, v. State, 4 Ga. 26; 
 SuUivan v. Moreno, 19 Fla. 200; El- 
 dridge v. Cowell, 4 CaL 80; United 
 State V. Bain, 3 Hughes, 598; State 
 V. lUinois Central Ry., 83 Fed. Eep. 
 730, 146 U. S. 387. 
 
 4 MobUe V. KimbaU, 103 U. S. 691; 
 Morris v. State, 62 Tex. 728. 
 
 6 Commissioners of Homochitto 
 V. Withers, 29 Miss. 31; Withers v. 
 Buckley, 20 How. 84; Illinois v. St. 
 Louis, 5 GUm. 851. 
 
 6 Pound V. Turck, 95 U. S. 459; 
 WiUson V. Blackbird Creek Marsh 
 Co., 8 Pet. 245; Heerman v. Beef 
 Slough, etc. Co., 8 Biss. 334; Wood- 
 man V. Ejlboum Mfg. Co., 1 Abb. 
 158; Depew v. Canal Trustees, 5 
 Ind. 8; Egan v. Hart, 45 La. Ann. 
 1358; Butler v. State, 6 Ind. 165; 
 Hogg V. Zanesville Co., 5 Ohio, 410; 
 Flanagan v. PhUadelphia, 42 Pa. St. 
 8 
 
 S19; Keator Lumber Co. v. St. Croix 
 Boom Co., 73 Wis. 62; Stoughton v. 
 State, 5 Wis. 291 ; Glover v. PoweU, 
 10 N. J. Eq. 211; Brown v. Com- 
 monwealth, 3 S. & R. 278; Bacon v. 
 Arthur, 4 Watts, 487. Contra, Cox 
 V. State, 8 Blackford, 193. 
 
 'Sands V. Manistee River Imp. 
 Co., 128 U. S. 388; Packet Co. v. 
 Catlettsburg, 105 IT. S. 559; Mobile 
 V. KimbaU, 103 U. S. 691; Stockton 
 V. Powell, 29 Fla. 1; Depew v. Canal 
 Trustees, 5 Ind. 8; Coonley v. Al- 
 bany, 133 N. Y. 145; Railroad Co. v. 
 Lawrence, 2 Him, 168; Sinnickson 
 V. Johnson, 2 Harr. 139, 
 
 8 Monongahela Navigation Co. v. 
 United States, 148 U. S. 312; Sands 
 V. Manistee River Imp. Co., 128 U. 
 S. 288; Huse v. Glover, 119 U. S. 
 543; Gloucester Ferry Co. v. Penn- 
 sylvania, 114 U. S. 196-214; Mobile 
 V. KimbaU, 102 U. S. 691; Caronde- 
 let Canal Co. v. Parker, 29 La. Ann. 
 430; Boykin v. Shaffer, 18 La. Ann. 
 139; KeUogg v. Union Co., 12 Conn. 
 7; Thames Bank v. LoveU, 18 Conn. 
 500; McReynolds v. SmaUhouse, 8 
 
114 COITTEOL OF NATIGABLE WATEES. 
 
 The fact that a vessel has procured a coasting license 
 under the Federal laws gives no exemption from such regu- 
 lation. " A license to prosecute the coasting trade is a war- 
 rant to traverse the waters washing or bounding the coasts 
 of the United States. Such a license conveys no privileges 
 to use free of tolls, or of any condition whatsoever, the ca- 
 nals constructed by a State, or the water-courses partaking 
 of the character of canals exclusively within the interior of 
 a State, and made practicable for navigation by the funds of 
 the State, or by privileges she may have conferred for the 
 accomplishment of the same end."* 
 
 Obstructions in Navigable Waters. — It has been urged 
 that the fact that navigable waters of the United States are 
 common highways of the nation deprives the States of the 
 right to authorize any material obstruction in them. The 
 existence of a highway imports the right of free passage, 
 and whatever interferes with the exercise of this right, it 
 was said, is a nuisance. In the Wheeling Bridge case ^ the 
 court, notwithstanding the declaration of the legislature of 
 Virginia that the bridge did not constitute a material impedi- 
 ment to navigation, referred the determination of this ques- 
 tion to a master. The conclusion was therefore drawn that 
 where an erection in navigable waters was made in aid of 
 commerce, the question determining its legality was one of 
 fact, whether the impediment proposed was a material ob- 
 struction to important navigation. If it were material, it 
 could not be authorized by a State, even in streams whoUy 
 
 Bush, 447; Palmer v. Cuyahoga Co., Board of Commissioners v. WiUar 
 
 3 McLean, 236; Morris v. State, 63 mette Trans. Co.,6 Oreg. 319. Conf. 
 
 Tex. 738; Benjamin v. Manistee, Harmon v. Chicago, 147 U. S. 396. 
 etc. Co., 43 Mich. 638; Nelson v. iVeazie v. Moor, 14 How. 568; 
 
 Cheboygan Navigation Co., 44 Packet Co. v. Keokuk, 95 U. S. 80; 
 
 Mich. 7; Commissioners v. Green, Keokuk t. Packet Co., 45 Iowa, 196. 
 79 Ky. 73; Wisconsin River Imp. 213 How. 631. See Cass County 
 
 Co. V. Manson, 48 Wis. 355; Harmon v. Chicago, etc. E. Co., 35 Neb. 348, 
 
 V. City of Chicago, 140 lU. 374; 354 
 
OONTEOL OF NAVIGABLE WATEES. 115 
 
 within its limits; but if the obstruction were not serious, or 
 if the navigation impeded were not important, the decision of 
 the State, in the absence of Federal legislation, was control- 
 ling.^ It appears to have been generally considered, even at 
 this time, as indispensable to the States that they should be 
 able to make such improvements as local necessities required, 
 and in so doing to obstruct waters theretofore navigable. In 
 the first case which presented this question to the Supreme 
 Court, it was held that the State of Delaware might author- 
 ize the erection of a dam completely closing a small stream 
 to navigation,^ and many other cases are to be found ia 
 which the States have been sustained in. authorizing ob- 
 structions to navigable waters.' 
 
 The rights of commerce by vessels are not paramount to 
 rights of commerce conducted by any other method, or to 
 other rights which are protected by law. Some concession 
 must be made on every side for convenient pursuit of dififer- 
 ent occupations, and in this matter regulations can often best 
 be made by the local authority rather than by a government 
 at a distance.* 
 
 iSillimanv. Hudson Eiver Bridge sCardwell v. American Bridge 
 
 Co., 4 Blatch. 395; Coleman v. Co., 113 U. S. 205; Pound v. Turok, 
 
 Bridge Co., id. 395; Mississippi, etc. 9517. S.459; Gilman v. Philadelphia, 
 
 E. R. Co. V. Ward, S Black, 486, 494 3 WaU. 713; United States v. Bel- 
 
 495 ; Scott v. City of Chicago, 1 Biss. lingham Bay Boom Co., 73 Fed. Eep. 
 
 510; Columbus Ins. Co. v. Peoria 585; Keator Lumber Co. v. St. Croix 
 
 Bridge Ass'n, 6 McLean, 70; Jolly Boom Co., 73 Wis. 63; Woodman v. 
 
 V. Terre Haute Bridge Co., 6 Mc- Kilbourn Mfg. Co., 1 Abb. (U. S.) 
 
 Lean, 237; Delaware & Hudson C. 158; Egan v. Hart, 45 La. Ann. 1858; 
 
 Co. V. Lawrence, 3 Hun, 163; Chi- Morgan v. King, 18 Barb. 377; Peo- 
 
 cago V. McGinn, 51 IlL 366; WiU- pie v. City of St. Louis, 10 111. 351; 
 
 iams V. Beardsley, 2 Ind. 591; State Neaderhouser v. State, 38 Ind. 357; 
 
 V. Leighton, 83 Me. 419; Baltimore Butler v. State, 6 Ind. 165; Depew 
 
 V. Stroll, 52 Md. 435; Commission- v. Canal Trustees, 5 Ind. 8; Eutz v. 
 
 ers V. Board of Public Works, 39 City of St. Louis, 10 Fed. Eep. 338. 
 
 Ohio St. 628. See Hazard v. Hudson < Hamilton v. V. S. & P. E. Co., 
 
 EiTer Bridge Co., 27 How. Pr. 300; 119 U. S. 280; Cardwell v. Ameri- 
 
 Albany Bridge Case, 3 WalL 403. can Bridge Co., 113 U. S. 305 ; MOler 
 
 sWillson Y. Blackbird Creek v. Mayor of New York, 109 U. S. 
 
 Marsh Co., 3 Pet. 345. 885; Escanaba Co. v. Chicago, 107 
 
116 CONTEOL OF NAVIGABLE WATEES. 
 
 The Purpose of the Obstruction. — In most cases tlie ob- 
 structions placed in navigable waters under State author- 
 ity have been bridges or wharves, which, like the streams 
 themselves, are means of commercial intercourse, and in the 
 language of the courts some suggestion may be found that 
 States cannot authorize obstructions in public waters not in- 
 tended to facilitate commerce.' This has tiot been adopted 
 by the Supreme Court as a test of the legality of State 
 action. 
 
 In WUlson v. Blacklird Creek Ma/rsh Co.^ the dam was 
 erected to drain a marsh for the purpose of improving the 
 healthfulness of the region. 
 
 In some parts of the country where a stream is of small 
 value for navigation, and of great public importance as a 
 source of water-power, a State may devote it to the latter 
 use,' while in other places a State may destroy the naviga- 
 bility of a stream, that its waters may be used for irriga- 
 tion. The arid portion of the country, in which the rainfall 
 is not sufficient for the production of crops, covers about 
 four-tenths of the entire area of the United States. " Here 
 the paramount interest is not the navigation of the streams 
 but the cultivation of the soil by means of irrigation. Even 
 if, by the expenditure of vast sums of money in straighten- 
 ing and deepening the channels, the uncertain and irregular 
 streams of this arid region could be rendered to a limited 
 extent navigable, no important public purpose would be 
 subserved by it. Ample facilities for transportation, ade- 
 
 U. S. 678; Pound v. Turck, 95 U. S. v. Breed, 4 Pick. 460; People v. 
 
 459; United States V. New Bedford Eensselaer, etc. R. E., 15 Wend. 
 
 Bridge, 1 Woodb. & M. 401; Hatch 113. 
 
 V. Wallamet Iron Bridge Co., 7 iConf. Cooley, Const. Lim. (6th 
 
 Sawy. 137; Oilman v. Philadelphia, ed.), p. 730; Sullivan v. Moreno, 19 
 
 3 WalL 713; Palmer v. Cuyahoga Fla. 300. 
 
 Co., 3 McLean, 336; Columbus Ins. 23 Pet. 345. 
 
 Co. V. Peoria Bridge Ass'n, 6 Mc- 'See St. Anthony Falls Water 
 
 Lean, 70; Williams v. Beardsley Power Co. v. Board, etc. of St. Paul, 
 
 et al., 3 Ind. 159; Commissioners v. 168 U. S. 349; State v. City of Eau 
 
 Pidge, 5 Ind. 13; Commonwealth Claire, 40 Wis. 533. 
 
CONTEOL OF NAVIGABLE WATEKS. 
 
 Ill 
 
 quate to all the requirements of commerce, are furnislied by 
 the railroads, with -which these comparatively insignificant 
 streams could not compete. But, on the other hand, the use 
 of the waters of all these streams for irrigation is a matter 
 of the highest necessity to the people iohabitiug this region, 
 and, if such use were denied them, it would injuriously af- 
 fect their business and prosperity to an extent that would 
 be an immeasurable public calamity." ' 
 
 The rule which defines the power of the States over nav- 
 igable waters does not limit that power to a comparison of 
 the requirements of commerce by land and by water to de- 
 cide which shall be preferred, and what concessions the one 
 shall make to the other. In this, as in other similar matters, 
 the public need is the controlling consideration, and in the 
 absence of Federal legislation the States may devote their 
 waters to such purposes as they deem best. 
 
 The Present Mule. — It is apparent from the foregoing con- 
 siderations that the question, whether or not an obstruction 
 should be permitted in navigable waters wholly within a 
 State, is essentially legislative, and this, it is now held, in 
 the absence of Federal legislation, is controlled entirely by 
 the States. 
 
 There is no common law of the United States prohibiting 
 such obstructions, and, without a Federal statute, obstruc- 
 tions and nuisances in navigable streams within the States 
 are not within the scope of Federal laws as administered by 
 courts of law and equity. These are offenses against the 
 laws of the States in which the navigable waters lie, but 
 they are not offenses against United States laws which do 
 not exist, and none exist except such as are to be found 
 on the statute book.^ The States may therefore authorize 
 
 1 United States v. Eio Grande Dept., 168; U.S. Rev. Stat., sec. 2339; 
 
 Dam, etc. Co. (N. M.), 51 Pacj. Rep. Basey v. Gallagher, 30 WaU. 670. 
 
 674; 1 Supp. U.S. Rev. Stat., pp. 137, 2 Willamette Iron Bridge Co. v. 
 
 698, 791, 793, 940, 946; 18 Dec, Int. Hatch, 135 U. S. 1. 
 
118 
 
 CONTEOL OF NAVIGABLE WATEES. 
 
 bridges or other obstructions in their navigable waters,* but 
 in all cases the jurisdiction of the State is subject to the 
 controlling authority of Congress to regulate the character 
 and method of their use, or even to require the removal of 
 erections so authorized.* 
 
 Obstructions in Interstate Streams. — The dividing line be- 
 tween State and Federal powers over streams which form 
 the boundary between States, or which in their course flow 
 through two or more States, is not well defined ;' but the courts 
 appear to make a difiference between such streams and those 
 which are wholly within a State,* and have not infrequently 
 
 1 Lake Shore, etc. R. Co. v. Ohio, 
 165 TJ. S. 865 ; Covington, etc. Bridge 
 Co. V. Kentucky, 154 U. S. 204, 334; 
 The Passaic Bridges, 3 "WalL 783; 
 Illinois River Packet Co. v. Peoria 
 Bridge Ass'n, 38 ILL 467; HamiLton 
 v. Vioksburg, etc. Ry. Co., 34 La. 
 Ann. 970; Baltimore v. StroU, 53 
 Md. 435; "WiLLiams v. Beardsley, 2 
 Ind. 591 ; Commonwealth v. Taim- 
 ton, 7 Allen, 309; Bailey v. P. W. & 
 B. Ry. Co., 4 Harr. (DeL) 389; Lister 
 V. Newark Plank Road Co., 9 Stew. 
 477; People v. Rensselaer & S. R. 
 Co., 15 Wend. 114; Commonwealth 
 V. New Bedford Bridge Co., 3 Gray, 
 339; Peters v. New Orleans M. & C. 
 R. Co., 56 Ala. 538; Towns of Groton 
 and Ledyard v. Hurlbut, 33 Conn- 
 177; Green, etc. Navigation Co. v. 
 Ches., O. & S. W. R. Co., 88 Ky. 1; 
 County Commissioners of Talbot 
 County V. Queen Anne's County, 50 
 Md. 345; Board of Commissioners 
 V. Pidge, 5 Ind. 13. 
 
 ''Willamette Iron Bridge Co. v. 
 Hatch, 135 U. S. 1; CardweU v. 
 American Bridge Co., 113 U. S. 305; 
 Escanaba Co. v. Chicago, 107 TJ. S. 
 678, 687; Oregon Transportation Co. 
 
 V. Columbia Street Bridge Co., 53 
 Fed. Rep. 549; Rhea v. Newport N. 
 & M. V. R. Co., 50 Fed. Rep. 16; 
 CardweU v. American Bridge Co., 
 19 Fed. Rep. 563; Wallamet Iron 
 Bridge Co. v. Hatch, 19 Fed. Rep. 
 347; MUnor v. N. J. R. Co., 16 Lawy. 
 Co-op. U. S. Rep. 799; JoUy v. Terre 
 Haute Bridge Co., 6 McLean, 337; 
 Works V. Junction Ry. Co., 5 Mc- 
 Lean, 435; Palmer v. Cuyahoga 
 County, 3 McLean, 336; Hatch v. 
 Willamette Iron Bridge Ca, 7 Sawy. 
 137, 141; State v. Leighton, 83 Me. 
 419; State v. Dibble, 4 Jones, L. (N. 
 C.) 107; United States v. New Bed- 
 ford Bridge, 1 Wood. & Miuot, 401; 
 SiUiman v. Hudson River Bridge 
 Co., 4 Blatch. 74^ 395. 
 
 8 Albany Bridge Case, 3 WalL 403. 
 
 4 Willamette Bridge Co. v. Hatch, 
 135 U. S. 1; BaUey V. Philadelphia 
 R. Co., 4 Harr. (DeL) 389, 395; South 
 Carolina v. Georgia, 93 U. S. 4 13. 
 See United States v. New Bedford 
 Bridge, 1 Wood. & Minot, 407; Craig 
 v. KUne, 65 Pa. St. 399, 410. Contra: 
 Dover v. Portsmouth Bridge, 17 
 N. H. 200; Ormerod v. New York, 
 W. S. & B. R. R. Co., 31 Blatch. 106. 
 
CONTEOL OF NAVIGABLE WATEES. 119 
 
 empliasized this distinction in sustaining State legislation 
 over their domestic -waters.' 
 
 It may have been for want of a Federal common law, 
 among other reasons, that in the celebrated Wheeling Bridge 
 case ^ the Supreme Court, while holding that a State through 
 whose territory the Ohio river flowed could authorize no 
 substantial obstruction to its navigation, based its judgment 
 upoE. Federal legislation rather than upon the effect of the 
 constitutional provision. Even in the absence of such legis- 
 lation, however, it seems that there is a material difference 
 between State powers over the two classes of streams. In 
 the case of a river flowing through several States, an obstruc- 
 tion in its lower course, for example, might offer the lower 
 State a very effective means of commercial discrimination ; 
 while no such danger would exist in streams which were 
 situate entirely within the limits of a single State. The 
 commerce clause, construed by its purpose to keep commerce 
 among the States free from local impediment, may there- 
 fore wfeU forbid obstruction of the great highways which ex- 
 tend from one State to another, leaving domestic highways 
 to the care of the States. A bridge across the Mississippi in 
 Louisiana which would compel transshipment of freight at 
 that point should be as much within the prohibition of the 
 commerce clause as the Iowa statute which attempted to 
 compel the Union Pacific Eailway to transship freight at 
 Council Bluffs.' It is probable, therefore, that serious ob- 
 structions in important interstate highways may not be au- 
 thorized by a State.* 
 
 1 'Willamette Bridge Co. v. Hatch, 251; United States v. New Bedford 
 
 135 U. S. 1; CardweU v. American Bridge Co., 1 Wood. & M. 407; The 
 
 Bridge Co., 113 U. S. 305; Escanaba Passaic Bridges, 3 Wall 783; Flan- 
 
 & S. M. Transportation Co. v. Chi- agan v. City of Philadelphia, 43 Pa. 
 
 cago, 10717. S. 678; Hall v. De Cuir, St. 319. Conf. Devoe v. Penrose 
 
 95 U. S. 485, 488; Pound v. Turck, Ferry Bridge Co., 7 Fed. Cas. 566. 
 
 95 U.S. 459 ; GUmanv. Philadelphia, ^ Pennsylvania v. Wheeling 
 
 3 Wall 713; Stockton v. Powell, 39 Bridge Co., 13 How. 518. 
 
 Fla. 1 ; Bailey v. Philadelphia R. Co., ^ Council Bluffs v. Kansas City 
 
 4 Harr. (DeL) 389, 895; Chicago v. Ry. Co., 45 Iowa, 348. 
 McGinn, 51 lU. 366; WiUson v. < In re Debs, 158 U, S. 564. 
 Blackbird Creek Marsh Co., 3 Pet. 
 
120 CONTEOL OF NAVIGABLE WATEE3. 
 
 In view of the large amount of Federal legislation con- 
 cerning navigable waters, tlie question what rule would pre- 
 vail in the absence of such legislation is probably not now 
 of practical importance. 
 
 Establishment of Port of Entry. — In the Wheeling Bridge 
 case ^ the court noticed the fact that Congress had established 
 a port of entry above the proposed obstruction. Such legis- 
 lation is not sufficient, however, to indicate the congressional 
 will that navigation upon a stream should be unimpeded. 
 "When Congress establishes a port of entry, it does so with- 
 out reference to the considerations which call for exercise of 
 the State police powers, and, on the other hand, legislation 
 in regard to internal police is made without special refer- 
 ence to the considerations which determine the location of 
 ports of entry. A city would stiU be a port of entry al- 
 though inaccessible by water. AH raUroads, canals, harbors 
 and bridges necessarily affect commerce, but the establish- 
 ment of a port of entry does not give to Congress control 
 over aU means of access to it.* 
 
 The Ordinance of 1787. — The ordinance adopted in 1787 
 for the government of the Northwest Territory contained 
 the well known provision that: 
 
 " The navigable waters leading into the Mississippi and 
 Saint Lawrence, and the carrying places between the same, 
 shall be common highways, and forever free as well to the in- 
 habitants of the said territory as to the citizens of the United 
 States, and those of any other States that may be admitted 
 into the Confederacy, without any tax, impost, or duty there- 
 for." 
 
 This Ordinance does not declare the Mississippi river it- 
 self a common highway, but, assuming the common right to 
 free navigation of that river as already existing, places all 
 its tributaries upon the same footing.' 
 
 The framers of the Ordinance evidently considered that 
 
 » 13 How. 518, 18 How. 421. "Willamette Bridge Co. v. Hatch, 125 
 
 « The Passaic Bridges, 3 Wall. 783 ; U. S. 1. 
 
 3 People V. St. Louis, 10 IIL 351. 
 
CONTBOL OF NAVIGABLE WATEKS. 121 
 
 its provisions would always be of binding obligation, and the 
 Congress of the United States apparently shared in this view. 
 On the Yth of August, 1T89, it passed an act recognizing the 
 ordinance.^ 
 
 In 1790 ^ the Ordinance was applied, except the sixth article,^ 
 as the rule for the government of the territory south of the 
 river Ohio, and in 1Y98 ' it was applied to the Mississippi 
 Territory. Some of its provisions were incorporated in acts 
 erecting State governments in the Northwest Territory.* 
 Similar provisions were inserted in acts admitting other 
 States into the Union.* The courts appear to have accepted 
 the validity of this legislation without question.* 
 
 In PoUa/rd v. Hagom^ decided in 1844:, the effect of the 
 provision m the act admitting the State of Alabama was 
 considered by the Supreme Court, and it was held that, when 
 that State was admitted into the Union, it succeeded to all 
 the rights of sovereignty, jurisdiction and eminent domain 
 which Georgia possessed at the date of its cession to the 
 United States of lands southwest of the Ohio river, except 
 so far as this right was diminished by the temporary posses- 
 sion and control of the public lands by the Federal govern- 
 ment. The declaration making the navigable waters within 
 the limit of the State common highways was, therefore, in- 
 effectual as a limitation upon the powers of the State.' 
 
 11 17. S. Stat. L. 50. of March 2, 1819, 3 Stat. L. 489,^ 
 
 21Stat. L. 123. sees. 5, 6; Resolution of Dec. 14,. 
 
 »1 Stat. L. 549. 1819; Id., p. 608. Missouri: Act of 
 
 * Indiana: 2 Stat. L. 58; Act of March 6, 1820, 3 Stat. L. 545, sec. 2. 
 
 April 19, 1816, 3 Stat. L. 289, sec. 4; 6'WiUiamsv.Beardsley,2Ind. 591; 
 
 Resolution of Dec. 11, 1817, 3 Stat. L. Mississippi River Bridge Co. v. Lon- 
 
 399. Illinois: 3 Stat. L. 514; Act of ergan, 91 HL 508, 515; Phoebe v. 
 
 April 18, 1818, 3 Stai L. 428, sec. 4; Jay, Breese, 207. See Illinois River 
 
 Resolution of Deo. 3, 1818, 3 Stat. L. Packet Co. v. Peoria Bridge Ass'n, 
 
 536. Michigan: 3 Stat. L. 309. 38 HL 467; Chicago v. McGinn, 51 
 
 5 Mississippi: Act of March 1, IlL 266, 271; Jolly v. Terre Haute- 
 
 1817, 3 Stat. L. 348, sec. 4; Resolu- Bridge Co., 6 McLean, 237. 
 
 tion of Dec. 10, 1817, 3 Stat. L. 472. ' 3 How. 212. 
 
 Louisiana: sec. 3, Act of Feb. 20, swiUamette Iron Bridge Co. v. 
 
 1811, 2 Stat. L. 641 ; Act of April 8, Hatch, 135 U. S. 1 ; Van Brocidin v. 
 
 1812, 2 Stat. L. 701. Alabama: Act Tennessee, 117 U. S. 151, 159; Dred 
 
122 CONTEOL OF KAVIGABLE WATEES. 
 
 It was, however, the court said, a valid regulation of com- 
 merce "wMch Congress, in the exercise of its commercial 
 powers, might impose upon the original States in respect 
 to their navigable waters ; and, following this decision, the 
 clause which had been already inserted in so many organic 
 acts of admission was re-enacted in the case of lowa,^ Wis- 
 consin," California,' Oregon,* and Minnesota.' 
 
 In a number of cases the validity of this legislation was 
 presented to the courts, and was for some time uniformly 
 sustained;' and this rule was followed as recently as the 
 case of Wallamet Iron Bridge Co. v. Hatch^ decided in 1884 
 It was recognized that Congress cannot admit a State into 
 the Union upon any other than an equal footing with the 
 ■other States, and therefore cannot, as a condition of ad- 
 mission, make any valid compact or enactment denying to 
 a State within its limits the powers common to the other 
 States. A stipulation between a State and the United States, 
 or an express enactment of Congress, that a State is admitted 
 into the Union on an equal footing with the original States, 
 adds nothing as to its rights and authorities, for the impli- 
 cations from the fundamental principles of the Constitution 
 require that the rights and powers of the several States 
 should be the same.' 
 
 Scott V. Sanf ord, 19 How. 393, 490 ; i Act of March 3, 1845, 5 U. S. Stat. 
 
 7 Op. Atty. Gen. 571; Strader v. L. 743, sec. 3. 
 
 Oraham, 10 How. 83; Withers v, 2 Act of April 6, 1846, 9 Stat. L. 
 
 Buckley, 30 How. 84, 93; Permoli v. 66, sec. 3. 
 
 First Municipality, 3 How. 589, 610 ; 3 Act of Sept. 9, 1850, 9 Stat. L. 453. 
 
 Menard v. Aspasia, 5 Pet. 505 ; "Wood- « Act of Feb. 1^1859, 11 Stat. L. 
 
 man v. Kilbourn Mfg. Co., 1 Abb. 383. 
 
 (U. S.) 158, 163; Duluth Lumber Co. 5 Act of Feb. 26, 1857, 11 Stat L, 
 
 V. St. Louis Boom & Imp. Co., 17 166, sec. 3. 
 
 Fed. Eep. 419. See also the follow- 6 Columbus Insurance Co. v. Cur- 
 ing cases in which other provis- tenius, 6 McLean, 309; Columbus 
 Ions of this ordinance have been Insurance Co. v. Peoria Bridge Co., 
 held to be superseded: Conn. Mut. 6 McLean, 70. Conf. Spooner v. Mc- 
 Life Ins. Co. v. Cross, 18 Wis. 109; Connell, 1 McLean, 337; Neader- 
 People V. Thompson, 155 IlL 451. houser v. State, 38 Ind. 357. 
 Conf. Mil. Gaslight Co. v. Game- ' 19 Fed. Eep. 347. 
 <30ck, 33 Wis. 144. 8 gt. Anthony Falls, etc. Co. v. St. 
 
CONTROL OF NAVIGABLE WATEES. 123 
 
 It is said, however, that though the clause in the organic 
 act admitting a State into the Union, by which its navigable 
 waters were made free and common highways, could not be 
 upheld as a compact between the State and the United States, 
 it was, nevertheless, a valid regulation of commerce by Con- 
 gress. Admission of the State and enactment of the reg- 
 ulation were simply coincident in time. The State was 
 admitted unconditionally, and the regulation enacted abso- 
 lutely, as it might have been enacted on the day before or 
 the day after the admission. But even if it had been made 
 a condition of admission, it would nevertheless be valid as an 
 act of Congress, because that body had the power to make 
 the regulation without State consent.* 
 
 Upon this proposition no explicit decision has been given 
 by the Supreme Court, but it is settled that the construction 
 of the clause referred to requires only that the highway shaU 
 be open to all without preference to any, and unobstructed 
 by duties and tolls not collected for the use of improvements.^ 
 
 The question is stiU open whether the free navigation 
 clause in the Ordinance of 1T8Y, and the similar provision in 
 the acts admitting different States into the Union, are in 
 effect as regulations of commerce. As concerns the Ordi- 
 nance, there seems to be no doubt that, if it is stUl effective, 
 
 Paul, 168 U. S. 349; Illinois Central See Soheuier v. Columbia Street 
 
 R. E. Co. V. Illinois, 146 U. S. 387, Bridge Co., 37 Fed. Eep. 173. 
 
 434; Willamette Iron Bridge Co. v. iWoodrufl v. Bloomfield, etc. Co., 
 
 Hatcli, 135 U. S. 1; Sands v. Manis- 8 Sawy. 638, 9 id. 441; Cox v. State, 
 
 tee River Improvement Co., 133 3 Blaokf. 193, 300; Depew v. Canal 
 
 U. S. 388; Hamilton v. Vicksburg, Trustees, 5 Ind. 8; Neaderbouser v. 
 
 S. & P. E. Co., 119 U. S. 380, affirm- State, 38 Ind. 357; Peters v. New 
 
 ing34La. Ann. 973; Husev. Glover, Orleans R. Co., 56 Ala. 538, 535. 
 
 119 U. S. 543, 15 Fed. Rep. 393; Card- Conf. New Orleans v. Wilmot, 31 
 
 wall V. American Bridge Co., 113 La. Ann. 65. 
 
 U. S. 305; Woodman v. KUboum 'Willamette Iron Bridge Co. v. 
 
 Mfg. Co., 1 Abb. (U.S.) 158; Pollard's Hatch, 135 U. S. 1; Hamilton v. 
 
 Lessee v. Hagan, 3 How. 313; Du- Vicksburg, etc. E. E. Co., 119 U. S. 
 
 luth Lumber Co. v. St. Louis Boom 380, 84 La. Ann. 970; Husev. Glover, 
 
 & Improvement Co., 5 McCrary, 883. 119 U. S. 548 ; Cardwell v. American 
 
 Bridge Co., 113 U. S. 205. 
 
124 CONTEOL OF NAVIGABLE WATEES. 
 
 its force is due solely to Federal legislation. Whatever the 
 jurisdiction of the Congress of the Confederation over public 
 lands might have been, it possessed no power to regulate 
 commerce among the States ; and unless it could make its 
 provision for free navigation run with the land, so as to be 
 effective as a limitation upon the powers of States to be 
 thereafter formed in territory governed by the Ordinance, 
 it would be ineffective within the limits of those States. It is 
 now settled that the Ordinance does not limit State powers, 
 and its commercial regulations therefore have no longer in- 
 trinsic force. 
 
 Under the Constitution conditions are reversed. Exclusive 
 power to regulate commerce among the States belongs to 
 Congress, and provisions for free navigation of public waters 
 of the United States, if adopted by Congress as commercial 
 regulations, are undoubtedly valid. The question will there- 
 fore be determined by reference to Federal legislation, and 
 may be different in different States. 
 
 Perhaps with the construction now given to this clause 
 the question is unimportant, for the acts which fall within 
 its prohibition are probably within other prohibitions of the 
 Constitution. " These provisions may now, perhaps, be re- 
 garded as declaratory of the modern rule, that all rivers 
 which are capable of navigation in their natural condition 
 are subject to public use for that purpose, whether in other 
 respects they are held to be private property or not." ' 
 
 Before the decision in Hatch v. Willamette Iron Bridge 
 Go., a large number of decisions were rendered, defining 
 freedom of navigation as secured by the clause referred to, 
 or by similar clauses in organic acts admitting States into 
 the Union. 
 
 The question what constituted a navigable stream was said 
 to be one of fact.* Streams which were not navigable at the 
 time the Ordinance was adopted might be made so by arti- 
 ficial means, and streams which were navigable at that time 
 
 1 Gould on Waters (3d ed.), sec. 68. 379 ; Moore v. Sanborn, 3 Mich. 519; 
 2 Burroughs V. Whitwam, 59 Mich. Egan v. Hart, 45 La. Anti. 1358. 
 
OONTEOL OF NAVIGABLE WATEBS. 125 
 
 miglit, in the natural course of events, cease to be so; and 
 where this was the case, the court would recognize the fact 
 and would not enforce the claim of a single individual seek- 
 ing to navigate such a stream.^ 
 
 It was also held that under the Ordinance, as under the 
 Constitution, the States might, in the absence of legislation 
 by Congress, improve the navigation of waters within their 
 limits and charge tolls for the use of such improvements.^ 
 In making improvements the States might consider the 
 character of navigation which was most important, and im- 
 provements might be made with reference to that method 
 of use. Thus, where a stream was of greatest importance ia 
 floating logs, the States might authorize the construction of 
 booms, although they constituted an obstruction to naviga- 
 tion by boats.' 
 
 The Ordinance and the free-navigation clauses in statutes 
 admitting States into the Union did not deprive the States 
 of the power to authorize erection of bridges over navigable 
 waters, provided that in so doing the waterway was not 
 unnecessariLy obstructed.* 
 
 1 State V. Carpenter, 68 Wis. 165; Keator Lumber Co. v. St. Croix 
 Ingraham v. Chicago, D. & M. R. R. Boom Co., 72 Wis. 63. 
 
 Co., 34 Iowa, 349; Pacific Gas Im- * Escanaba Transportation Co. v. 
 
 provement Co. v. EUert, 64 Fed. Chicago, 107 U. S. 678; JoUy v. 
 
 Eep. 431. Conf. Ligare v. Chicago, Terre Haute Bridge Co., 6 McLean, 
 
 etc. Ey. Co., 166 HI 349. 337; Palmer v. Commissioners of 
 
 2 Sands v. Manistee River Im- Cuyahoga County, 3 McLean, 226; 
 provement Co., 123 U. S. 288; Huse Hatch v. Willamette Iron Bridge 
 V. Glover, 119 U. S. 543, 15 Fed. Co., 7 Sawy. 127; People ex reL v. 
 Rep. 292; Manistee Improvement Potrero Bay View R. Co., 67 CaL 
 Co. V. Sands, 53 Mich. 593; Nelson 166; City of Chicago v. McGinn, 51 
 V. Cheboygan Slack Water Naviga- IlL 266; Illinois River Packet Co. 
 tion Co., 44 Mich. 7; Benjamin v. v. Peoria Bridge Ass'n, 38 ILL 467; 
 Manistee Improvement Co., 43 Mich. Board of Commissioners v. Pidge, 
 638; La Plaisance Bay Harbor Co. 5 Ind. 13; Williams v. Beardsley, 3 
 V. City of Monroe, Walker's Ch. Ind. 591; Commissioners v. Board 
 (Mich.) 155; Wisconsin River Im- of Public Works, 39 Ohio St. 638; 
 provement Co. v. Manson, 43 Wis. Hutchinson v. Thompson, 9 Ohio, 
 255. 52; Sweeney v. Chicago, M. & St, 
 
 8 Pound v. Turck, 95 U. S. 459; P. Ry. Co., 60 Wis. 60. 
 
126 
 
 OONTEOL OF KAVIGABLE WATEES. 
 
 Federal Legislation Concerning Navigable Waters. — The 
 
 navigable waters of the United States have been the subject 
 of a large number of statutes.^ Of these the most important, 
 by reason of their general effect, are the several statutes pro- 
 hibiting alterations or obstructions in navigable waters.^ 
 
 By these acts it is provided that vrhenever the Secretary 
 of War shall have good reason to believe that any bridge 
 over navigable waterways of the United States is an unrea- 
 sonable obstruction to the free navigation of such waters, or 
 where there is difficulty in passing the opening of such 
 
 1 Beside the nuinerous appropria- 
 tions for rivers and harbors, see Act 
 of May 18, 1796, Eev. Stats., sec. 
 2476, declaring all navigable rivers 
 within territory occupied by public 
 lands to be and remain public high- 
 ways. 
 
 Act of March 3, 1811, Eev. Stats., 
 sec. 6351, declaring all navigable 
 rivers in former territories of Or- 
 leans and Louisiana to be and re- 
 main public highways. See also 
 Rev. Stats., tit. LXIII, Rivers and 
 Harbors, sees. 5344, 5355, and Act 
 of May 1, 1883, Supp. R. S. 338. 
 
 Act of June 8, 1873, Rev. Stats., 
 sec. 3964, establishing all the wa- 
 ters and canals of the United States 
 as post roads during the time the 
 mail is carried thereon. 
 
 Act creating Mississippi River 
 Commission, June 38, 1879, 31 Stats. 
 L. 37, Supp. R S. 368. 
 
 Act creating Missouri River Com- 
 mission, July 5, 1884 23 Stats. I* 
 144, Supp. R. S. 465. 
 
 Act creating California Debris 
 Commission to protect Sacramento 
 and San Joaquin rivers and their 
 tributaries, March 1, 1883, 37 Stats. 
 L. 507. 
 
 As to harbor of New York, see 
 
 Act of June 39, 1888, 35 Stats. L. 309, 
 Supp. R. S. 594; with addition and 
 amendment August 18, 1894, 28 
 Stats. L. 360. 
 
 Use of canals owned or operated 
 by the United States is regulated 
 by Secretary of War, Act of Au- 
 gust 18, 1894, 38 Stats. L. 363. 
 
 Use of drawbridges over navi- 
 gable waters is regulated by the 
 Secretary of War, Act of August 
 18, 1894, 38 Stats. L. 363. See also 
 act for regulation of commerce 
 and navigation, December 31, 1793, 
 with its amendments. U. S. R. S., 
 tit. XLVin, sec. 4131 et seq. 
 
 Also Act of June 7, 1897, 1st Ses- 
 sion 55th Cong. 96, in regard to 
 navigation of inland waters. 
 
 Anchorage and movement of ves- 
 sels in port of Chicago is governed 
 by Act of February 36, 1893, 37 
 Stats. L. 431, 3 Supp. R. S. 77. 
 
 2 Act of August 14, 1876, 19 Stats. 
 L. 133, Supp. R. S. 118; Act of July 
 5, 1884, 33 Stats. L. 144, Supp. R. S. 
 466 ; Act of August 11, 1888, 35 Stats. 
 L. 400, Supp. R. S. 610; Act of Sep- 
 tember 19, 1890, 36 Stats. L. 436, 
 Supp. R S. 800; Act of July 13 1893, 
 27 Stats. L. 110; Act of August 18, 
 1894, 38 Stats. L. 363. 
 
OONTEOL OF NAVIGABLE WATERS. 127 
 
 bridge by rafts, steamboats or other water-craft, the Sec- 
 retary, after giving the interested parties a hearing, may 
 specify the changes which he requires and limit the time in 
 which they shall be made. Failm-e to comply with such re- 
 quirement is a misdemeanor. 
 
 It is made unlawful to throw any baUast, gravel or other ma- 
 terial into navigable waters of the United States so as to im- 
 pede navigation. This prohibition does not, however, prevent 
 unloading from vessels material to be used in repairing or 
 building piers, wharves, etc. ; nor does it extend to the un- 
 loading of material, excavated in the improvement of navi- 
 gable waters, at such place as the officers supervising the 
 improvements shall approve ; nor does it prevent the deposit 
 of any substance in navigable waters under permit from the 
 Secretary of War in any place designated by him, where 
 navigation will not be obstructed thereby. 
 
 It is forbidden * to build any structure outside established 
 harbor lines, or in navigable waters of the United States 
 where no harbor lines are established, without permission of 
 the Secretary of "War, in such manner as shall obstruct or 
 impair navigation; and it is not lawful to commence con- 
 struction of any bridge, causeway or other works in any nav- 
 igable waters of the United States, imder any act of the 
 legislative assembly of a State, untO. the location and plan 
 of such bridge or other works has been submitted to and ap- 
 proved by the Secretary of War. The statutes also prohibit 
 excavating, filling or in any manner altering or modifying 
 the course, location, condition or capacity of any port, road- 
 stead, harbor or channel of navigable waters of the United 
 States, unless approved and authorized by the Secretary of 
 "War ; provided, however, that this prohibition shaU not apply 
 to any bridge, piers or abutments theretofore authorized by 
 law, nor shall the statutes be construed to authorize the con- 
 struction of any bridge, piers, abutments or other works, under 
 an act of the legislature of any State, over or in any stream 
 or other water not whoUy within the limits of such State. 
 
 1 Sec. 7, Act of 1890, as amended in Act of 1892, 27 Stat. L. 110. 
 
128 CONTEOL OF NAVIGABLE WATERS. 
 
 Wrecks of vessels and other obstructions in navigable 
 waters which, are permitted by the owners thereof to remain, 
 to the injury of commerce and navigation, for a longer period 
 than two months, shall be broken up and removed by the 
 Secretary of War, without liability for damage. 
 
 If o person is permitted to use for any exclusive purpose, or 
 to build upon, alter, deface, injure, obstruct, or in any other 
 manner impair the usefulness of any sea-waU, dike, wharf, 
 or other work built by the United States, in whole or in part, 
 for the preservation and improvement of any of its navigable 
 waters, or to prevent floods, etc. 
 
 The creation of any obstruction not affirmatively author- 
 ized by law to the navigable capacity of any waters in respect 
 to which the United States has jurisdiction is prohibited, and 
 the continuance of such construction, except bridges, piers, 
 wharves, and other similar structures, erected for business 
 purposes, constitutes an offense, and each week's continuance 
 of such obstruction is deemed a separate offense. 
 
 Every person creating or continuing such an unlawful ob- 
 struction is guilty of a misdemeanor, and the obstruction 
 may be prevented or removed by an injunction of the United 
 States court, and proper proceedings to this end may be 
 instituted under direction of the Attorney-General of the 
 United States. 
 
 Where it is manifest to the Secretary of War that the es- 
 tablishment of harbor lines is essential to the preservation of 
 harbors, he is authorized to establish lines beyond which no 
 piers or other works shaU be extended, or deposits made, ex- 
 cept under such regulations as he may prescribe from time 
 to time. 
 
 The act of August 18, 1894,^ contained further provisions 
 against the obstruction of navigable waters. By this act it 
 is made unlawful to deposit or discharge, by any process, 
 ballast, refuse, ashes, mud, acid or any other matter, other 
 than that flowing from streets, sewers, and passing therefrom 
 in a liquid state, in the waters of any harbor or river of the 
 
 1 28 Stat. L., ch, 299, p. 388. 
 
CONTBOL OF NAVIGABLE WATEES. 129 
 
 United States, for the improvement of which money has 
 been appropriated by Congress, elsewhere than within the 
 limits defined and permitted by the Secretary of "War. Every 
 master, pUot, engineer, or person acting in such capacity on 
 any boat or vessel, who may wilfully injure or destroy any 
 work of the TJnited States in navigable waters, or who shall 
 knowingly engage in towing any scow, boat or vessel loaded 
 with prohibited matter, for deposit or discharge in any har- 
 bor, elsewhere than within limits permitted by the Secretary 
 of War, is gmlty of a misdemeanor, and the boat is liable for 
 the pecuniary penalties imposed by the act, and ia addition 
 thereto for the amount of damages which it may have caused. 
 
 The powers which are by this act delegated to the Secre- 
 tary of "War are very large, and there has been a difference 
 of opinion as to the validity of the statute in this respect, 
 some courts supporting the act ^ and other courts holding it 
 to be unconstitutional.^. By. the fourth section of the act of 
 September 19, 1890, the Secretary is directed, whenever he 
 has good reason to believe that a bridge is an unreasonable 
 obstruction to navigation, to give notice to parties owning 
 or controlling the same, and, after the hearing, to direct such 
 alterations as he may think necessary; failure to comply 
 with such direction being made a misdemeanor, and the Sec- 
 retary being authorized to direct the institution of criminal 
 proceedings. The question which is submitted to the Secre- 
 tary is whether or not a bridge or other structure constitutes 
 an unreasonable obstruction to navigation, and his decision 
 is final and conclusive. It has been held that the power 
 which it is thus attempted to delegate to an administrative 
 officer is legislative, and that the statute in this respect is 
 unconstitutional.' 
 
 There is no doubt that Congress can confer upon an execu- 
 
 > Oregon Transportation Co. v. Rep. 406; United States v. Keokuk, 
 
 Columbia St Bridge Co., 53 Fed. etc. Bridge Co., 45 Fed. Rep. 178. 
 
 Rep. 549. ' United States v. Rider, 50 Fed. 
 
 « United States v. Rider, 50 Fed. Rep. 406. 
 
130 CONTROL OF NAVIGABLE WATEES. 
 
 tive officer the authority to determine certain facts upon 
 which the right to construct or maintain an obstruction in 
 navigable "waters may be made to depend. Congress may, 
 for example, direct the Secretary of War to ascertain whether 
 a given structure conforms in fact to the requirements of the 
 act of Congress authorizing its erection, and may authorize 
 him to prescribe changes that may be needed to make it con- 
 form thereto. Congress may authorize a bridge in accord- 
 ance with plans to be adopted by the Secretary of "War ; ^ but 
 it seems that Congress cannot give to the Secretary of War 
 the right to declare that bridges lawfully erected are obstruc- 
 tions to free navigation, and must be remodeled or removed. 
 "Where a bridge has been authorized by Congress, the only 
 authority which could make it an unlawful structure, or di- 
 rect alterations, would be the authority which could repeal 
 or amend the statute. And where a bridge has been author- 
 ized by a State, the only authority which could make it an 
 unlawful structure, or require alterations, would be either the 
 legislature of the State or Congress itself, under the authority 
 to regulate commerce. 
 
 Every bridge creates some obstruction to free navigation, 
 and a literal construction of the statute would therefore 
 compel the Secretary of War to require the alteration or pos- 
 sible removal of nearly every bridge in the country that 
 spans a navigable river. If, to escape this conclusion, it be 
 held that the act requires only the alteration of bridges that 
 cause an unreasonable obstruction to navigation, and that 
 the Secretary of War must determine in each case whether 
 the bridge is or is not an unreasonable obstruction, the con- 
 clusion would follow that the section in question confers 
 upon the Secretary the duty of determining how much of an 
 obstruction the public interests require shall be placed in the 
 way of free navigation — a question which belongs to Con- 
 gress alone. It is generally accepted that Congress cannot 
 confer upon the Secretary of War the power to determine 
 
 1 Miller v. Mayor of New York, 109 U. S. 385. 
 
COISrTKOL OP NATIGABLE "WATEES. 131 
 
 when and where bridges shall be built over the navigable 
 rivers of the country. Such a power is substantially the 
 power to determine what obstructions are unreasonable, and 
 what obstructions are reasonable and demanded by public 
 interests.* 
 
 In Lake Shore <& MioMgom, Bouih&m By. Co. v. Ohio,'' this 
 statute received consideration from the Supreme Court. The 
 question in that case concerned the right of the railroad to 
 maintain a bridge over a small stream wholly within the 
 limits of the State of Ohio, and it was held in. the State 
 courts that the bridge had been erected and was maintained 
 without the consent of the State by abuse of State franchises, 
 and that it was a public nuisance impeding navigation of 
 the river. On behalf of the railway company it was con- 
 tended that the statute in question applied to all waterways 
 of the United States, whether wholly within a State or not; 
 and that its effect was to deprive the States of all authority 
 to control or regulate any structure over navigable streams, 
 although wholly situate within their territory. In passiag 
 upon this question the court said: " On the face of this stat- 
 ute it is obvious that it does not support the claim based 
 upon it. Conceding, without deciding that the words 'water- 
 ways of the United States ' therein used, apply to aU nav- 
 igable waters, even though they be whoUy situated within 
 a State, and passing, also, without deciding, the contention, 
 that Congress can lawfully delegate to the Secretary of "War 
 all its powers to authorize structures of every kind over all 
 navigable waters, nothing in the statute gives rise even to 
 the implication that it was intended to confer such power on 
 the Secretary of War. The mere delegation to the Secre- 
 tary of "War of the right to determine whether a structure 
 authorized by law has been so buUt as to impede commerce, 
 and to direct, when reasonably necessary, its modification 
 so as to remove such impediment, does not confer upon that 
 officer power to give original authority to build bridges, nor 
 
 1 United States y. Keokuk, etc. 2165 U. S. 365. 
 Bridge Co., 45 Fed. Rep. 178. 
 
132 CONTKOL OF NAVIGABLE WATEES. 
 
 does it presuppose tliat Congress conceived that it was lodg 
 ing in the Secretary power to that end. "When the distinc- 
 tion between an authorized structure so erected as to impede 
 commerce, and an unauthorized work of the same character 
 is borne in mind, the fallacy of the contention relied on be- 
 comes apparent. The mere delegation of power to direct a 
 change ia lawful structures so as to cause them not to inter- 
 fere with commerce cannot be construed as conferring on 
 the officer named the right to determine when and where a 
 bridge may be buUt. If the interpretation claimed were fo 
 be given to the act, its necessary effect would be that Con- 
 gress, in creating an additional means to control bridges 
 erected by authority of law, had, by implication, confirmed 
 and made valid every bridge built without sanction of law." 
 
 The question as to the validity of the statute appears in a 
 different light when it concerns the authority of the Secre- 
 tary to carry out improvements directed by Congress. In 
 United States v. City of Molvne^ the question concerned the 
 power of the Secretary to direct an alteration in a bridge 
 which had been erected by authority of Illinois over Eock 
 river, a stream wholly within its limits. It was shown that 
 Congress had assumed jurisdiction over the river to make a 
 navigable waterway from the lUinois river to the Mississippi; 
 that the bridge, being without a draw, was a complete obstruc- 
 tion to navigation; and that the Secretary had directed cer- 
 tain changes so as to make the river practically navigable. 
 This the court held a legal requirement. 
 
 The act of the Secretary in requiring passage was, in effect, 
 an incident only to the execution of the larger purposes of 
 Congress respecting Kock river. In passing upon this sub- 
 ject Judge Grosscup said: 
 
 " If congress can, by special act, constitutionally endow the 
 arm of the secretary of war with power to remove every- 
 thing that lies in or across that river obstructive to the pro- 
 posed waterway, why may it not grant such power, with 
 equal efficacy, by a general act applying to aU cases as they 
 
 i83Fe(iEep. 593. 
 
CONTROL OP NAVIGABLE WATERS. 133 
 
 arise? " . . . "It is true that this involves decision of 
 the department, but the department can in no instance be an 
 effective, and at the same time an insensate and unjudging, 
 executive instrument. In administrative undertakings of 
 this character the directions cannot be so completely fore- 
 drawn by congress that there wiU be left no questions to the 
 administrative mind to decide. The test of the legality of 
 the delegation of power is, not that the administrator must 
 himself decide questions as they arise, but, are the questions 
 thus presented essentially judicial? 
 
 " In this case two questions alone arise : First. Is the bridge 
 an obstruction to navigation? Second. Is it there by any 
 such legal right that the government may not interfere with 
 it in the respect designated, without just compensation? The 
 first question is purely administrative, and is one that con- 
 gress can certainly delegate to the secretary of war. A 
 thousand questions of equal moment to the parties interested, 
 and of equal difficulty, are necessarily delegated to the great 
 departments of the government every month. In the very 
 nature of things, congress cannot dispose of them. A gov- 
 ernment of the size of this, operated upon such a conception, 
 would be clogged immediately. The second question is, un- 
 doubtedly, judicial, and for tidat very reason is not subject, 
 constitutionally, to the decision of congress any more than 
 of the secretary of war." 
 
 The seventh section of the Act of September 19, 1890,* 
 goes considerably beyond the fourth section in the extent of 
 the powers which it confers upon the Secretary of "War. 
 The construction placed upon the fourth section by the 
 Supreme Court appears to be that it gives to the Secretary 
 substantially nothing more than the power of determining 
 the fact whether the obstruction in question is an impedi- 
 ment to navigation. If it be an impediment it is prohibited 
 by the statute. 
 
 iSupp. U. S. Rev. Stats, p. 800, amended by Act of July 13, 1893, 27 
 Stat L. 110. 
 
134 OONTEOL OF NAVIGABLE WATEES. 
 
 The seventh section provides that it shall not be lawful 
 to build any structure in navigable waters of the United 
 States so as to obstruct or impair navigation without the 
 permission of the Secretary of War. If, by this provision, it 
 is intended to give to the Secretary authority to determine 
 whether an obstruction to navigation may be permitted, the 
 act seems to be a delegation of legislative power. 
 
 Other instances of such legislation may be found in the 
 provision of the fourth section of the Interstate Commerce 
 Act giving to the Commission power, from time to time, to 
 prescribe the extent to which designated carriers may be re- 
 lieved from the operation of the long-and-short-haul clause, 
 and in the provision of the act giving the Commission the 
 apparently judicial power of conducting an investigation to 
 determine whether or not accused persons had been guilty 
 of past violation of the law.* So in the act of March 2, 1893,^ 
 requiring equipment of railway cars and locomotives with 
 certain safety appliances, it is provided that the Interstate 
 Commerce Commission may, from time to time, on full hear- 
 ing and for good cause, extend the period within which any 
 common carriers shall be required to comply with the pro- 
 visions of the act. 
 
 An extreme instance of such a statute is found in the act 
 which authorizes the President to restrict and regulate, or to 
 prohibit, the importation and use of fire-arms, ammunition 
 and distnied spirits iato the Territory of Alaska.' 
 
 In Field v. Clark * the Supreme Court considered the pro- 
 vision of the Tariff Act of October 1, 1890, which authorized 
 the President to suspend the provisions of the act relating to 
 the free introduction of sugar, molasses, coffee, tea and hides. 
 In this case the court reviewed a large number of similar 
 
 1 Int. Com. Com. v. Brimson, 154 of Distilled Spirits, 83 Fed. Rep. 
 U. S. 449, 155 U. S. 3. 1000; Endleman v. United States, 
 
 2 37 Stat. L. 531. 86 Fed. Rep. 456. 
 
 s 15 Stat. L. 341, U. S. Rev. Stats. ♦ 143 U. S. 649, 681. 
 1955; United States v. Fifty Cases 
 
CONTEOL OF NAVIGABLE WATEKS. 135 
 
 provisions in earlier statutes, and held, that the settled prac- 
 tice of the government recognized their validity.^ 
 
 Property Rights Belating to Navigable Waters. — The title 
 and rights of riparian owners, in the soil below high-water 
 mark, upon navigable waters depend upon the local laws of 
 the States, except so far as those laws yield to the paramount 
 right of commerce and navigation secured by the Constitu- 
 tion and the statutes of Congress.^ In Shivel/y v. BowWy ' 
 the subject received exhaustive examination from Mr. Justice 
 Gray, and in the recent case of St. Anthony Falls Wat&i' 
 Power Co. v. St. Pcml * was again considered at length by 
 Mr. Justice Peckham. 
 
 In general terms the riparian owner is entitled to access 
 to his property from the stream," and has the right to build 
 piers and wharves from the bank to the line of navigability.* 
 
 In all cases, however, the rights of the riparian owner are 
 subject to the public easement, and if he extend a structure 
 beyond the point of navigability, or impede the highway, 
 over which the right of the public is paramount, he creates 
 a public nuisance, which persons specially injured thereby 
 are entitled to abate or enjoin.'' 
 
 Persons owning land under or bordering upon navigable 
 
 lOn general subject, see post, 133; Mumford v. "Wardell, 6 WalL 
 
 p. 309. 423; AUen v. Forrest, 8 Wash. 700 
 
 2 St. Anthony Falls Water Power Morse v. O'Connell, 7 Wash. 117 
 
 Co. V. St. Patd, 168 U. S. 349; lUi- Eisenbach v. Hatfield, 2 Wash, 336 
 
 nois Central E. E. Co. v. Illinois, 146 People v. EeveU (C. C. Cook Co., 
 
 U. S. 387; United States v. Illinois lU.), 29 Chic. Leg. N. 385. 
 
 Central E. E. Co., 33 Fed. Eep. 730; 3153 U. S. 1; Bowlby v, Shively, 
 
 Weber v. Board of Harbor Commis- 23 Oreg. 410. 
 
 sioners, 18 WaE 57; Mayor, etc. of * 168 U. S. 349. 
 
 Mobile V. Eslava, 9 Port. (Ala.) 577; should on Waters (3d ed.), sec. 
 
 Duval's Heirs v. McLosky, 1 Ala. 149; Sage v. New York, 154 N.Y. 61. 
 
 708; Kemp ex dem. PoUard's Heirs ^Qould on Waters (3d ed.), sec. 
 
 V. Thorp, 3 Ala. 391; People ex reL 149. 
 
 Bumham V.Jones, 49 Hun, 365; s. c, ^Button v. Strong, 1 Black, 133; 
 3 N. Y. Supp. 145 ; s. c., 110 N. Y. 509, Paine Lumber Co. v. United States, 
 113 N. Y. 597; People ex reL Attor- 55 Fed. Eep. 854; Grand Trunk Ey. 
 ney-General v. Kirk, 163 111 188; v. Backus, 46 Fed. Eep. 311; North- 
 Lewis V. City of Portland, 35 Oreg. ern Pacific Ey. Co. v. BamesvUle & 
 
136 OONTEOL OF NAVIGABLE WATEES. 
 
 waters of the United States hold their property subject to 
 the servitude in respect to navigation created by the Consti- 
 tution ; and where, without a taking of property, their land 
 is injured or its use interfered with, in consequence of im- 
 provements to navigation made by the Federal government in 
 the exercise of its dominant authority,' or by the action of a 
 State,^ no right to compensation exists. So, although the 
 construction of bridges and dikes may lessen the value of a 
 ferry franchise, it confers upon the owner no right to com- 
 pensation.' 
 
 The power to regulate commerce, which is granted to 
 Congress by the Constitution, is subject to all limitations im- 
 posed by that instrument, and among these is the requirement 
 that private property shaU not be taken for public use with- 
 out just compensation, and if, in the regulation of commerce, 
 Congress deems it necessary to take private property, it can 
 do so only upon this condition. "The power to regulate 
 commerce is not given in any broader terms than that to 
 establish post-offices and post roads; but, if Congress wishes 
 to take private property upon which to build a post-office, it 
 must either agree upon the price with the owner, or in con- 
 demnation pay just compensation therefor." * 
 
 M. Ey. Co., 3 MoCrary, 244; Works Imp. of Navigable Waters, 17 id. 
 
 V. Junction Ey. Co., 5 McLean, 435; 109; 18 id. 64; Scranton v. Wheeler 
 
 United States v. Eailroad Bridge (Mich.), 71 N. W. Eep. 1091. Conf. 
 
 Do., 6 McLean, 517; Sullivan v. Mo- Dam at Lake Winnibigoshish, 16 
 
 reno, 19 Fla. 200. Op. Atty. Gen. 553. 
 
 1 Gibson v. United States, 166 2 Transportation Co. v. Chicago, 
 
 U. 8. 269; Cooley, Const. Lim. (6th 99 U. S. 635; Zimmerman v. Union 
 
 ed.) 666, 670; Paiae Ltimber Co. v. Central Co., 1 W. & S. 346; Brooks 
 
 United States, 55 Fed. Eep. 854; v. Cedar Brook Imp. Co., 83 Ma 17; 
 
 Scranton v. Wheeler, 57 Fed. Eep. Black Eiver Imp. Co. v. La Crosse, 
 
 808; MUls v. United States, 46 Fed. etc. Co., 54 Wis. 659; Sage v. New 
 
 Eep. 738; Hawkins Point Light- York, 154 N. T. 61. Conf. Thunder 
 
 house Case, 39 Fed. Eep. 77; Coving- Bay, etc. Co. v. Speechly, 31 Mich, 
 
 ton Harbor Co. v. Phoenix Bridge 336. 
 
 Co., 33 W. L. B. (Sup. Ct. Cin.) 34; 3 Mississippi Eiver Bridge Co. v. 
 
 Winifrede Coal Co. v. Central R & Lonergan, 91 III 508. 
 
 B. Co., 34 id. 173; Soil Under Navi- ^Monongahela Navigation Co. v. 
 
 gable Waters, 16 Op. Atty. Gen. 479 ; United States, 148 U. S. 312, 33& 
 
CONTEOL Off NAVIGABLE WATEES. 137 
 
 The Federal statute permitting railroads and telegraph 
 companies to use materials from public land is not an appro- 
 priation for the purpose of interstate or foreign commerce of 
 the land under water upon which a railroad or telegraph may 
 be constructed, so as to prevent a riparian owner, injured by 
 such construction, from recovering damages therefor.^ A 
 pier built in a river by a riparian owner, though not in con- 
 formity with Federal law, cannot be taken by a railroad 
 company without compensation.' The banks of the stream 
 are subject to the control of the State, not of Congress. The 
 rights which the public have are rights of passage, not of 
 using the adjoining land.' The State may not impede the 
 use of the stream as a highway, and the use of the submerged 
 land is always subject to the limitation that there shall be no 
 substantial impairment of the public interest in the waters.* 
 A State may not, therefore, permit the appropriation of sub- 
 merged land in an important channel to private use so as 
 to exclude navigation,^ but may authorize its appropriation 
 when navigation is not seriously injured.® 
 
 Police Jurisdiction Over Navigable Waters. — The police 
 and criminal laws of the State, which operate upon all persons 
 within its limits, extend also over its navigable waters. As 
 persons navigating these waters are entitled to the benefit of 
 State laws, they are also bound to yield obedience to them. 
 The right of passage does not iavolve the right to occupy 
 the highway as a residence ; ' nor to make it, in violation of 
 State laws, a place for public exhibitions; * nor for the sale 
 of liquors.' 
 
 1 Rumsey v. Railroad Co., 17 N. T. * Illinois Central E. R. Co. v. Illi- 
 a 673. nois, 146 U. S. 387. 
 
 2 Railway Ca v. Renwick, 103 scoxe v. State, 144N. Y. 396. 
 
 U. S. 180. 6 Ormerod t. New York, eta Co., 
 
 3 Henry v. Roberts, 50 Fed. Rep. 13 Fed. Rep. 370. 
 
 903; Littlefield V. Maxwell, 31 Me. 7 Robertson v. Commonwealth 
 
 134 ; State v. Wilson, 43 Ma 9 ; Gould (Ky.), 40 S. W. Rep. 930. 
 
 on Waters (2d ed.), sec. 99 et seq.; 8 Board of Selectmen v. Spalding, 
 
 Doucette v. Little Falls, etc. Co. 8 La. Ann. 87. 
 
 (Minn.), 73 N. W. Rep. 847; Bain- spierson v. State, 89 Ark, 219. 
 
 bridge r. Sherlock, 39 Ind, 364. 
 
CHAPTEK Y. 
 
 PILOTAGE, PORT REGULATIONS, QUARANTINE, INSPECTION 
 LAWS AND OTHER LOCAL MATTERS. 
 
 Many local regulations which are within the powers of 
 the States appear to be essentially commercial in their char- 
 acter and purpose. Such, for instance, are regulations of 
 pilotage, which bear no important relation to the police pow- 
 ers of the States, but are necessary that there may be easy 
 entrance to and exit from a harbor. Under existing theo- 
 ries of constitutional construction, however, the power to 
 make such regulations is not regarded as commercial in ori- 
 gin. When it is said that in local matters the States may 
 act until superseded by Congress, it is intended to say that 
 the States, in the exercise of other powers, are not prohibited 
 from, the use of all means which might be employed by Con- 
 gress in effectuation of its general commercial power. On 
 the other hand, no power belonging to the State can control 
 the inhibitions of the Federal Constitution or the powers of 
 the United States government created thereby.* Whatever 
 may be the extent and nature of the powers of the States 
 when not otherwise restricted, it has been said that no defi- 
 nition, and no urgency for their use, can enable a State to 
 act upon matters which have been exclusively confided by 
 the Constitution to the discretion of Congress.^ 
 
 From the necessities of the case, however, certain limita- 
 tions must be placed upon this broad statement, and the 
 validity of State legislation must ultimately become a ques- 
 tion of the extent of the necessity in which its laws have 
 their origin. 
 
 iWaying V. Michigan, 116 U. S. 2 Henderson v. The Mayor, 93 U.S. 
 446, 460; 1 DilL Mun. Corp. (4th ed.), 259, 271 ; Railroad Co. v. Husen, 95 
 sec. 143. U. S. 465. 
 
PILOTAGE, POET EEGULATIONS, ETO. 139 
 
 The police and tlie taxing powers are for self-defense 
 and self-maintenance; the urgency which may caU for their 
 exercise wiU, therefore, in supposable cases, justify marked 
 exertions of State authority. This rule has its analogy 
 throughout the law of agency,^ and is expressed by the maxim 
 that the safety of the people is the highest law. No au- 
 thority can prevent the doing of that which must be done. 
 It should be recognized, however, that in every case of this 
 character the necessity for the exercise of the State author- 
 ity is a jurisdictional fact which must exist before any in- 
 vasion of the Federal commercial power can be justified. 
 
 Under ordinary circumstances the validity of State regu- 
 lation is to be determined by the question : 
 
 1st. "Whether the regulation proposed is strictly local in 
 its operation, or whether it acts upon commerce in respects 
 that admit of uniform rule throughout the country? 
 
 As a guide to this determination the courts wUl also con- 
 sider : 
 
 2d. Whether the State authority is exercised in good faith, 
 and is appropriate to the execution of some power belonging 
 to the State? 
 
 The Pv/rpose of a Statute is Disclosed in its Effect. — As 
 early as the case of Gibbons v. Ogden^ it was said that, in 
 distinguishing between regulations of commerce and the ex- 
 ercise of reserved powers belonging to the State, the " dif- 
 ferent purposes mark the distinction between the powers 
 brought into action." In Henderson v. The Mayor ' it was 
 said that, " in whatever language a statute may be framed, its 
 purpose must be determined by its natural and reasonable 
 effect; " and again, in Morgcmh Steamship Go. v. Louisiana,* 
 it was emphatically announced that " in all cases of this kind 
 it has been repeatedly held that when the question is raised 
 whether the State statute is a just exercise of State power 
 
 1 Green's Brice's Ultra Vires (Sd road Co. v. Husen, 95 U. 8. 473; Col- 
 Am. ed.), pp. 42, 71. lins v. New Hampshire, 171 U. S. 
 
 2 9 Wheat. 235. 30. 
 
 8 92 U. S. 259, 268. See also RaU- * 118 U. S. 455-463. 
 
140 PILOTAGE, POET EEGULATIONS, ETC. 
 
 or is intended by roundabout means to invade the domain 
 of Federal authority, tbis court will look into the operation 
 and eflPeot of the statute to discern its purpose." If a stat- 
 ute purporting to have been enacted in the exercise of the 
 poUce power of the State has no real or substantial relation 
 to the objects of that power, it is the duty of the courts to 
 so adjudge and thereby give effect to the Constitution.^ 
 
 The courts wiU not, however, inquire into the motives of 
 legislators, except as they may be disclosed on the face of 
 the statute under consideration, or m.ay be inferable from 
 its operation, considered with reference to the condition of 
 the country and existing legislation, and with reference also 
 to the condition of trade and manufacture within and with- 
 out the legislating State.^ 
 
 In most cases the law which has conflicted with Federal 
 commercial authority has been enacted under the State po- 
 lice power. This is the power of self-defense which belongs 
 to every State, — to protect Ufe, liberty, property, public 
 health and public morals. Any regulation which goes be- 
 yond what is appropriate for these purposes exceeds police 
 power.' 
 
 Pilotage. 
 
 By the act of August Y, 1789,* it was provided by Con- 
 gress that piLotage should continue to be regulated by such 
 laws as the States respectively should enact until further 
 legislation on the subject by Congress. The form of this 
 statute has attracted much comment,' but the construction 
 is now settled that the statute could not enlarge State pow- 
 
 iMugler V. Kansas, 123 U. S. 633, 465; In re Ah Pong, 3 Sawy. 144; 
 
 661; Minnesota v. Barber, 136 U. S. Salzensteiii v. Mavis, 91 IlL 391. 
 
 313, 350; Henaington t. Georgia, * XJ. S. Eev. Stat., sees. 4385,4236. 
 
 163 U. S. 399, 303; Seott v. Donald, sSee opinion of Mr. Justice Mo- 
 
 165 U. S. 58. Lean in the Passenger Cases, 7 How. 
 
 2 Soon Hing v. Crowley, 113 U. S. 401, 402; also, opinion of Mr. Chief 
 
 703; Ex parte Brown, 48 Fed. Bep. Justice Taney in the License Cases, 
 
 435, 443; Farris v. Henderson, 1 5How. 580; Bantav. McNeil, 5Ben. 
 
 OkL 384. 74; Weaver v. McLeUan, 5 Ben. 79. 
 
 'Railroad Co. v. Husen, 95 U. S. 
 
PIIiOTAGB, POET EEGTTLATIONS, ETC. 141 
 
 ers, and that it did not adopt future enactments. Its effect 
 was to manifest the understanding of Congress that the 
 power to legislate on this subject is not exclusive in the 
 Federal government.^ 
 
 Following this practice the States have, ever since the 
 adoption of the Constitution, established regulations of pilot- 
 age, fixing the qualifications of pilots ; compelling them to 
 serve when called upon,^ and requiring vessels to accept 
 their services ; ' forbidding persons without a State license to 
 act in this capacity,* and requiring vessels to pay for their 
 services whether accepted or not." These statutes apply to 
 vessels navigating within a State, although they may not be 
 bound to or from its ports. Thus, it has been held that pilot 
 fees fixed by the State of Delaware may, under the Federal 
 statute, be recovered from vessels navigating Delaware Bay, 
 although bound to or from the port of Philadelphia, and 
 notwithstanding a statute of Pennsylvania exempting ves- 
 sels from the duty of taking a pUot.* 
 
 The States may fix charges for pilotage ;'' may require a 
 pilot who deserts his vessel to return the pay which he has 
 
 1 In re Eahrer, 140 tJ. S. 545; In 598; The Bark Alaska, 3 Ben. 391; 
 re Spickler, 43 Fed. Rep. 653. Master, etc. of Port of New Orleans 
 
 2 Low V. Commissioners of Pilot- v. The Martha J. Ward, 14 La. Ann. 
 age, R. M Charlt (Ga.) 303. 387. 
 
 3 State V. Penny, 19 8. C. 318. SThe Clymene, 9 Fed. Rep. 165, 
 * People V. Sperry, 50 Barb. 170; 13 Fed. Rep. 346; The Alzena, 14 
 
 People T. Board, etc. of Pilots, 33 Fed. Rep. 174; The Agnes R. Bacon, 
 
 Hun, 608; Bamaby v. State, 31 Ind. 16 Fed. Rep. 480; Dryden v. Com- 
 
 450. monwealth, 16 B. Mon. 598; Neil v. 
 
 8 Steamship Co. v. Joliffe, 3 Wall. "Wilson, 14 Oreg. 410; Chambers v, 
 
 450; Ex parte McNeil, 13 WalL 336; S. S. Clymene, 14 Phila. 603; Hop- 
 
 Cooley V. Board of Wardens, 13 kins v. Wyckoff, 1 Daly, 176. 
 How. 399; Wilson v. McNamee, 103 ^The Agnes R Bacon, 16 Fed. 
 
 U. S. 573; The Alcalde, 30 Fed. Rep. Rep. 480; Schooner Wave t. Hyer, 
 
 133 ; The William Law, 14 Fed. Rep. 3 Paine, 131 ; Master of Port v. The 
 
 793; The Brig America, 1 Lowell, Charles Morgan, 14 La. Ann. 603; 
 
 176; StniweU V. Eaynor.l Daly, 47; The Bark Alaska, 3 Ben, 391; The 
 
 Murray v. Clark, 4 Daly, 468; The Chase, 14 Fed. Rep. 854; Virden ■». 
 
 Oeorge S. Wright, Deady, 591; Dry- Brig Charles A, Sparks, 13 W. N. C. 
 
 den V. Commonwealth, 16 R Mon. 300. 
 
14:2 PILOTAGE, POET EEGTJLATIONS, ETC. 
 
 received, — and both, of these provisions may operate beyond 
 the boundaries of the State ; ^ but, as in all other cases of 
 State legislation affecting commerce, regulation of pilotage 
 is valid only when there is no discrimination in favor of cit- 
 izens of the State making the regulation.^ 
 
 The "whole subject is within Federal control, and State 
 regulations are superseded by Federal legislation.' 
 
 By such action, however. Congress does not repeal, but 
 suspends the State law, and when the act producing this re- 
 sult is repealed, or modified so as to permit the operation of 
 State law, it is again effective.* 
 
 Poet EEGULAxioifs. 
 
 " Upon similar grounds what are termed harbor dues or 
 port charges, exacted by the State from vessels in its harbors, 
 or from their owners, for other than sanitary purposes are 
 sustained. . . . The State may prescribe regulations for 
 the government of vessels whilst in its harbors; it may 
 provide for their anchorage or mooring, so as to prevent 
 confusion and collision. It may designate the wharves at 
 
 iWillson V. McNamee, 102 U. S. 1 Daly, 176; Dryden v. Common- 
 
 573; The Whistler, 13 Fed. Eep. 395; wealth, 16 B. Mon. 598; Edwards 
 
 The Bark Nevada, 7 Ben. 386; Wil- t. 8. S. Panama (TJ. S. 0. 0. Oreg.), 
 
 son V. MiUs, 10 Abb. Pr. (N. S.) 143; 1 Oreg. 418; United States- ex reL 
 
 Peterson v. Walsh, 1 Daly, 183 ; Nell Spink, 19 Fed. Eep. 631 ; Cisco v. Rob- 
 
 Y. Wilson, 14 Oreg. 410 ; Chambers erts, 6 Bosw. (N. T.) 494; The Alzena, 
 
 V. S. S. Clymene, 14PhiIa. 603. Con- 14 Fed. Eep. 174; Eowland v. The 
 
 tra, Virden's Appeal, 13 Phila. 151. South Cambria, 37 Fed. Eep. 535; 
 
 2TT. S. Eev. Stat., sec. 4337; The Abercom,36Fed.Eep.877; The 
 
 Spraigue v. Thompson, 118 U. S. 90; Clymene, 9 Fed. Eep. 165, 13 Fed. 
 
 Thompson v. Spraigue, 69 Ga. 409; Eep. 346; Cribb v. State, 9 Fla. 409. 
 Freeman v. The Undaunted, 37 Fed. * Henderson v. Spoflford, 59 N. Y. 
 
 Eep. 663; The Alameda, 31 Fed. Eep. 131, affirming 10 Abb. Pr. (N. S.) 
 
 366,33 Fed. Eep. 331; Chapman v. 140; Board of Commissioners v. 
 
 MiUer, 3 Spears (S. C), 769. Pacific Mail S. S. Co., 53 N. Y. 609; 
 
 3U. S. Eev. Stat., sees. 4443, 4444; Sturgis v. SpofEord, 45 N. Y. 446. 
 
 Act of Aprn 17, 1874, 18 Stat. L. 30, Conf. Commonwealth v. Calhane, 
 
 Supp. E. S. 8; Sturgis v. Spofford, 154 Mass. 115; In re Eahrer, 140 
 
 45 N. Y. 446 ; Henderson v. Spoflford, U. S. 545, reversing 43 Fed. Eep. 556 ; 
 
 59 N. Y. 131; Hopkins v. Wyckoflf, State v. Lord, 66 N. H. 479. 
 
PILOTAGE, POET BEGULATIONS, ETC. 143 
 
 wiiioh they shall discharge and receive their passengers and 
 cargoes, and require their removal from the wharves when 
 not thus engaged, so as to make room for other vessels. It 
 may appoint officers to see that the regulations are carried 
 out, and impose penalties for refusing to obey the directions 
 of such officers ; and it may impose a tax upon vessels suffi- 
 cient to meet the expenses attendant upon the execution of 
 the regulations. The authority for establishing regulations 
 of this character is found in the right and duty of the su- 
 preme power of the State to provide for the safety, conven- 
 ient use and undisturbed enjoyment of property within its 
 limits; and charges incurred in enforcing the regulations 
 may properly be considered as compensation for the facil- 
 ities thus furnished to the vessels." ' But where no services 
 are rendered no charge can be made.^ 
 
 It has therefore been held that State laws prohibiting the 
 assumption of the title " Port Wardens " by persons not duly 
 appointed,' and requiring fees from vessels for services either 
 rendered or tendered by Port "Wardens^ duly appointed, are 
 constitutional exercises of the municipal authority. Upon 
 the same principle, State laws prohibiting the deposit of offal 
 in certain rivers and bays,^ or prohibiting the floating of 
 loose logs in rivers,* or permitting such floating, even to the 
 material' obstruction of navigation,^ and establishing harbor 
 
 1 Gloucester Ferry Co. v. Penn- ' Curtin t. People, 26 Hvm, 564 
 sylvania, 114 U. S. 196-314; The ^PortWardensv.TheM. J. Ward, 
 James Gray v. The John Frazer, 21 14 La. Ann. 287; Port Wardens v. 
 How. 184; Vanderbilt v. Adams, 7 The Charles Morgan, 14 La. Ann. 
 Cow. 349-351; Scott v. Wilson, 3 603; Port Wardens v. Salvador 
 N. H. 331; Port Wardens v. The Prats, 10 Eob. 459. 
 
 M. J. Ward, 14 La. Ann. 387; Cisco 5 New York v. Ferguson, 23 Hun, 
 
 V. Roberts, 36 N. Y. 393; Benedict v. 594; City of Ogdensburg v. Lyon, 7 
 
 VanderbUt, 1 Eobt. (N. Y.) 194, 35 Lans. 315. 
 
 How. Pr. 209; Green v. The Helen, « Craig v. Kline, 65 Pa. St. 899; 
 
 1 Fed. Rep. 916; The Clover, 1 Low. Harrington v. Connecticut River 
 
 343; City of Ogdensburg V. Lyon, 7 Lumber Co., 139 Mass. 580; Scott 
 
 Lans. 315. v. New Hampshire, 3 N. H 331; 
 
 2 Webb V. Dunn, 18 Fla. 721; Henry v. Roberts, 50 Fed. Rep. 903. 
 Steamship Co. v. Port Wardens, 6 ' Heerman v. Beef Slough, etc. 
 Wall. 3L Co., 8 Biss. 334. 
 
144 PILOTAGE, POET EEGTXLATIONS, ETC. 
 
 lines beyond which, wharves shall not be constrncted,* have 
 &]1 been sustained. But the only interference which the 
 State, in its port regulations, may make with the landing 
 and receiving of passengers and freight, is confined to such 
 measures as will prevent confusion among vessels and col- 
 lision between them, insure their safety and convenience, 
 and facilitate the discharge or receipt of their passengers or 
 freight.' 
 
 "Whaefage. 
 
 This is defined in Transportation Co. v. Pa/rTce/rsbwrg * as 
 " a charge against a vessel for using or lying at a wharf 
 or landing, a rent charged by the owner of the property for 
 its temporary use." A State or municipal corporation may, 
 in the exercise of its legitimate authority, construct wharves 
 in navigable waters, and require vessels landing at its port 
 to put up at such wharves,* and to pay a reasonable com- 
 pensation for their use.^ 
 
 It was at one time considered that a wharfage charge 
 could be imposed upon a vessel landing or mooring in any 
 part of the port, though it did not use a wharf or other im- 
 provement.^ The case in which this doctrine was announced 
 
 lYesler v. Washington Harbor 433; Vicksburg v. Tobin, 100 U. S. 
 
 Line Commissioners, 146 U. S. 646; 430; Guy v. Baltimore, 100 U. S. 434; 
 
 Prosser v. Northern Pacific R. E., Packet Co. v. Keokuk, 95 TJ. S. 80; 
 
 153 U. S. 59; Grand Trunk Ey. v. The Ann Eyan, 7 Ben. 30; Sterrett 
 
 Backus, 46 Fed. Eep. 311; Act of v. Houston, 14 Tex. 153; Sweeney 
 
 Congress, Sept. 19, 1890, Supp. E. S. v. Otis, 37 La. Ann. 530; People v. 
 
 801; Harbor Line Commissioners Williams, 64 Cal. 498; Northwest- 
 
 V. State ex reL Yesler, 3 Wash. 530; ern Packet Co. t. City of Louisiana, 
 
 -State V. Board of Commissioners, 4 4 DiU. 17; Noi-thwestem Packet 
 
 Wash. 816. Co. v. Clarksville, 4 DilL 18; North- 
 
 2 Gloucester Ferry Co. v. Pennsyl- western Packet Co. v. Hannibal, 4 
 
 vania, 114 U. S, 196-306. DilL 18; Worsley v. Second Munici- 
 
 3 107 U. S. 691. pality of New Orleans, 9 Eob. (La.) 
 
 * Ouachita Packet Co. v. Aiken, 334; Northwestern Packet Co. v. 
 
 131 U. S. 444 16 Fed. Eep. 890 ; Packet St. Louis, 4 DiU. 10. 
 Co. V. Catlettsburg, 105 TJ. S. 559. « Cannon v. New Orleans, 37 La. 
 
 5 Packet Co. v. St. Louis, 100 U. S. Ann. 16. 
 
PILOTAGE, POET EEGTJLATIONS, ETC. 145 
 
 was reversed by tlie Supreme Court,^ and it is now well settled 
 that wharfage charges can only be made as compensatiou 
 for facilities actually furnished.'' 
 
 A State may determine the rates which individuals may • 
 charge for the use of wharves, and may give a lien on ves- 
 sels using wharves to secure payment. This Hen may be 
 enforced in admiralty,' and the amount of the fees may be 
 graded according to the tonnage of vessels, when this means 
 is adopted to determine the value of services rendered, or of 
 wharfage privileges.* But when the charges are imposed 
 upon a vessel without reference to value of service rendered, 
 whether graded by tonnage or not, they are duties of ton- 
 nage within the constitutional prohibition.* 
 
 It is said that, as long as charges amount only to reason- 
 able compensation for the facilities afforded, they constitute 
 no tax upon commerce, no matter what may be done with the 
 money coUeoted.' It has been said that the reasonableness 
 of rates, in the absence of Federal legislation, is determined 
 by the State law;^ but the more recent cases hold that this 
 inquiry is open in the courts.* 
 
 1 Cannon v. New Orleans, 30 WalL McMains, 30 La. Ann., Part 1, 190; 
 677. Leathers v. Aiken, 9 Fed. Eep. 679; 
 
 2 New Orleans v. Wilmot, 31 La. Cooley on Taxation, p. 93. 
 
 Ann. 65; Sweeney v. The Lizzie E., ^imnan S. S. Co. t. Tinker, 94 
 
 30 Fed. Rep. 876; Shreveportv. Red U. S. 338; Cannon v. New Orleans, 
 
 River, etc. Line, 37 La. Ann. 563; 30 Wall. 577; Peete v. Morgan, 19 
 
 Harbor Masters of Mobile v. South- WalL 581 ; State Tonnage Tax Cases, 
 
 erland, 47 Ala. 511. 13 WalL 204; Steamship Co. v. Port 
 
 3 Broeck V. John M Walsh, 3 Fed. Wardens, 6 WalL 31; Johnson v. 
 Bep. 364 ; Ex parte Easton, 95 U. S. 68. Drununond, 20 Gratt. 419 ; Board v. 
 
 « Packet Co. V. Catlettsburg, 105 Pashley, 19 S. C. 315. 
 
 IT. S. 559; Ouachita Packet Co. v. ^ Leathers v. Aiken, 9 Fed. Rep. 
 
 Aiken, 131 U. S. 444^ 16 Fed. Rep. 679. 
 
 890; Packet Co. v. St. Louis, 100 'Ouachita Packet Co. v. Aiken, 
 
 U. S. 433; Packet Co. v. Keokuk, 95 131 U. S. 444; Transportation Co. v. 
 
 U. S. 80; Cannon v. New Orleans, Parkersburg, 107 U. S. 691; Swee- 
 
 20 WalL 577; Muscatine v. Packet ney v. Otis, 87 La. Ann. 530. Conf. 
 
 Co., 45 Iowa, 185 ; Keokuk v. Packet Packet Ca v. Catlettsburg, 105 U. S. 
 
 Co., id. 196; First Municipality v. 559. 
 
 Pease, 3 La. Ann. 538; Ellerman v. e Post, pp. 149, 180. 
 10 
 
146 PILOTAGE, POET BEGtTLATIONS, ETC. 
 
 QTTAEANTmE. 
 
 Quarantine laws belong to that class of State legislation 
 which is valid until displaced by Congress. " The matter is 
 one in which the rules that should govern it may in many 
 respects be different in different localities, and for that rea- 
 son be better understood and more wisely established by the 
 local authorities. The practice which should control a quar- 
 antine station on the Mississippi River, a hundred miles from 
 the sea, may be widely and wisely different from that which 
 is best for the harbor of New York." ^ 
 
 The authority of the States in these matters has never 
 been questioned, and receives express recognition in the 
 United States statutes.' In the exercise of its laws a State 
 acts upon the vessel, cargo, officers, seamen and passengers. 
 It may require them to undergo examination; may interrupt 
 the voyage for days or weeks; and may impose a charge 
 upon the vessel to defray quarantine expenses. Such laws, 
 whether passed with intent to regulate commerce or not, 
 have that effect, and nevertheless are valid until displaced 
 or contravened by some legislation of Congress. 
 
 In Tram, v. Dismfectvng Co? it was held that a State may 
 disinfect aU rags arriving at its port, and make a charge 
 therefor which shall be a lien upon the rags, and that the 
 owner cannot be allowed to show that the rags did not need 
 disinfection. 
 
 This case should be compared with that of Bcdl/road Co. 
 V. Husm,^ in which a statute of Missouri enacting that " no 
 
 1 Morgan, etc. Co. v. Louisiana, 118 p. 709. In the Milner Case, 57 Fed. 
 TJ. S. 455, 465; Minneapolis, etc. Ey. Rep. 276, reference is made to the 
 Co. V. Milner, 57 Fed. Eep. 276 ; Eail- Act of February 15, 1893. In regard 
 road Co. v. Board of Health, 36 La. to transportation of animals and 
 Ann. 666. food products, see Act of March 3, 
 
 2 Acts of 1796 and 1799, 1 Stat. L. 1891, 1 Supp. U. S. Rev. Stat., p. 987; 
 474, 619; U.S. Rev. Stat., tit. 58; Act of August 30, 1890, 1 Supp. U. S. 
 20 Stat. L. 37; Act of April 29, 1878, Rev. Stat., p. 794. 
 
 1 Supp. U. S. Rev. Stat., c. 66, p. 157; ' 144 Mass. 523. See also State v. 
 
 Act of March 3, 1891, 1 Supp. U. S. Fosdick, 21 La. Ann. 256. 
 
 Rev. Stat., p. 984; Act of March 27, * 95 U. S. 465, reversing Husen v. 
 
 1890, 1 Supp. U. S. Rev. Stat.,c. 51, Railroad Co., 60 Mo. 226; State v. 
 
PILOTAGE, POKT KEGTJLATIONS, ETC. 147 
 
 Texas, Mexican, or Indian cattle shall be driven or otherwise 
 conveyed into, or remain, in any county in this State, be- 
 tween the first day of March and the first day of November 
 in each year," and giving an action against persons violating 
 the act for damages sustained on account of disease com- 
 municat'ed by such cattle, was held invalid. 
 
 In this case the court looked at the effect of the statute to 
 determine its purpose, which it found to be the obstruction 
 of interstate commerce, and discrimination against the prop- 
 erty of citizens of other States. In Tram, v. Disinfecting 
 Co. no such purpose appears. It seems in this case to have 
 been very properly suggested by the court that, as some 
 things may be pronounced nuisances per se, certain articles, 
 such as rags, may always be subject to quarantine regula- 
 tions, and as, in the latter case, the statute extended no 
 further than its proposed object, it was held to be a consti- 
 tutional exercise of the State authority. 
 
 This power has been applied by different States, not only 
 to goods and passengers arriving from foreign countries, 
 but also to goods and passengers from other States. So an 
 ordinance of St. Louis was sustained which provided that 
 boats coming from below Memphis, having had on board at 
 any time during the voyage more than a specified number 
 of passengers, should remain in quarantine not less than 
 forty-eight hours nor more than twenty days.^ 
 
 Closely associated with the right to establish quarantine 
 regulations is the right of the State to exclude from its lim- 
 its convicts, paupers, idiots, lunatics, and persons likely to 
 become a public charge.^ Such a right is limited by the 
 
 Duckworth (Idaho), 51 Pao. Rep. 456; iSt. Louis v. McCoy, 18 Mo. 238; 
 
 Gilmore v. Hannibal, etc. E. Co., 67 St. Louis v. Boffinger, 19 Mo. 13. 
 
 Mo. 833. Conf. Grimes v. Eddy, 136 2 Railroad Co. v. Htisen, 95 U. S. 
 
 Ma 168. Contra, Yeazel v. Alex- 465, 471. See the following Federal 
 
 ander, 58 HL 254; Mercer v. Kansas statutes on this subject: Act of 
 
 City, etc. R Co., 60 Mo. 397; Ken- March 3, 1891, 36 Stat L. 1084, Supp. 
 
 nedy v. Hannibal, etc. E. Co., 62 Mo, Eev. Stat. 934 As to inamigration 
 
 476; Wilson v. Kansas City, etc. Ey. of convicts and prostitutes, see Act 
 
 Co., 60 Mo. 184 Seejpos*, p. 170. of March 3, 1875, 18 Stat. L. 477, 
 
148 PILOTAGE, POKT EEGULATIONS, ETC. 
 
 right in whicli it has its origin — that of self-defense.* Be- 
 yond what is absolutely necessary for its self -protection, a 
 State may not interfere with interstate commerce; and any 
 statute which obstructs the entrance of persons who are 
 neither paupers, vagabonds nor criminals, nor in any wise 
 unsound in body or mind, is not an exercise of tie police 
 power of the State in any just sense of that term.* 
 
 Quarantine and Other Fees and Tolls Distinguished from 
 Taxes. — A State cannot tax interstate commerce, and such 
 a tax is not made valid by calling it an inspection fee, or a 
 quarantine or wharfage due. The question is determined 
 upon the facts and circumstances of the case, whether the 
 payment demanded is actually a tax, or merely a compensa- 
 tion for services rendered. A tax is defined as " a contribu- 
 tion imposed by the government on individuals for the serv- 
 ice of the state." ' And where the whole or any part of such 
 collections go to defray governmental expenses, it is perhaps 
 the strongest evidence that the payment required is in fact a 
 tax. On the other hand, where the amount contributed to 
 the government is small, and the payment required is reason- 
 ably related to the service rendered, the evidence strongly 
 supports the conclusion that such a requirement is not a tax, 
 but is compensation for services. " A tax is a demand of 
 sovereignty; a toll is a demand of proprietorship."* 
 
 Thus, in Philadelphia v. Telegraph Co.^ it was held that a 
 
 Supp. Eev. Stat. 86; Act of Aug. 3, note to Supp. Eev. Stat. 635; Act of 
 
 1883, 33 Stat. L. 314, Supp. Rev. Stat. Oct. 1, 1888, 35 Stat L. 504, Supp. 
 
 370. As to contract labor, see Act Eev. Stat. 635; Act of May 5, 1893, 
 
 of Feb. 36, 1885, 38 Stat. L. 333, Supp. 27 Stat. L. 35. 
 
 Eev. Stat. 479; Act of Feb. 33, 1887, i In re Ah Fong, 3 Sawy. 145. 
 
 34 Stat. L. 414, Supp. Eev. Stat. 541 ; 2 State v. Constitution, 43 CaL 578 ; 
 
 Act of Oct. 19, 1888, 35 Stat. L. 565, ante, p. 56. 
 
 Supp. Eev. Stat. 633. Chinese ex- 3 Morgan v. Louisiana, 118 U. S. 
 
 elusion laws, etc.. Act of March 3, 455, 461. 
 
 1875, 18 Stat. L. 477, Supp. Eev. Stat. 4 state Freight Tax, 15 WaE 332, 
 
 86; Act of May 6, 1883, 32 Stat. L. 278; St. Louis v. Telegraph Co., 148 
 
 58, Supp. Rev. Stat. 86; Act of July U. S. 93. 
 
 5, 1884, 33 Stat. L. 115, Supp. Eev. 5 40 Fed. Eep. 615, 83 Fed. Eep. 797. 
 
 Stat. 458; Act of Sept. 13, 1888, see See Huse v. Glover, 119 U. S. 543. 
 
PILOTAGE, POET EEGULATIONS, ETC. 149" 
 
 municipal corporation could require reimbursement for its 
 expense in regulating agents of interstate commerce, and 
 that a collection from such agent of a very trifling surplus 
 would not invalidate its action. But it was said that when 
 a city demanded a large excess over the amount of its ex- 
 penses, the charge became a tax pure and simple. 
 
 In Patapsco Chiomo Go. v. State Board of Agricultv/re^ 
 a question was raised as to the validity of an inspection fee, 
 on th« ground that it exceeded the cost of inspection. The 
 court noticed that the charge imposed was, in terms, levied 
 to pay expenses of inspection, and refused to examine whether 
 the amount was excessive, except to decide whether the fee 
 was only colorably an inspection charge, or was in substance 
 a tax.2 
 
 In the recent case of Oiiy of St. Louis v. Telegraph Go.^ 
 the same question was presented by an ordinance requir- 
 ing a payment of five dollars a year for every telegraph 
 or telephone pole placed in the streets. It was said by the 
 court that the charge was in the nature of rental, not a tax; 
 that the occupation of the streets by a company engaged in 
 interstate commerce cannot be denied by the city; that aU 
 the city can insist upon, in this respect, is a reasonable com- 
 pensation for the space in the streets which has been exclu- 
 sively appropriated, and that it cannot, under these cir- 
 cumstances, be left to the city alone to determine what is 
 a reasonable rental. " The inquiry must be open in the courts, 
 and it is an inquiry which must depend largely upon matters 
 not apparent upon the face of the ordinance, but existing 
 only in the actual state of affairs in this city." 
 
 On the other hand, where there has been no benefit con- 
 ferred by the municipality, and the charge which it is sought 
 to impose is not a compensation for services rendered or ad- 
 vantages given, it necessarily follows that it is beyond the 
 power of the State.* 
 
 1 52 Fed. Eep. 690. ' 149 U. S. 465, 148 U. S. 93. 
 
 2 See also Packet Co. v. Aiken, 131 * Harmon v. City of Chicago, 147 
 
 n S. 444;ITeilsonv. Garza, 3 Woods, U. S. 896; Camion v. New Orleans, 
 
 287. 30 WaU. 577; New Orleans v. Wil- 
 
150 
 
 PILOTAGE, POET EEGULATIONS, ETC. 
 
 All State regulations of commerce must be uniform, and 
 any discrimination against other States, whetlier under tlie 
 guise of inspection, pilotage, wharfage, or however made, is 
 unconstitutional.! 
 
 Takiitg AiTD Sale or G-ame and Fish. 
 
 The game within a State belongs to the people in their 
 collective capacity. It is not the subject of private owner- 
 ship, except as permitted by State law, and it is within the 
 power of a State to control, restrict and regulate its taking 
 by individuals.'' In the enforcement of such laws a State 
 may prohibit all traffic within its limits in the meat of game 
 animals, without reference to the place where the animal 
 was taken;' and it may permit the taking of such animals 
 within the State, but prohibit theif exportation.* It may 
 also regulate the taking and transportation of shell fish and 
 oysters,' though Congress may regulate fishing by American 
 vessels outside the boundaries of the States.' 
 
 mot, 31 La. Ann. 65; Kailroad Ca 
 V. Board, of Health, 36 La. Ann. 
 666; Morgan v. Louisiana, 118 U. S. 
 455. 
 
 iVoight V. Wright, 141 U. S. 62; 
 Minnesota v. Barber, 136 TJ. S. 813; 
 Brimmer v. Eebman, 188 U. 8. 78; 
 Guy V. Baltimore, 100 U. S. 484; 
 Georgia Packing Co. v. The City of 
 Macon, 60 Fed. Rep. 774; Spellman 
 V. New Orleans, 45 Fed. Eep. 3; 
 Swift V. Sutphin, 39 Fed. Eep. 399; 
 Ex parte Hanson, 28 Fed. Eep. 127; 
 The Alameda, 31 Fed. Eep. 366 ; Free- 
 man V. The Undaunted, 37 Fed. Eep. 
 662; Wen v. Calhoun, 25 Fed. Rep. 
 865 ; The John M. Welch, 18 Blatch. 
 54; Higgins v. Three Hundred Casks 
 of Lime, 130 Mass. 1 ; Vines v. State, 
 67 Ala. 75; State v. Kline, 126 Ind. 
 68; Schmidt v. People, 18 Colo. 78; 
 People V. Roberts, 35 Pac. Eep. 496; 
 State V. North & Scott, 27 Mo. 464; 
 Chapman v. Miller, 2 Spears (S. C), 
 
 769; The Wharf Case, 3 Bland, Ch. 
 (Md.) 861. 
 
 »Lawton v. Steele, 153 U. S. 133; 
 United States v. Alaska Packers' 
 Ass'n, 79 Fed. Eep. 153. 
 
 SMagner v. People, 97 EL 381; 
 Phelps V. Eacey, 60 N. Y. 10; State 
 V. Randolph, 1 Mo. App. 15; People 
 V. O'Neil (Mich.), 68 N. W. Eep."227; 
 Eoth V. State, 51 Ohio St. 209. Conf. 
 Commonwealth v. HaU, 128 Mass. 
 410; Ex parte Maier, 103 CaL 476. 
 The contrary doctrine was laid 
 down in Bennett v. Express Co., 83 
 Me. 236; State v. Saunders, 19 Kan. 
 127. 
 
 ^Geer v. Connecticut, 161 U. S. 
 519; State t. Geer, 61 Conn. 141. 
 Conf. Bennett v. Am. Exp. Co., 83 
 Me. 237. Contra, State v. Saun- 
 ders, 19 Kan. 137. 
 
 6Bradshawv.Lankford,73 Md.431. 
 
 6 United States v. Craig, 28 Fed. 
 Rep. 795. 
 
PILOTAGE, POET BEGULATIONS, ETC. 151 
 
 Each, state owns the bed of navigable waters within its 
 jurisdiction, unless it has been granted away,i and owns also 
 the waters themselves and the fish in them, so far as they 
 are capable of ownership. This title is subject to the para- 
 mount right of navigation, the regulation of which, as to 
 foreign and interstate commerce, belongs to the United 
 States. There has been, however, no grant to Congress of 
 control over fisheries, and they therefore remain under the 
 exclusive control of the State, which has the right, in its 
 discretion, to appropriate its waters and their beds to be 
 used as a common for the taking and cultivating of fish, so 
 far as may be done vsdthout obstructing navigation. Such 
 a use of submerged land is not a privilege of citizenship,^ but 
 a regulation by the people of the use of their common prop- 
 erty. A State may prohibit the gathering,' planting * and 
 taking of oysters within its limits.' It may restrict to its 
 own citizens, or residents, the right to take oysters and fish;* 
 may prevent oysters being taken by vessels owned by non- 
 residents,' and may place other restrictions upon their ex- 
 portation.' It may regulate the time ' and method '" of taking 
 fish and oysters; may require a license for the privilege of 
 
 1 Shively v. Bowlby, 152 U. S. 1 ; ' Corfleld v. CoryeU, 4 Wash. C. C. 
 
 Griffing v. Gibb, 1 McAUister, 313. E. 671. 
 
 2McOready v. Virginia 94 U. S. « State v. Hamab, 95 Ala. 176; 
 
 391; State v. Applegarth, 81 Md. State v. Northern Pac. Exp. Co., 58 
 
 393; Phipps v. State, 33 Md. 380; Minn. 403; Organ v. The State, 56 
 
 Boggs V. Commonwealth, 76 Va. Ark 356. Contra, Territory v. Ev- 
 
 989. ans, 3 IdaJio, 634; Territory v. Nel- 
 
 3 Corfleld v. Coryell, 4 Wash. 0. son, 3 Idaho, 638. 
 
 C. E. 371 ; Haney v. Compton, 7 ' Dunham v. Lamphere, 3 Gray, 
 
 Vroom, 507; State v. Hamib, 95 368; Gentile v. State, 39 Ind. 409; 
 
 Ala. 176. People v. Reed, 47 Barb. 335; State 
 
 < McCready v. Commonwealth, 27 v. Northern Exp. Co., 58 Minn. 403. 
 
 Gratt. 985; McCready v. Virginia, "Smith v. State of Maryland, 18 
 
 94 U. S. 391. How. 71; Commonwealth v. Man- 
 
 «Hess V. Muir, 65 Md. 586, 601. Chester, 153 Mass. 230; Manchester 
 
 6InreMattson,69Fed.Rep. 535; v. Commonwealth, 139 U. S. 340; 
 
 Chambers v. Church, 14 R. L 398; Drew v. Hilliker, 56 Vt. 641; State 
 
 Hess V. Muir, 65 Md. 586, 601; The v. Thompson, 85 Me. 189; Bennett 
 
 Sloop Martha Anne, Olcott's Rep. v. Boggs, 1 Baldwin, 60; State v. 
 
 la Northern Pac. Exp. Co., 58 Minn, 40a 
 
152 
 
 ETO. 
 
 using a dredge,^ and may impose a license tax upon tlie ton- 
 nage of boats engaged in the business.^ The fact that a 
 vessel has a Federal coasting license does not prevent the 
 operation of State laws upon these subjects.' 
 
 It has been held that State statutes prohibiting the sale 
 of fish and game at a time when they could not, under the 
 law, be caught within the limits of the State was operative 
 upon the sale of goods shipped from another State, the rea- 
 son given being that the statute could not be enforced with 
 reference alone to fish or game caught in the State.* 
 
 fesPEOTioN Laws. 
 
 An inspection law is a law providing for the examination 
 of personal property to determine whether it is in proper 
 condition for sale. The authority of the State to enact such 
 laws is expressly recognized by the clause of the Constitu- 
 tion which provides that " I^o State shall without the con- 
 sent of Congress lay any duty or impost on imports or 
 exports except what may be absolutely necessary for exe- 
 cuting its inspection laws." 
 
 The decisions have established that this provision of the 
 Constitution applies only to the foreign trade." So far as 
 
 1 Dize V. Lloyd, 36 Fed. Eep. 651. 
 
 2 State V. Loper, 46 N. J. Law, 331. 
 Contra, Johnson v. Drummond, 20 
 Gratt. 419. See State v. Insley, 64 
 Md.28. 
 
 'Haney v. Compton, 7 Vroom, 
 507; Dize v. Lloyd, 36 Fed. Eep. 561 
 Smith V. Maryland, 18 How. 71 
 Dunham v. Lamphere, 8 Gray, 268 
 Commonwealth v. Manchester, 152 
 Mass. 230; Manchester v. Common- 
 wealth, 139 U. S. 340. 
 
 * People V. O'Neil (Mich.), 68 N. 
 W. Eep. 327; Commonwealth v. 
 Savage, 155 Mass. 378; Eoth.v. State, 
 51 Ohio St. 309. Conf. Common- 
 wealth V. Hall, 128 Mass. 410. 
 
 » Woodruff V. Parham, 8 WalL 
 
 133; Machine Co. v. Gage, 100 U. S. 
 676; Brown v. Houston, 114 U. S. 
 631; Pittsburgh, etc. Coal Co. v. 
 Louisiana, 156 U. S. 590; Patapsco 
 Guano Co. v. Board of Agricult- 
 ure, — U. S. — . As to the word 
 "imports," etc., applied to inter- 
 state trade, see opinion of Mr. 
 Chief Justice Taney in Pierce v. 
 New Hampshire, 5 How. 504 In 
 the case of Fertilizing Co. v. The 
 Board, 43 Fed. Eep. 609-613, it was 
 suggested that the word " imports " 
 might now be applied to interstate 
 trade. "Were it not for the de- 
 cision in Woodruff v. Parham we 
 would not hesitate to say that the 
 term 'import' included, as Cliief 
 
PILOTAGE, POKT EEGTJLATIOISfS, ETC. 15S 
 
 this trade is concerned, therefore, inspection laws apply not 
 only to articles prepared for export, but also to articles brought 
 into the States for trade.^ 
 
 Inspection of Articles of Interstate Commerce. — The in- 
 spection of articles transported from State to State involves 
 considerations in many respects different from those which 
 are involved in the inspection of articles of foreign com- 
 merce, and it may be that the rules applied in the two cases 
 will not in all instances be the same. The Constitution con- 
 templated that aU duties on foreign goods imported into the 
 country should belong to the general government as one of 
 its sources of revenue. It was not expected that either the 
 general government or the States should derive a revenue 
 from commerce among the States.^ It can well be under- 
 stood that a State which desired to tax more heavily than 
 Congress did, foreign liquors, tobacco, or other articles in- 
 jurious to the community, or which interfered with their 
 domestic policy, might be permitted to do so if the tax were 
 approved by Congress, and the proceeds were paid to the 
 United States. It seems improbable, however, that it was 
 intended to permit such a tax to be imposed by neighboring^ 
 States, each upon the commerce of the other for the use of 
 
 Justice Marshall evidently sup- amount to a prohibition on imports 
 
 posed that it did, goods brought from foreign countries, unless sim- 
 
 from one State into another." It is Uar duties existed in other States." 
 
 clear, however, that the Circuit (Letterof Madison to Jefferson, Jan. 
 
 Court had not in mind later cases 22, 1786.) " In this State (Pennsyl- 
 
 cited above, and which take the vania) it is turning out more and 
 
 same view of this provision as that more in evidence that the crop of 
 
 of the Woodruff case. At the same wheat has been very scanty. The 
 
 time, Mr. Justice Miller's statement, Eastern States always require large 
 
 that at the time of the formation importations from the others." (Let- 
 
 of the Constitution and its preced- ter of Madison to Jefferson, Feb. 7^ 
 
 ing discussion the words " exports " 1796.) 
 
 and " imports " were confined to i Addison v. Saulnier, 19 CaL 83. 
 
 foreign trade, is perhaps not alto- 2 views of President Monroe oni 
 
 gether accurate. "The renimoia- Internal Improvements, inclosed 
 
 tion of the right of laying duties in message to Congress, May 4, 1823» 
 on imports from other States would 
 
154 PILOTAGE, POET EEGULATIONS, ETO. 
 
 the Federal governmeiLt, and that Congress under this temp- 
 tation was to arbitrate between the States.^ 
 
 There has been much doubt whether the inspection laws 
 of a State might operate upon articles imported from other 
 States. In the case of Tv/rner v. Ma/rylamd,- among a large 
 number of early inspection laws cited, there is none which 
 imposes an inspection tax upon articles not grown or pro- 
 duced within the State enacting the law ; and in the recent 
 ease of Voight v. Wright,^ the question of the extent to which 
 such laws might operate was regarded as unsettled. It has 
 recently been decided, however, that inspection laws may 
 be applied to articles received from other States * as weU as 
 to those intended for shipment to other States for sale.' 
 
 Inspection Means Examination. — An inspection law must 
 necessarily provide for an ofl&cial view or survey of personal 
 property to distinguish between the good and the bad. A 
 State may not forbid trade in any known article of com- 
 merce on account of its intrinsic nature and injurious conse- 
 quences of its use and abuse. The very meaning of inspection 
 is examination, and not exclusion without a hearing.* 
 
 Inspection laws operate upon personal property which is 
 the subject of commerce. They cannot operate upon vessels 
 or other means of transportation not themselves articles of 
 
 1 Woodruff V. Parham, 8 Wall 133. Board, etc., 48 Fed. Rep. 348 ; Cooley 
 
 2 107 U. S. 38. on Taxation, p. 190; Clark v. Board 
 
 3 141 U. S. 63. of Health, 30 La. Ann. 1351 ; Collins 
 
 * Pittsburg Coal Co. v. Louisiana, v. City of Louisville, 3 B. Mon. 134; 
 
 156 U. S. 590; Patapsco Guano Co. v. State v. Pittsburg, etc. Coal Co., 41 
 
 Board of Agriculture, 171 U. S. 345, La. Ann. 465 ; Green v. The Mayor, 
 
 53Fed.Eep. 690; Van Meter V. Spur- etc. of Savannah, E. M. Charlt. 
 
 rier, 94 Ky. 123; Goodvein v. Ciara- (Ga.) 368; State v. Fosdick, 31 La. 
 
 leigh Phosphate Works, 119 N. C. Ann. 356; Hay Inspectors v. Pleas- 
 
 130; Merriman v. Knox, 99 Ala. 93; ants, 33 La. Ann. 349. 
 
 Brown v. Adair, 104 Ala. 653 ; Gould- s Turner v. Maryland, 107 U. S. 38. 
 
 ing Fertilizer Co. v. Driver, 99 Ga. ^ Railroad Co. v. Husen, 95 U. S. 
 
 623 ; City Council of Charleston v. 465 ; Scott v. Donald, 165 U. S. 58, 93. 
 
 Rogers, 3 MoCord, 495; Glover v. 
 
PILOTAGE, POET EEGULATIONS, ETC. 155 
 
 trade.^ The queation to be determined is one that is capable 
 of solution by immediate survey. A State may not, under 
 the guise of inspection laws, exclude criminals or incompe- 
 tent persons. " Neither at the time of the formation of the 
 Constitution nor since, has any inspection law included any- 
 thing but personal property as a subject of its operation." ^ 
 Moreover, it is not possible by inspection to determine who 
 are habitual criminals, or who are unable to support them- 
 selves, and subject to become a public charge. An inspection 
 is " something which can be accomplished by looking at, or 
 weighing, or measuring the thing to be inspected, or by ap- 
 plying to it at once some crucial test. "When testimony or 
 evidence is to be taken and examined, it is not inspection 
 in any sense whatever." ' In some cases, inspection, to be 
 effective, requires chemical analysis, and it has been held 
 that in these cases State requirements that the vendor shall 
 furnish samples of his goods to the State chemist, and should 
 label the product with the correct statement of its chemical 
 ingredients, are valid.* 
 
 Purpose of Inspection to Exclude Unsound or Fraudulent 
 Goods. — The purpose of the examination provided for by an 
 inspection law is to ascertain whether the articles examined 
 are fit for commerce and to protect the citizens and the market 
 from fraud.^ 
 
 The only question within the competency of the State au- 
 thorities to decide is whether the article examined is, accord- 
 
 1 Railroad Co. v. Board of Health, Meter v. Spurrier, 94 Ky. 32; Gould- 
 36 La. Ann. 666. ing Fertilizer Co. v. Driver, 99 Ga. 
 
 2 People V. Compagnie Transat- 633. Contra, State v. Lagarde, 60 
 lantique, 107 U. S. 59. Fed. Eep. 186. 
 
 3 People V. Compagnie Transat- * People v. Edye, 11 Daly, 182; 
 lantique, 107 U. S. 62. Hospes v. O'Brien, 24 Fed. Eep. 145 ; 
 
 * Patapsco Guano Co. v. Board of People v. Pacific Mail Co., 8 Sawy. 
 
 Agriculture, 171 U. S. 345, 52 Fed. 640, 16 Fed. Eep. 344; Van Meter v. 
 
 Kep. 690; Goodwin v. Caraleigh Spurrier, 94 Ky. 22; State v. Fos- 
 
 Phosphate Works, 119 N. C. 120; dick, 21 La. Ann. 256. 
 Merriman v. Knox, 99 Ala. 98; Van 
 
156 PILOTAGE, POET EEGULATIOHS, ETC. 
 
 ing to commercial usages of the world, in a fit condition for 
 commerce. It does not belong to the State to decide what 
 articles shall be considered legitimate subjects of trade, nor 
 to make an examination of imported articles for any other 
 purpose than that of protecting the market."^ 
 
 Inspection May Include Form, Weight, etc. — This exam- 
 ination, however, need not be limited to a determination of 
 the quality of the articles in question, but may extend also 
 to their form, size and weight; but no unreasonable restric- 
 tion may be placed on articles brought from other States or 
 countries.* 
 
 The form and capacity of the package, and the mode of 
 putting up and marking various articles, are recognized 
 elements of inspection laws, " aU these matters being super- 
 vised by a public officer having authority to pass or not pass 
 the article as lawful merchandise, as it did, or did not, an- 
 swer the prescribed requirements. It has never been re- 
 garded as necessary, and it is manifestly not necessary, that 
 all of these elements should co-exist in. order to make a valid 
 inspection law. Quality alone may be the subject of inspec- 
 tion without other requirements or the inspection may be 
 made to extend to all of the above matters. "When all are 
 prescribed, and then inspection as to quality is dropped out, 
 leaving the rest in force, it cannot be said to be a necessary 
 legal conclusion that the law has ceased to be an inspection 
 law."' Measurements alone may be the object of an in- 
 spection law.* 
 
 In making such an examination it is not foreign to the 
 character of an inspection law to require that the articles to 
 be inspected shall be brought to the officer. This is a mat- 
 ter over which the State has reasonable discretion.' 
 
 1 Foster v. Master of the Port, 94 a Turner r. Maryland, 107 U. S. 38, 
 U. S. 346, reversing Master of the 55. 
 
 Port V. Foster, 36 La. Asm. 105. * Collins v. City of Louisville, 2 B. 
 
 2 Higgins V. Three Hundred Casks Mon. 134. 
 
 of Lime, 180 Mass. 1. ' Turner v. Maryland, 107 U. S. 38, 
 
 55 Md. 340. 
 
PILOTAGE, POET EEGTJLATIOUS, ETC. 157 
 
 Fertilizers. — It is of importance to every State to prevent 
 the deterioration of its soil, and maintaia the quality and 
 quantity of its agricultural products ; and it has been held 
 that a State may require that all fertilizers should be sub- 
 mitted to an examination, and that statements of their ingre- 
 dients should be attached to every package.^ 
 
 Inspection Fees. — The amount of the charge which a State 
 can lawfully impose for inspection is by the Constitution 
 limited, in the case of foreign commerce, to such sum as is 
 absolutely necessary for execution of its inspection laws ; and 
 so long as the charge imposed is of an amount which can 
 reasonably be considered an inspection fee, a Federal court 
 wiU not determine the question whether it is excessive. In 
 all these matters State legislation is subject to the " revision 
 and control of Congress," ^ by whom alone the question is 
 determined whether an inspection charge is excessive. It is, 
 however, the function of any court, before which the question 
 may arise, to determiue whether or not a charge imposed 
 by the State under the guise of an inspection law is, in its 
 nature, an inspection fee or a tax;' and as a guide to such a 
 determination the court will consider not only the amount 
 of the charge, but also the apparent purpose of the enact- 
 ment, and whether it be to evade the constitutional prohi- 
 bitions.* 
 
 Feeeies ajsd Beidgbs. 
 
 A ferry is a public highway, " a continuation of a road," 
 and, so far as concerns the authority of the State and of the 
 United States, does not differ from a toll bridge. " It is a 
 franchise which approaches so near to that of a bridge, that 
 
 1 Patapsco Guano Co. v. Board of 633. Contra, State of Louisiana v. 
 
 Agriculture, 171 U. S. 345, 52 Fed. Lagarde, 60 Fed. Eep. 186. 
 
 Eep. 690; Goodwin v. Caraleigh 2 Xumer v. Maryland, 107 U.S. 38; 
 
 Phosphate Works, 119 N. 0. 130; Patapsco Guano Co. v. Board, etc. 
 
 Merriman v. Knox, 99 Ala. 93; of North Carolina, — U. S. — . 
 
 Brown v. Adair, 104 Ala. 653; Van 'Patapsco Guano Co. v. Board of 
 
 Meter v. Spurrier, 94 Ky. 28; Gould- Agriculture, 53 Fed. Rep. 690. 
 
 ing Fertilizer Co. v. Driver, 99 Ga. * Goodwin v. Caraleigh Phosphate 
 
 Works, 119 N. C. 130. 
 
158 PILOTAGE, POET EEQUIATIONS, ETC. 
 
 human ingenuity has not, as yet, been able to state any as- 
 signable difference between them, except that one includes 
 the right of pontage and the other of passage or ferriage." ^ 
 A State may grant franchises of ferries and bridges, both 
 to cross waters wholly within its limits and waters forming 
 the boundaries between States.^ 
 
 At the time of the formation of the Constitution and dur- 
 ing the earlier periods of constitutional construction, the 
 establishment and regulation of highways, whether within 
 the States or across their boundaries, was a matter pre- 
 eminently of local concern. The roads within a county in- 
 terested so largely the residents of that county, and affected 
 remoter localities in so much smaller degree, that their con- 
 trol could safely be left to the States and municipalities. 
 "With the improvement of transportation this condition dis- 
 appeared. The local traffic of a single county upon a great 
 highway is now, in most instances, of small importance 
 when compared to the larger interests at a distance. The 
 right of free ferriage at Detroit is probably of much more 
 importance to the great Northwest and Northeast, extending 
 for a thousand miles on each side, than it is to the residents 
 of Detroit and "Windsor. 
 
 At the same time, in many aspects, ferries and bridges, like 
 turnpikes, stiU have local interest and importance which 
 give them peculiar standing. Their transportation is essen- 
 tially local, in most oases being measured by feet, and in 
 comparatively few cases exceeding a mile. In many in- 
 stances the traffic concerned is stiU almost entirely within 
 the neighborhood. Along the thousands of miles of water- 
 way within the country, such transportation is performed 
 
 1 Charles Biver Bridge v. War- Ter. 480, 492; ChiapeUa v. Brown, 
 ran Bridge, 11 Pet. 420; Covington, 14 La. Ann. 185; Wiggins Ferry Co. 
 etc. Bridge Co. v. Kentucky, 154 v. East St. Louis, 107 U. S. 865; 
 U. S. 204, 218. Wiggins Ferry Co. v. East St. Louis, 
 
 2 Cooley, Const. Lim. (6th ed.), 102 III. 660. Conf. Kerby v. Lewis, 
 p. 731 ; Adams v. Ulmer, 39 AtL Rep. 6 Upp. Can. Q. B. (O. S.) 207 ; Begina 
 347; Challiss v. Davis, 66 Mo. 26; v. Davenport, 16 Upp. Can. Q. B. 
 People V. Babcook, 11 Wend. 586; 411; City of Madison v. Abbott, 118 
 TugweU V. Eagle Pass Ferry Co., 74 Ind. 337. 
 
PILOTAGE, POET EEGULATIONS, ETO. 159 
 
 under circumstances so different that it has always been con- 
 sidered as properly subject to State jurisdiction to a consid- 
 erable extent.^ 
 
 Under the early doctrines it seems to have been considered 
 that the subject was not within the Federal jurisdiction,^ 
 but should be controlled by the States alone under their po- 
 lice power, even as concerned transportation over streams 
 which formed the boundaries between States; and in the ex- 
 ercise of this authority the States discriminated in favor of 
 their own citizens,' regulated charges for interstate trans- 
 portation,^ and in many other ways exercised a greater con 
 trol than over transportation of a more general nature. 
 
 The right of ferriage which a State grants upon a bound- 
 ary stream, it is said, is in respect of the landing and not of 
 the water.' The right of navigation does not authorize ap- 
 propriation of the banks of the river, or the receipt of tolls 
 for transporttag passengers across it.* The franchise granted 
 by a single State to conduct a ferry may be less valuable 
 for want of landing on the other side of the water, but it is 
 a valid franchise nevertheless.' The right of ferriage, being 
 within the power of a State to grant or withhold, may be 
 given as an exclusive right to a single individual, and there 
 are many cases of exclusive grants of ferry privileges over 
 streams which formed boundaries between States and upon 
 public navigable waters.* 
 
 'City of Madison v. Abbott, 118 Black, 603; Weld v. Chapman, 3 
 
 Ind. 337. Iowa, 534 
 
 2 United States V.James Morrison, ^MiUs v. Coimty of St. Claire, 3 
 
 Newb. 341; United States v. WiU- GiL 197. 
 
 lam Pope, Newb. 365. ' Columbia Delaware Bridge Co. 
 
 'Conway v. Taylor's Executor, 1 v. Geisse, 9 Vroom, 39; Conway v. 
 
 Blaci, 603; Fanning v. Gregoire, 16 Taylor's Executor, 1 Black, 603. 
 
 How. 534; City of Newport v. Tay- 8 Conway v. Taylor's Executor, 1 
 
 lor's Executors, 16 B. Mon. 699. Black, 603; City of Newport v. Tay- 
 
 * State V. Freeholders of Hudson lor's Executors, 16 B. Mon. 699 ; Fan- 
 County, 33 N. J. L. 306; Freeholders ning v. Gregoire, 16 How. 534; Mar- 
 of Hudson County v. State, 34 N. J, shall v. Grimes, 41 Miss. 37; United 
 L. 718. States ex reL Jones v. Fanning, 1 
 
 6 Conway v. Taylor's Executor, 1 Morris (Iowa), 348 ; Phillips v. Town 
 
160 PILOTAGE, POET EEGITLATIONS, ETC. 
 
 Where two States granted different persons exclusive 
 rights of ferriage at the same place, interesting questions 
 have arisen. In Conwanj v. Tanjlor's Executor ^ the defendant 
 in error claimed the exclusive right of ferriage across the 
 Ohio river, opposite the city of Newport, by virtue of a grant 
 from the State of Kentucky. The plaintiff in error was 
 master of a vessel enrolled under the United States laws for 
 the coasting trade, and having a ferry license under the laws 
 of Ohio. It was held by the Supreme Court of Kentucky 
 that, under these circumstances, the vessel navigating under 
 the Ohio laws was authorized to land in Kentucky and to 
 discharge passengers and freight, but that it had no author- 
 ity to receive passengers and freight on the Kentucky side, 
 or to do any business from that shore. This decision was 
 upheld by the Supreme Court of the United States. " The 
 franchise of ferriage," Mr. Justice Swayne said, " was con- 
 fined to transit from the shore of the State. The same rights 
 which Kentucky claimed, it also conceded to Ohio. The 
 exclusive franchise granted to the defendants in error, threw 
 no obstacle in the way of transit from the States lying upon 
 the other side of the Ohio Eiver, for that was regulated 
 solely by their laws. Undoubtedly, the States might in con- 
 ferring ferry franchises, so infringe the commercial power 
 of the nation that it would be the duty of the court to set 
 them aside, but in the case at bar the regulation was not 
 considered as of that character." * 
 
 "With the progress of constitutional construction, however, 
 the important relation which ferries and bridges bear to ia- 
 
 of Bloomington, 1 Greene (Iowa), 39; St. Louis v. Waterloo, etc. Ferry 
 
 498; Burlington, etc. Ferry Co. v. Co., 14 Mo. App. 216; Challiss v. 
 
 Davis, 48 Iowa, 133; Mayor, etc. of Davis, 56 Mo. 25; Nixon v. Eeid, 8 
 
 New York v. Independent Steam- S. Dak. 507; Carroll v. Campbell, 110 
 
 boat Co., 106 N. Y. 1, 28; Midland Ma 557; S. C, 108 Mo. 550. 
 
 Terminal & Ferry Co. v. Wilson, 1 1 1 Black, 603. See Newport v. 
 
 Stew. (28 N. J. Eq.) 587; Chilvers v. Taylor's Executors, 16 B. Mon. 699. 
 
 People, 11 Mich. 43; People v. Bab- i^See CbalUss v. Davis, 56 Mo. 25; 
 
 cock, 11 Wend. 687; Columbia Dela- Weld v. Chapman, 2 Iowa, 534. 
 ware Bridge Co. v. Geisse, 9 Vroom, 
 
161 
 
 terstate transportation is recognized. "If . . interstate 
 commerce means simply commerce between the States, it 
 must apply to aU commerce which crosses the State lines, 
 regardless of the distance from which it comes, or to which 
 it is bound before or after crossing such State line. In other 
 words, if it be commerce to send goods from Cincinnati in 
 Ohio, to Lexington in Kentucky, it is equally such to send 
 goods or to travel ia person from Cincinnati to Covington." * 
 The act of leaving or of taking passengers and freight out 
 of a State is as much a part of interstate commerce as the 
 act of entering and discharging, and the one as much as the 
 other is beyond the power of the States to regulate or pro- 
 hibit.^ The distinction which it was sought to make between 
 the act of entering and the act of leaving has therefore been 
 abandoned.' Ferriage across State lines, like all other in- 
 terstate transportation, is within the protection of the Con- 
 stitution. It does not depend alone upon the pleasure of the 
 States, but may be authorized by Congress, notwithstanding 
 the objection of the State.* 
 
 Highways. — The States have power to construct and main- 
 tain highways, to regulate their use, and to coUeot compen- 
 sation for the facilities provided by keeping them in repair 
 for the use of vehicles.* In most cases these powers have 
 been exercised through corporations authorized to construct 
 highways and to charge for their use. 
 
 1 Covington, etc. Bridge Co. v. < Texas, etc. Ey. Co. v. Baton 
 Kentucky, 154 U. S. 204. Eouge, 36 Fed. Kep. 845. 
 
 2 Gloucester Ferry Co. v.Pennsyl- *Bogart v. Ohio, Ct Com. PL 
 vania, 114 U. S. 196. Hamilton Co., 3 Int. Com. Eep. 297. 
 
 3 Gloucester Ferry Co. v. Pennsyt 
 vania, 114 U. S. 196, aiL 
 
 11 
 
OHAPTEK YI. 
 
 REGULATION OF CAERIEES. 
 
 It has been found difficult to determine the municipal law 
 which is the source of many of the rights and duties of an in- 
 terstate carrier. "Within this field of doubtful jurisdiction is 
 the duty to receive goods or passengers for transportation to 
 other States, to exercise care in carriage, to deliver freight 
 to the consignee, and the right to demand reasonable com- 
 pensation. These and many other subjects are of more than 
 local importance, and are to a very limited extent the sub- 
 ject of Federal legislation. Where, then, is the law found by 
 which these rights and duties are measured and determined ? 
 
 Extent of Positive Federal Law. — Legislation by Congress 
 on the subject of commerce covers but a small part of this 
 large field. "With reference to navigation the maritime law 
 supplements the statutes, but outside its particular province 
 the common or civil law must be applied as part of the 
 Federal jurisprudence, or the conclusion is inevitable that, in 
 many matters of national importance, interstate and foreign 
 commerce is without the protection or control of any Federal 
 law. In one case, to avoid this conclusion, it was held that 
 there is a Federal common law, and it was said that this law 
 would sustain an action for discrimination and excessive 
 charges for interstate transportation before the Interstate 
 Commerce Act of February 4, 1887.^ The weight of author- 
 ity, however, supports the proposition that there is no Federal 
 common law." 
 
 1 Murray v. Chicago, etc. R. Co., U. S. 133; Swift v. Philadelphia, etc 
 63 Fed. Rep. 34 See KiimaTey v. R. Co., 58 Fed. Rep. 868, 64 Fed, 
 Terminal Ry. Co., 81 Fed. Rep. 803. Rep. 59; Gatton v. Railway Co., 95 
 
 2 Smith V. Alabama, 134 U. S. 465 ; Iowa, 113. 
 Chicago, etc. R. Co. v. Solan, 169 
 
EEGULATIOK OF 0ABEIEK8. 163 
 
 Extent of State Jurisdiction. — The general rule is well 
 established, that, in the absence of congressional legislation, 
 the States may regulate local matters indirectly affecting 
 commerce, but that they may not act directly upon com- 
 merce in matters of national interest or which admit of uni- 
 form regulation. In these respects the silence of Congress 
 is equivalent to a declaration of its wiU that commerce shall 
 be free and unrestricted. 
 
 It has been sought to solve the problem by regarding 
 State law controlling the rights and duties of carriers as local 
 regulations governing domestic contracts. A carrier doing 
 busiuess within a State, it is said, may be required by the 
 State to enter into contracts for carriage, and the law of the 
 place would in many respects enter into these contracts as 
 into aU others made within its territory, as implied agree- 
 ments. Upon this theory State jurisdiction would cease 
 when the contract was made, and thereafter the rights and 
 duties of the parties would be determiued by the contract 
 alone. The State law would not operate directly upon com- 
 merce in matters of a national character, but the same 
 result would be attained through State regulation of the 
 contract. 
 
 Applying this doctrine, it has been held that, where a con- 
 tract for interstate shipment specifies the rates to be paid, 
 an action cannot be maintained upon the State common 
 law to recover the excess of such charge above a reasonable 
 amount,' or for discrimination ; ^ but that where the rate is 
 not specified, the State law implies an agreement to pay a 
 reasonable sum.' 
 
 This theory is probably not in accord with the decisions of 
 the Supreme Court which define the limits of those local 
 
 1 Swift V. Philadelphia, etc, R. R Atchison, etc. E. Co., 15 Fed. Eep. 
 Co., 58 Fed. Eep. 858. 650; McGwigan v. Eailway Co., 95 
 
 2 Gatton T. Chicago, E. L & P. E. N. C. 438. Conf . Gxdf, etc. E. Co. t. 
 R. Co., 95 Iowa, 112; Wright v, BaiTy (Tex. Civ. App.), 45 S. W. Eep. 
 Howe, 34 8. W. Eep. 314 ; McLean v. 814 
 
 Charlotte, etc. E. E. Co., 96 N. C. 1; ' Swift v. Philadelphia, etc. R E. 
 Cowden v. Pacific Coast S. S. Ca, Co., 64 Fed. Eep. 59. 
 94 CaL 470; Denver, etc. E. Co, v. 
 
164 EEGULATION OF CAEEIEES. 
 
 regulations wliicli are within. State jurisdiction. Eights and 
 duties are not local which do not terminate at State Unes, 
 but foUow the carrier into other jurisdictions until perform- 
 ance of the contract is complete. 
 
 The Solution of the Problem. — Amid these apparent con- 
 tradictions the one established fact is that the field in ques- 
 tion is actually governed by State law. The conclusion 
 necessarily follows, that the rule of construction which pre- 
 vents State regulation of interstate and foreign commerce 
 in matters of national importance is not as absolute and 
 extensive as it has been announced, but that it is subject to 
 very important modification. The silence of Congress does 
 not always exclude State regulation, but throughout a wide 
 field is equivalent to a declaration that, until superseded by 
 Congress, State law may control. 
 
 " This power of regulation," the Supreme Court has said, 
 "may be exercised without legislation as well as with it. 
 By refraining from action Congress, in effect, adopts as its 
 own regulations those which the common law or the civil 
 law, where that prevails, has provided for the government 
 of such business, and those which the States, in the regular 
 tion of their domestic concerns, have established affecting 
 commerce, but not regulating it within the meaning of the 
 Constitution. In fact, congressional legislation is only neces- 
 sary to cure defects in existing laws, as they are discovered, 
 and to adapt such laws to new developments of trade." ^ 
 
 In Smith v. Aldbwma ^ the subject was further considered 
 by the Supreme Court, and it was held that State laws, regu- 
 lating relative rights and duties of persons within the juris- 
 diction of the State, are effective upon interstate carriers.' 
 
 " This general system of law, subject to be modified by 
 state legislation, whether consisting in that customary law 
 which prevails as the common law of the land in each state, 
 
 1 Hall V. DeCuir, 95 U.S. 485,490. Co. v. Phenix Insurance Co., 129 
 2 134 U. S. 465. U. S. 397, 439; Davis v. Chicago Ry. 
 
 ' See also Liverpool, etc. Steam Co., 93 Wis. 470. 
 
EEGITLATION OF CAEEIEES. 165 
 
 or as^a code of positive provisions expressly enacted, is never- 
 theless the law of the State in which it is administered, and 
 derives all its force and effect from the actual or presmned 
 exercise of its legislative power. It does not emanate from 
 the authority of the national government, nor flow from the 
 exercise of any legislative powers conferred upon Congress 
 by the Constitution of the United States, nor can it be im- 
 plied as existing by force of any other legislative authority 
 than that of the several states in which it is enforced. It 
 has never been doubted but that this entire body and system 
 of law, regulating in general the relative rights and duties 
 of persons within the territorial jurisdiction of the State, with- 
 out regard to their pursuits, is subject to change at the wiU of 
 the legislature of each State, except as that will may be re- 
 strained by the Constitution of the United States. It is to 
 this law that persons within the scope of its operation look 
 for the definition of their rights and for the redress of wrongs 
 committed upon them. It is the source of aU those relative 
 obligations and duties enforceable by law, the observance of 
 which the State undertakes to enforce as its public policy. 
 And it was in contemplation of the continued existence of 
 this separate system of law in each state that the Constitu- 
 tion of the United States was framed and ordained with such 
 legislative powers as are thareiu granted expressly or by 
 reasonable implication. . . . But for the provisions on 
 the subject found in the local law of each State, there would 
 be no legal obligation on the part of the carrier, whether 
 ex eonfroGtu or ex deUcto, to those who employ him ; or if 
 the local law is held not to apply where the carrier is en- 
 gaged in foreign or interstate commerce, then, in the absence 
 of laws passed by Congress or presumed to be adopted by 
 it, there can be no rule of decision based upon rights and 
 duties supposed to grow out of the relation of such carriers 
 to the public or to individuals. In other words, if the law 
 of the particular State does not govern that relation, and 
 prescribe the rights and duties which it implies, then there 
 is and can be no law that does until Congress expressly sup- 
 
166 EEGULATION OF CAEEIEES. 
 
 plies it, or is held by implication to have supplied it, in cases 
 within its jurisdiction over foreign and interstate commerce. 
 The failure of Congress to legislate can be construed only as 
 an intention not to disturb what already exists, and is the 
 mode by which it adopts, for cases within the scope of its 
 power, the rule of the state law, which untO. displaced cov- 
 ers the subject." 
 
 The Duty to Beceive, Carry and DeU/ver. — It is the State 
 law which in most part defines the obligation of common 
 carriers, imposes the duty to accept goods or passengers for 
 transportation, and gives the carrier the right to demand rea- 
 sonable compensation therefor.^ 
 
 The Federal statutes recognize these rights in the case of 
 railways,^ but even without this authority the carrier has 
 these rights under State law. Under the rule of the Federal 
 courts, receipt of merchandise for transportation establishes 
 an implied contract between the carrier and shipper for safe 
 carriage over its own line and delivery to the consignee, or 
 to the next carrier beyond, within a reasonable time.' The 
 undertaking to transport goods necessarily includes the duty 
 to deliver them to the person designated by the terms of the 
 shipment, or to his order at the place of destination. There 
 are no conditions which wiU release the carrier from this 
 duty, except such as would also release him from the safe car- 
 riage of goods, and no obligation is more strictly enforced.^ 
 
 1 Eae V. Grand Trunk Ey. Co., 14 s Myriok v. Railway Co., 107 U. S. 
 
 Fed. Eep. 401; Iowa v. Chicago, etc. 102; Insurance Co. v. Eailroad Co., 
 
 Ey. Co., 33 Fed. Eep. 391; Connell 104 TJ. S. 146; Eailroad Co. v. Manu- 
 
 V. Telegraph Co., 108 Mo. 459; Chi- facturing Co., 16 WaU. 318; Dem- 
 
 cago, etc. Ey. Co. v. Woloott, 141 iug v. Norfolk & Western E. R Co., 
 
 Ind. 367; Eailroad Co. v. Osborne, 21 Fed. Eep. 25; Empire Co. v. Wal- 
 
 53 Fed. Eep. 913; Kemp v. Tele- lace, 18 P. F. Smith, 303; Kemp v. 
 
 graph Co., 38 Neb. 661; Telegraph Telegraph Co., 38 Neb. 661. 
 
 Co. T. Powell, 94 Va. 368. * North Pemisylvania E. E. Co. v. 
 
 2U. S. Eev. Stat., tit. LXIV, sec. Commercial Bank, 128 U. S. 737; 
 
 5358; Act to regulate commerce, Covington Stock Yards v. Keith, 
 
 March 4, 1887, and amendments, see 189 U. S. 138, 135; Forbes v. Boston 
 
 post. & Lowell E. Co., 133 Mass. 154 
 
EEGTJLATION OF OAEEIEES. 167 
 
 The Contract of Carriage. — In the absence of Federal leg- 
 islation, the validity and effect of the contract between a 
 shipper and carrier for transportation from one State to an- 
 other is determined by State law, and in most cases this is 
 the law of the State in which the contract is made and where 
 transportation begins.^ Thus, the validity of a stipulation in 
 a bill of lading, limiting the carrier's liability, depends upon 
 the law of the State of contract. The carrier's contract does 
 not vary with each jurisdiction in which it may be partly 
 performed, for the service rendered is single, the transpor- 
 tation performed and the liability assumed being the measure, 
 on one side, by which the compensation to be paid on the 
 other side is determined.^ 
 
 State Acts Enforcing or Modifying the Common Law. — 
 In some instances it has been held that State laws prohibit- 
 ing the limitation of liability by a carrier do not relate to 
 interstate transportation.' The balance of authority, how- 
 ever, indicates that the validity of such a provision is usually 
 determined by the law of the place of contract. Where by 
 that law the stipulation limiting liability is valid, the con- 
 tract will ordinarily be upheld,^ even in another State where 
 such a stipulation is not permitted.* And, on the other hand, 
 where by the law of the place of contract a stipulation is 
 prohibited, it affects the performance of the contract in other 
 States.* 
 
 1 Brookway v. American Express tional Ins. Co., 84 Tex. 125; Otis Co. 
 Co., 168 Mass. 357; Brockway v. v. Missouri Pacific Co., 112 Mo. 623. 
 American Express Co. (Mass., 1898), * Hart v. Railway Co., 69 Iowa, 
 50 N. E. Rep. 636; Myrick v. Rail- 485. 
 
 road Co., 107 U. S. 103, 109. 5 Thomas v. Wabash Ry. Co., 63 
 
 2 Liverpool, etc. Steam Co. v. Phe- Fed. Rep. 200; Hazel r. Railsvay Co., 
 nix Ins. Co., 129 U. S. 457 ; The Henry 83 Iowa, 477. Conf . Telegraph Co. 
 B. Hyde, 82 Fed, Rep. 681 ; Ohio, etc. v. Eubank (Ky.), 38 S. W. Rep. 1068 ; 
 Ry. Co. V. Tabor, 98 Ky. 503; Mo- Chicago, etc. R. Co. v. Gardiner, 51 
 Danielv. Railway Co., 24 Iowa, 412; Neb. 70; Telegraph Co. v. Burgess 
 Meuer v. Chicago, M. & St. P. Ry. (Tex. Civ. App.), 48 S. "W. Rep. 1033; 
 Co. (S. D.), 75 N. W. Rep. 823. North Packing, etc. Co. v. Western 
 
 SRailroad Co. v. Sherwood, 84 Tex. Union Tel. Co., 70 IlL App. 275. 
 135; Wright v. Howe, 24 S. W. Rep. " Brookway v. American Express 
 314; Missouri, etc. R. Co. v. Interna- Co., 168 Mass. 257; Davis v. Rail- 
 
168 EEQULATION OF OAEEIEES. 
 
 " The question of the right of a railroad corporation to 
 contract for exemption from liability for its own negligence 
 is, indeed, like other questions affecting its liability as a 
 common carrier of goods or passengers, one of those ques- 
 tions not of merely local law, but of commercial law or 
 general jurisprudence, upon which this court, in the absence 
 of express statute regulating the subject, will exercise its 
 own judgment, uncontrolled by the decisions of the courts 
 of the State in which the cause of action arises. Eut the 
 law to be applied is none the less the law of the State ; and 
 may be changed by its legislature, except so far as restrained 
 by the constitution of the State or by the Constitution or 
 laws of the United States." ' A State may prevent a carrier 
 from stipulating not to be answerable for its own negli- 
 gence,^ or where its contract extends beyond its terminus 
 for that of connecting liaes ; ' but where it contracts only for 
 transportation upon its own line, it is probable that a State 
 law preventing similar limitation upon its responsibility, as 
 applied to interstate carriers, would be invalid as a regula- 
 tion of interstate commerce.* 
 
 The same rule sustains statutes invalidating stipulations by 
 which carriers seek to establish conditions precedent to suit, 
 as by requiring notice or limiting the time within which an 
 action may be brought upon their contracts.' 
 
 A State may also forbid the sale of railway tickets by per- 
 
 way Co., 93 Wis. 470; Liverpool, E. Co., 79 Fed. Eep. 561; Meuerv. 
 
 etc. Steam Co. v. Insurance Co., 139 Chicago, M. & St. P. Ry. Co. (S. D.), 
 
 IT. S. 397; Fonseca v. Steamship 75 N. "W. Eep. 833. 
 
 Co., 153 Mass. 553 ; Fairchild v. Eail- 3 McCann v. Eddy, 133 Ma 59. 
 
 way Co., 148 Pa. St. 537; St. Joseph, <Eichmondi etc. R R Co. v. Pat- 
 
 etc. Ey. Co. v. Pabner, 38 Neb. 463. terson Tobacco Co., 169 U. S. 311, 
 
 See Solan v. C, M. & St. P. Ey. Co., 93 Va. 670; McCann v. Eddy, 133 
 
 95 Iowa, 260. Mo. 59; Texas, etc. E. Ca v. Adams, 
 
 1 C, M. & St. P. Ry. Co. V. Solan, 78 Tex. 373. 
 
 169 U. S. 133. See Houston, etc. R. ' Armstrong v. Galveston, H. & 
 Co. V. Davis, 11 Tex. Civ. App. 34; S. A. Ry. Co., 5 Int. Com. Eep. 347; 
 Houston, etc. Ry. Co. v. Williams, Armstrong v. Galveston, H. & S. A. 
 31 S. W. Eep. 556. Ey. Co., 46 S. W. Eep. 38, reversing 
 
 2 Eail way Co. v. Lockwood, 17 s. C, 43 S. W. Eep. 614; Eeeves v. 
 WalL357;Voight V.Baltimore, etc. Texas & P. Ey. Co., 11 Tex. Civ. 
 
REGULATION OI* CAEEIEES. 16& 
 
 sons witliout written authority from the railway company,' 
 but may not, by regulations of the contract, indirectly regu- 
 late interstate commerce.' 
 
 A carrier operating within a particular State is answer- 
 able to the laws of that State for acts of nonfeasance or mis- 
 feasance committed within its limits. " If he fail to deliver 
 goods to the proper consignee at the right time or place, he 
 is liable in an action for damages under the laws of the State 
 in its courts ; or if by negligence in transportation he inflicts 
 injury upon a person or passenger brought from another 
 state," ' or fails in his duty to preserve order upon his vehi- 
 cles,* a right of action for the consequent damage is given 
 by the local law. It is the law of the State which declares 
 that the common carrier owes the duty of care, which fixes 
 the rules according to which, under varying conditions, his 
 conduct should be measured and judged, and what shall 
 constitute that negligence for which he shall be responsible. 
 
 Bight of Action for Personal Injuries. — In the absence 
 of Federal legislation the States may give a right of action 
 for death caused upon a vessel engaged in interstate or for- 
 eign commerce, where the accident happens within the bound- 
 ary of the State,^ but it has no such power where the death 
 is caused upon the high seas beyond, although the home 
 port of the vessel may be within its limits.^ 
 
 App. 514; Missouri, K & T. Ry. Co. ^Post, p. 183. 
 
 V. Withers, 40 S. W. Rep. 1073; Gal- 3 Smith v. Alabama, 124 U. S. 465, 
 
 veston, H. & S. A. R. Co. v. Herring 476. 
 
 (Tex. Civ. App.), 36 S. W. Rep. 129; ^ Heard v. Georgia R Co., 3 Int. 
 
 Ohio, etc. Ry. Co. v. Tabor, 98 Ky. Com. Rep. 508. 
 
 508; Gulf, etc. R. Co. v. Eddins, 7 s Sherlock v. Ailing, 98 U. S. 99; 
 
 Tex. Civ. App. 116; Galveston, etc. Bradley, Adm'r, v. Northern Trans- 
 
 R. Co. V. Johnson (Tex Civ. App.), portation Co., 15 Ohio St. 553; Bige- 
 
 29 8. W. Rep. 428; "Western Union low v. Nickerson, 70 Fed. Rep. 113; 
 
 TeL Co. V. Burgess (Tex. Civ. App.), In re Humboldt Lumber Manufact- 
 
 43 S.W. Rep. 1033; Burgess V. West- urers' Ass'n, 60 Fed. Rep. 428, 73 
 
 em Union Tel. Co. (Tex.), 46 S. W. Fed. Rep. 239; The Manhasset, 18 
 
 Eep. 794. Fed. Rep. 918. Conf. Butler v. Bos- 
 
 1 State V. Corbett, 57 Minn. 345; ton Steamship Co., 130 U. S. 527. 
 
 Fry V. State, 63 Ind. 552; Common- « The E. B, Ward, Jr., 16 Fed. Rep. 
 
 wealth V. Wilson, 14 Phila. 384. 255. 
 
170 EEGULATIOlir OF CAEEIEES. 
 
 The State statute of limitations upon such action attaches 
 to the liability itself, is not a part of the remedy, and may 
 be enforced in a Federal court,^ or in admiralty, where the 
 injury occurs upon navigable waters.^ A State act mod- 
 ifying the fellow-servant rule in actions by employees against 
 railroad companies for personal injury is valid as applied to 
 railroads engaged ia interstate transportation.' 
 
 Actions for Damages for Fi/re. — A railroad company oper- 
 ating within a State is subject to its police regulations con- 
 cerning the communication of fire from locomotives,* and 
 such regulations may determine the rules of evidence by 
 which the communication of fire may be proved or & prima 
 faoie case made, or may make the railroad liable for fire 
 communicated from its locomotives, irrespective of any ques- 
 tion of negligence upon its part.* 
 
 Actions for Importation of Infected Cattle. — Cattle brought 
 during the spring, summer and early fall from portions of 
 the South often communicate to Northern cattle a disease 
 known as Texas or splenic fever, and for this reason many 
 States have excluded Southern cattle from their territory 
 during the period of the year when the disease is conta- 
 gious, except when transported through the State by railway 
 or steamboat, and have made persons who brought Texas 
 cattle into the State responsible for damage which might 
 result from their communication of Texas fever to domestic 
 cattle. These laws were upheld in Missouri," and also in Illi- 
 
 iTheHarrisburg, 119U. S. 199. Maine Ey. Co., 63 N. H. 35; Mo- 
 
 2 In re Petition of Humboldt Candless v. Richmond & Danville 
 Lumber Manufacturers' Ass'n, 60 Ey. Co., 38 S. C. 103; Hunter v. Co- 
 Fed, Eep. 428. lumbia, etc. E. Co., 41 S. C. 86; Lip- 
 
 sPeirce v. Van Dusen, 78 Fed. feld v. Charlotte, etc. E. Co., 41 
 
 Eep. 693. S. C. 285; Mobile Ins. Co. v. Colum- 
 
 * Von Steuben v. Central Ey. Co., bia, etc. E. Co., 41 S. C. 408. 
 
 4 Penn. Dis. Eep. 153. ^ Husen v. Hannibal, etc. E. E 
 
 5 St. Louis, etc. E. Co. v. Mathews, Co., 60 Mo. 326; "Wilson v. Kansas 
 
 165 U. S. 1; Smith v. Boston & City, etc. E. E. Co., 60 Mo. 184 
 
BEGULATION OF CAEKIEES. 171 
 
 nois, wtere a similar statute was in lorce.^ The Supreme 
 Court of the United States, in BaMroad Co. v. Husen, adopted 
 a different view. The action was brought upon the statute 
 to recover damages for the communication of disease to 
 plaintiff's cattle by Southern cattle which had been brought 
 into the State by the defendant. The Supreme Court did 
 not, however, limit its examination to the portion of the stat- 
 ute upon which the case arose, but, taking the statute as a 
 whole, found that its object was to obstruct interstate com- 
 merce, and to discriminate against the property or citizens of 
 other States. It forbade the transportation of Southern 
 cattle into Missouri between the 1st of March and the 1st 
 of JSTovember in each year, whether the cattle were diseased 
 or not, and made carriers transporting them into or through 
 the State responsible for damages resulting from Texas fever 
 communicated by such cattle. These restrictions, the court 
 said, extended beyond the danger to be apprehended, and 
 could not be justified by the necessities of self-defense. The 
 act as a whole was therefore unconstitutional, and a railway 
 company which transported Southern cattle into the State 
 of Missouri was not thereby made responsible for damages 
 which might result from their communication of disease.^ 
 
 Following this decision, it was held that to recover in such 
 cases it was necessary to establish negligence on the part of 
 the defendant, and to do this it was not sufficient to show 
 knowledge on his part that the cattle in his possession had 
 come from infected districts of the South, but it was neces- 
 sary to show knowledge that the cattle were in fact dis- 
 eased.' 
 
 It was soon found, however, that this rule did not meet 
 the necessities of the situation. It is now generally admitted 
 that all cattle brought during the spring and summer months 
 from the low lands of the South are liable to communicate 
 
 1 Yeazel v. Alexander, 58 HI 354; 2 Railroad Co. v. Husen, 95 U. S. 
 
 Somerville v. Marks, 58 III. 371; 465; Salzenstein v. Mavis, 91 111, 
 
 Stevens v. Brown, 58 IlL 389; Chi- 391; Jarvis v. Eiggin, 94 111. 164 
 
 cago, etc. E. Co. v. Gasaway, 71 s Bradford v. Floyd, 80 Mo. 307; 
 
 lU. 570. Railway Co. v. Finley, 38 Kan. 550. 
 
172 EEGrLATIOH OF OAKBIEES. 
 
 Texas fever, and that such, cold weather as is usual in the 
 winter, north of the southern boundary of Missouri and 
 Kansas, destroys the virus of the disease and removes the 
 danger of infection. 
 
 For this reason a statute was passed in Kansas which cre- 
 ated a prima faoie presumption that cattle brought from 
 infected districts during certain periods of the year were dis- 
 eased, and that the owner or person bringing them into the 
 State, or having them in possession, was affected with knowl- 
 edge of their condition.^ 
 
 In 1888, when the subject again came under considera- 
 tion in Kmrndsh v. Ball^ the Supreme Court took judicial 
 notice of the existing situation, and sustained a statute of 
 Iowa which made persons who permitted Southern cattle to 
 run at large within the State during the warm season lia- 
 ble for resulting damage. The statute involved in this case, 
 as in the Husen case, excluded all Southern cattle from the 
 State for a large part of the year ; but in the interval since 
 the earlier decision, the nature of the trouble and the extent 
 of the threatening danger had become more widely known. 
 The court said no attempt was made ia the Husen case to 
 show that aU cattle from the malarial districts of the South 
 were infected, or that so many were infected as to make 
 a separation impossible. Had such proof been given, a differ- 
 ent question would have been presented. Without passing 
 upon the clause which forbade the introduction of Southern 
 cattle into the State during certain periods of the year, — a 
 clause upon whose validity the court intended to throw no 
 doubt, — the provision upon which the action was brought 
 was sustained. 
 
 In Grvmes v. Eddnj ' the Supreme Court of Missouri held 
 that a State could authorize the recovery of damages on 
 account of disease communicated from Texas cattle negli- 
 gently permitted to run at large while being transported 
 
 iPatee v. Adams, 37 Kan. 133; aiggxj. s. 317, 
 Rouse V. Youard, 1 Kan. App. 270. « 126 Mo. 168. 
 
EEGTJIATION OF CAEEIEKS. 173 
 
 through, the State; while it could not forbid such trans- 
 portation, it could provide regulations to prevent the spread 
 of disease. 
 
 The discussion in this case, however, went beyond the 
 point decided, and indicates a re-estabUshment in that court 
 of the law as it existed before the decision of the United 
 States Supreme Court in the Husen case. 
 
 The right of action given is for negUgenoe.^ A carrier 
 or other person knowingly bringing infected cattle into the 
 State, and permitting them to run at large and communicate 
 disease to native cattle, would be responsible at common 
 law for resulting injury. Under existing circumstances it is 
 possible for a State to provide that, in actions to recover 
 damages for communication of Texas fever, proof that the 
 cattle which are claimed to have communicated disease were 
 brought from south of the thirty-seventh parallel of latitude 
 shaU be taken as^prvmafade evidence that they were, during 
 the warm period of the year, capable of communicating fever, 
 and that the person in charge of them had knowledge of this 
 fact. Such a statute establishes no new liability, but alters 
 the proof by which liability may be shown. It may be 
 doubted whether a statute which went further than this, and 
 attempted to impose a liability where the defendant had no 
 knowledge or means of knowledge that the cattle in his 
 possession were capable of communicating disease, would be 
 constitutional. Upon this subject the Supreme Court of the 
 United States in the Haber case refuse to express an opinion. 
 
 It has sometimes been urged that compliance with the Ani- 
 mal Industry Act ^ and with the regulations of the Secretary 
 of Agriculture would furnish a complete defense for claims 
 for damages of this character. The subject was considered in 
 Missouri, etc. B. R. Go. v. Hoib&r^ and it was held that the 
 purpose of the Federal government in making these regula- 
 
 ' Grimes v. Eddy, 136 Mo. 168; "^ Post, -p. 175. 
 Rouse V. Yoiiard, 1 Kan. App. 270; '169 TJ. S. 613, 56 Kan. 694 
 Selvege v. St. Louis, etc. Ey. Co., 
 135 Mo. 163. 
 
174 EEGXTLATION OF CAEEIEES. 
 
 tions "was to prevent the spread of disease from one State to 
 another, not to deprive any person of the right to recover 
 damages for injury inflicted on his cattle through contact 
 with diseased cattle. The carrier transporting into a State 
 cattle capable of communicating disease does so, therefore, 
 subject to such liability as may arise under any law of the 
 State which does not unnecessarily burden or prohibit inter- 
 state commerce. 
 
 Regulation of Interstate Transportation. — The Civil 
 Eights Laws of the States are inapplicable to interstate trans- 
 portation,^ and under some circumstances such statutes may 
 not apply to interstate carriers, even in the case of transpor- 
 tation performed within a single State. 
 
 Thus, in Sail v. Be CvJvr it was held that a State could not 
 require interstate carriers to give to domestic passengers 
 equal rights in all parts of the conveyance. There is no 
 doubt that such a statute may operate upon that transporta- 
 tion which begins and ends within a State ; ^ but it cannot 
 compel interstate passengers in any portion of their journey 
 to share their accommodations with passengers of another 
 race.' 
 
 In Texas it was assumed that such statutes would apply 
 to that part of an interstate journey performed within the 
 State,^ but this assumption is contrary to the current of au- 
 thority.' 
 
 Upon the same principle it has been held that a State can- 
 not prohibit interstate transportation of liquors at night by 
 other than regular passengers, or freight steamers, or railroad 
 
 1 Brown v. Memphis, etc. Ey. Co., versing De Cuir v. Benson, 27 La. 
 5 Fed. Rep. 499; Carrey v. Spencer, Ann. 1. 
 
 36 N. Y. Supp. 886, 73 N. Y. St. Bep. < Pullman's Car Co. v. Cain (Tes, 
 
 108; State ex reL Abbott v. Hicks, Civ. App.), 40 S. W. Rep. 230. 
 
 44 La. Ann. 770; Anderson v. L. & ' Louisville, etc. Ry. Co. v. Missis- 
 
 N. Ry. Co., 62 Fed. Bep. 46. sippi, 133 U. S. 587; LouisviUe, etc. 
 
 2 Plessy V. Ferguson, 163 U. S. 587. By. Co. v. State, 66 Miss. 663. 
 8 HaU V. De Cuir, 95 U. S. 485, re- 
 
EEGTJLATION OF CAEEIEES. ITS) 
 
 cars,' nor require railroad companies to fumisli douMe-deck 
 cars for the interstate transportation of cattle.^ 
 
 Transportation of Animals. — Transportation of animals 
 is the subject of several Federal statutes.* The transporta- 
 tion of live-stock affected with contagious diseases from State 
 to State, or from or to a foreign country, is prohibited.* The 
 Secretary of Agriculture is required to cause inspection of 
 all cattle intended, or whose meat is intended, for exporta- 
 tion. Cattle, sheep and hogs which are to be carried from 
 one State to another, and whose meat is to be transported 
 and sold for human consumption in any State or Territory, 
 are also to be inspected under the direction of the Secretary 
 of Agriculture. 
 
 The Secretary is authorized to examine vessels carrying 
 cattle from the United States to foreign countries and to 
 prescribe accommodations which vessels shall give as to 
 space, ventilation, fittings, food and water supply, and make 
 such other requirements as he may decide necessary for the 
 safe and proper transportation and humane treatment of 
 such animals.' 
 
 Exportation of cattle, sheep and swine which are diseased 
 or infected, or which have been exposed to infection within 
 sixty days before exportation, is prohibited. The Secretary 
 of Agriculture is authorized, at the expense of the owner, to 
 quarantine imported animals and to slaughter such as are 
 infected or have been exposed to infection.* 
 
 The statutes ^ also provide that no railroad company or 
 
 1 Jervey v. The Carolina, 66 Fed. » Act of March 3, 1891, 26 Stat. L. 
 Kep. 1013. 833, Supp. R. S. 908. 
 
 2 Stanley v. Wabash, etc. Ey. Co., « Act of August 30, 1890, 26 Stat. 
 100 Mo. 435. L. 414, Supp. R S. 794 
 
 3 Act of March 3, 1891, 26 Stat. L. ' Act of March 3, 1873, U. S. Rev. 
 1089, Supp. E. S., p. 937. See post, Stat., sees. 4386, 4390; United States 
 p. 338. V. Boston, etc. E. Co., 15 Fed. Rep. 
 
 * Act of August 30, 1890, 26 Stat. 209; United States v. Louisville, etc. 
 L. 414, Supp. R S. 794; Act of May R. Co., 18 Fed. Rep. 480. 
 29, 1884, 23 Stat. L. 31, Supp. E. S. 
 435. 
 
176 EEGULATION OF OAEEIEES. 
 
 vessel transporting animals from one State to another shall 
 confine them for longer than twenty-eight consecutive hours 
 without unloading for rest, water and feed for a period of 
 at least five hours, unless prevented by storm or other acci- 
 dental causes. This statute has no application to shipments 
 of cattle from point to point ■sj^hoUy within the limits of a 
 single State.' 
 
 It was held by the Supreme Court of Texas that this stat- 
 ute prevents the operation of State acts upon the same sub- 
 ject so far as concerns interstate shipments.^ 
 
 The statute does not, however, state all the many duties 
 assumed by a carrier of live-stock,' but rather states a mini- 
 mum decree of care and attention below which an interstate 
 carrier may not fall. In Massachusetts the State has sub- 
 stantially adopted the Federal statute * upon the subject, and 
 has provided additional means for its enforcement, and it is 
 considered by the Supreme Court of that State that this reg- 
 ulation may apply to that part of an interstate journey which 
 is within the State.^ The act does not impose duties upon 
 carriers beyond the limits of Massachusetts, but recogniz- 
 ing that the care which an animal needs depends upon the 
 care which it has received, measures the carrier's conduct 
 in part by what has been done outside the Commonwealth 
 under such circumstances that corporations within the Com- 
 monwealth would have knowledge of it, or could easily 
 ascertain it ; and then makes it the duty of a railroad cor- 
 poration to ascertain whether animals which it receives from 
 connecting roads for transportation can be continuously con- 
 fined without cruelty until their destination is reached. The 
 statute was therefore sustained on the ground that its op- 
 eration was confined to the State. 
 
 1 United States v. East Tennes- p. 193S; Toledo, etc. Ry. Co. v. 
 see, etc. B. Co., 13 Fed. Eep. 643; Thompson, 71 ILL 434; Cragin v. 
 Davis V. Texas, etc. R. Co., 13 Tex. N. Y. C. R. Co., 51 N. Y. 61. 
 
 Civ. App. 427. * Pub. St., ch. 307, sees. 55, 58. 
 
 2 Q-uIf, etc. Ry. Co. V. Gray, 87 Tex. 'Hendrick v. Boston & A. Ry. 
 313, overruling s. C, 34 S. W. Rep. Co. (Mass.), 48 N. E. Rep. 835. Conf. 
 837. Comer v. Columbia N. & L. R Ca 
 
 3 Wood on Railroads (3d ed.), (So. Car.), 39 S. E. Rep. 637. 
 
EEGTJLATIOK OF 0AEEIEE8. Ill 
 
 A State law designating the places or wharves at which 
 stock shall be landed from steamboats is not a regulation 
 of commerce, and can be enforced with reference to inter- 
 state shipments.^ And when a railroad takes freight for 
 transportation into a State it is its duty to ascertain, and in 
 its contract to conform to, the legitimate police regulations 
 of the State." 
 
 The Sight to the Benefit of State Laws. — In the conduct 
 of interstate commerce persons are subject to the obligation 
 of State laws securing personal and property rights, and are 
 entitled to their protection. A statute abrogating all rem- 
 edies for the wrongful exclusion of a passenger from a rail- 
 way car is unconstitutional, so far as it relates to railroads 
 operating between two or more States.' " Persons travel- 
 ing on interstate trains are as much entitled, while within 
 a State, to the protection of that State, as those who travel 
 on domestic trains." * They are entitled to recourse to the 
 State courts to protect their rights, and conversely are sub- 
 ject to the process of those courts while within their juris- 
 diction.' So a State cannot refuse to permit the vendor of 
 property imported in accordance with Federal law to re- 
 cover the purchase price of that property.* The obligation 
 of a telegraph company to exercise diligence in transmitting 
 and delivering, withia the State, a telegram received from 
 another State, is a common-law duty which a telegraph 
 company, like other carriers, owes to senders, and a State 
 law is valid which imposes a penalty for its violation.' 
 
 1 State ex reL Belden V. Fagan, 22 den, 55 Fed. Eep. 593; Landa v. 
 La. Ann. 545. See Slaughter-Honse Missouri, etc. R. Co., 129 Mo. 663. 
 Cases, 16 "Wall 36. SDurkee v. Moses (N. H.), 23 AtL 
 
 2 Hendrick v. B. & A. E. Co., 48 Eep. 793; Doherty v. Cotter (N. H.), 
 N. E. Eep. 835. 38 AtL Rep. 499; Barrett v. Delano 
 
 3 Brown v. Eaalroad Co., 5 Fed. (Me.), 14 AtL Eep. 288. Conf. Mc- 
 Eep. 499. Guinness V. Bligh, 11 R. L 94 Corir 
 
 *New York, etc. E. E. Ca v. New tra, Meservey v. Gray, 55 Me. 540; 
 
 York, 165 U. S. 628, 632. Knowlton v. Doherty, 87 Me. 518. 
 
 ^Holyoke, etc. Ice Co, v. Amb- 'Telegraph Co. v.Fenton, 52 Ind. 
 12 
 
178 EEGTJLATION OF OAEEIEES 
 
 Appointment ofltesidenl Agents. — A State law requiring 
 tliat a foreign corporation which locates or does domestic 
 business in a State shall have a known place of business and 
 an authorized agent upon whom process may be served has 
 been held a legitimate exercise of the police power of the 
 State,^ but no requirement may be made a condition of the 
 right to engage in interstate commerce.' 
 
 Sunday Laws. — The courts have in recent years gone far 
 to sustain the validity of Sunday laws as applied to inter- 
 state commerce. Under earlier decisions it was held that 
 such State laws could have no application to the sale of 
 liquors in original packages ; ' that a State could not prohibit 
 the running of interstate trains,^ nor the carriage of express 
 matter through the State on Sunday.' 
 
 More recent cases have, however, upheld these laws. Stat- 
 utes prohibiting labor on Sunday are rules of civil conduct, 
 applicable to all persons within the State on that day. It is 
 true that the effect of such laws amounts, during the time 
 and to the extent that they operate, to a prohibition of inter- 
 state and foreign commerce, but the same may be said of a 
 quarantine law which interrupts transportation for days or 
 possibly for weeks, and extends to and operates upon ves- 
 
 1; Telegraph Co. v. Tyler, 90 Va. Bateman,32S.W.Eep.771; Packet 
 
 297 ; Telegraph Co. v. Bright, 90 Va. Co. v. James, 32 Fed. Eep. 31 ; Singer 
 
 778; Telegraph Co. V. James, 90 Ga. Mfg. Co. v. Hardee, 4 N. M. 175; 
 
 254; Telegraph Co. v. Bates, 93 List v. Commonwealth, 118 Pa. St. 
 
 Ga. 853; Telegraph Co. v. Lark, 95 333. Conf. Western Paper Bag Co. 
 
 Ga. 806. Conf., however, Rogers v. v. Johnson, 38 S. W. Eep. 364; Hnfl- 
 
 Telegraph Co., 133 Ind. 395. man v. Western Mortgage, etc. Co., 
 
 1 Stockton V. Baltimore, etc. E. 36 S. W. Eep. 306; Barron v. Biim- 
 Co., 32 Fed. Eep. 9, 14; Fritts v. side, 131 U. S. 186. 
 
 Palmer, 133 U. S. 282; Telegraph 8 Bode v. State, 7 Gill (Md.), 336. 
 
 Co. T. Telegraph Co., 67 Ala. 36. * Commonwealth v. Chesapeake 
 
 2 Fritts V. Pahner, 132 U. S. 282; & Ohio R Co., 3 Int. Com Eep. 398; 
 Eeed v. Walker, 2 Tex. Civ. App. Norfolk & Western E. Co. v. Com- 
 93 ; Gunn v. White Sewing Machine monwealth, 88 Va. 95. 
 
 Co., 57 Ark. 24; Lyon, Thomas & 6 Dinsmore v. The Board, 12 Abb. 
 Co. V. Reading, etc. Co., 21 S. W. N. C. 436; Adams Express Co. v. 
 Eep. 300; American Starch Co. v. Board, 65 How. Pr. 72. 
 
EEGULATION OF CAEEIEES. 1T9 
 
 sels, railway cars, oflBoers, crew and passengers. Few State 
 laws which, operate directly on domestic commerce are with- 
 out direct e£fect upon interstate commerce, but they are not 
 for this reason alone invalid. The question in every case is 
 whether the police power of the State obstructs foreign or 
 interstate commerce beyond the necessity for its exercise. 
 
 In its general police jurisdiction a State may prohibit the 
 operation on Sunday of freight trains, whether engaged in 
 interstate business or not ; ^ may punish any person who la- 
 bors in transportation of iuterstate freight on Sunday,^ and 
 may prohibit the running of empty freight trains.' In In- 
 diana, also, these laws have been sustained, and it appears 
 to be held that the State may prohibit interstate carriers 
 from doing domestic business on Sunday.* 
 
 Control of Might of Way. — A State may require a carrier 
 to record conveyances of its right of way; * to fence its road 
 within the State ; to stop its trains at railroad crossings ; to 
 slacken speed while running in crowded thoroughfares ; to 
 light its road within the limits of a village;* to put in 
 switches to connect with railways crossing its tracks ; ' to 
 provide suitable accommodations at stations; to erect bridges 
 and construct grades and crossings in a prescribed manner, 
 and many other things of a kindred nature affecting the 
 comfort, convenience or safety of those who are entitled to 
 look to the State for protection against the wrongful or 
 negligent acts of others.^ 
 
 A State may require a telegraph company doing an inter- 
 
 1 Hennington v. Georgia, 163 U. S. ^ Commonwealth v. Chesapeake 
 299; Hennington v. State, 90 Ga. & O. Ey. Co., 40 S. W. Eep. 350. 
 396 ; State v. Southern By., 119 N, C. « Village of St. Bernard v. Cleve- 
 814 land, C, C. & St. L. Ey., 4 Ohio D. 
 
 2 State V. EaUroad Co., 34 W. Va. 371. 
 
 783. ' Jacobson v. Wisconsin, M. & P. 
 
 s Norfolk & W. E. Co. v. Com- E. Co. (Minn.), 74N.W. Eep. 893. 
 
 monwealth, 93 Va. 749, overruling 8 stone v. Trust Co., 116 U. S. 307, 
 
 88 Va. 95. 334; Eailroad Co. v. Fuller, 17 WaU. 
 
 4Dugan V. State, 135 Ind. 130; 560; People v. Eaib:oadCo.,70 N. Y. 
 
 Dorsey v. State, 135 Ind. 600. 569 ; Thorp v. Eailroad Co., 37 Vt. 140. 
 
180 BEGULATIOIT OF CAEEIEES. 
 
 state business to place its wires undergroima; and may 
 make it the duty of every telegraph company to provide 
 sufficient facilities to receive dispatches from and for other 
 telegraph lines, and from or for any individuals, upon pay- 
 ment or tender of its lawful charges.' 
 
 Charges upon Telegraph Poles and Wires. — Municipalities 
 within whose streets poles and wires are maintained by tele- 
 graph companies may charge for the use of the streets.' 
 In St. Louis V. Western Union Telegraph Co.^ a tax of five 
 dollars upon each telegraph or telephone pole standing in a 
 public street or alley was sustained on the ground that al- 
 though, under its charter, the city had no authority to impose 
 such a tax, this charge was a rental for the use of public 
 property. All that the company could ask, it was said, 
 would be that the charge should be reasonable in amount. 
 This question must be open to determination in the courts.' 
 
 It has been held that license fees imposed by a munici- 
 pality upon a telegraph company, greatly in excess of the 
 amount necessary to supervise the lines, are invalid.' 
 
 In estimating the amount of such charges the city is not 
 limited to the expense of supervision. Eemuneration should 
 be in proportion not only to time and outlay, but to respon- 
 sibility, and a public or private agent who is exposed to loss 
 in case of injury to persons or property may demand higher 
 pay.' This doctrine was applied in PhUadelphia v. Tele- 
 graph Go.,'' although in that case the company had paid 
 taxes on the value of the poles and on its gross receipts for 
 the use of the poles. 
 
 1 Telegraph Co. v. Mayor, etc. of < 148 IT. S. 93; s. C, 39 Fed. Eep. 59. 
 New York, 38 Fed. Rep. 552; Amer- » City v. Postal TeL Co., 67 Hun, 
 ican Telegraph Co. v. Hess, 135 31, 50 N. Y. Supp. 301. 
 
 N. Y. 641 ; American Telegraph Co. ^ Philadelphia v. Western Union 
 
 V. Hess, 58 Hun, 610. Tel. Co., 40 Fed. Eep. 615; Phllar 
 
 2 ConneU v. Telegraph Co., 108 delphia v. Western Union TeL Co., 
 Mo. 459. 82 Fed. Rep. 797. Conf. Telegraph 
 
 3 Telegraph Co. v. Baltimore, 79 Co. v. Richmond, 78 Fed. Rep. 858. 
 Md. 503; City v. Telegraph Co., 167 'Telegraph Co. v. Philadelphia, 
 Pa. St 406. 23 W. N. C. 39. 
 
 8 81 Atl. Rep. 638. 
 
EEGULATION OF CAEEIEES. 181 
 
 Transmission and Delivery of Telegrams. — It has been 
 shown that the obligation of carriers to receive, transport 
 and deliver arises from the laws of the State where the con- 
 tract is made and transportation begins. The carrier isj 
 however, subject, in each State in which he operates, to 
 local laws. A statute requiring a telegraph company to re- 
 ceive, transmit and deliver messages with due diligence, 
 and imposing a penalty for non-compliance, is a valid exer- 
 cise of police power.^ It imposes no duty which the carrier 
 would not owe in the absence of a statute, nor does it em- 
 barrass or obstruct free transmission of messages from one 
 State to another. A State may also provide for delivery 
 of messages received within its limits,^ but it cannot ex- 
 tend the operation of its laws so as to impose requirements 
 concerning delivery in another State as part of the contract 
 by which they are received.' 
 
 Upon these principles recovery of penalties for failure to 
 deliver messages within a reasonable time have been allowed, 
 although the act of negligence occurred without the limits of 
 the State under whose laws the penalty was recovered; ^ and 
 where the act of negligence was committed partly within 
 and partly without the State ; ' and where the message was 
 never forwarded from the oflBce within the State ; ^ and where 
 the act of negligence could not be precisely located at aU, 
 
 1 Telegraph Co. v. Hamilton, 50 'Telegraph Co. v. Pendleton, 133 
 Ind. 181 ; Telegraph Co. v. Meredith, U. S. 347 ; ConneU v. Telegraph Co., 
 95 Ind. 93; Telegraph Co. v. Ferris, 108 Mo. 459. 
 
 103 Ind. 91; Telegraph Co. v. Pen- « Telegraph Co. v. Hamilton, 50 
 
 dleton, 95 Ind. 13; Telegraph Co. v. Ind. 181; Telegraph Co. v. Pendle- 
 
 Michelson, 94 Ga. 436; Telegraph ton, 95 Ind. 18; Telegraph Co. v. 
 
 Co. V. Howell, 95 Ga. 194 Meredith, 95 Ind. 93; Telegraph Co, 
 
 2 Telegraph Ca v. James, 163 U. v. Ferris, 103 Ind. 91. 
 
 S. 650, 90 Ga. 854; Telegraph Ca v. s Reed v. Telegraph Co., 135 Mo. 
 
 Lark, 95 Ga. 806; Telegraph Co. v, 661; Reed v. Telegraph Co., 56 Mo. 
 
 Bright, 90 Va. 778; Telegraph Co. App. 168. 
 
 V.Tyler, 90 Va. 397; Telegraph Co. v. « Telegraph Co. v. Miohelson, 94 
 
 Fenton, 58 Ind. 1; Telegraph Co. v. Ga. 436. 
 
 Bates, 93 Ga. 353. Conf . Rogers v. 
 
 Telegraph Ca, 183 Ind. 394 
 
182 EEGULATION OF CAHEIEES. 
 
 the evidence showing merely that the message had not been 
 received at the office of address.' 
 
 In the case of telegraph companies which have taken ad- 
 vantage of the Federal statutes, telegrams between the sev- 
 eral departments of the government, their officers and agents, 
 are given priority over all other business.^ It has also been 
 held that the order of transmission of telegraph messages 
 may be the subject of local regulation by a State.' 
 
 It seems, however, that such statute must be considered a 
 regulation of interstate commerce beyond State jurisdiction. 
 If a law of one State requiring telegraph messages to be sent 
 within a fixed time after their receipt at the sending office 
 could be sustained, a statute could also be sustained which 
 gave precedence to certain classes of messages, such, for in- 
 stance, as those signed by or addressed to physicians; or 
 relating to State, county or municipal government; or pro- 
 viding that messages of ten words or under should have pre- 
 cedence over longer messages; or that telegraph messages 
 addressed to the agencies of the pubUo press for dissemina- 
 tion of public information should have precedence over all 
 private messages, or adopting any other method of classifi- 
 cation. Such legislation, adopted by different States, would 
 effect the confusion which it was the purpose of the com- 
 merce clause to prevent. 
 
 Transmission of Freight. — The same rule applies to State 
 statutes requiring freight to be forwarded within a certain 
 time after receipt by the carrier. Such laws have been sus- 
 tained,* and yet they are clearly regulations of commerce 
 which operate beyond the limits of a State. The obliga- 
 tion of a carrier, imposed by the laws of the several States, 
 
 1 Telegrapli Co. V. Howell, 95 Ga. « "Whitehead & Stokes v. Wil- 
 
 194 See Telegraph Co. v. Mellan, miagton & N. R Co., 87 N. C. 255; 
 
 45 S. W. Rep. 443. Branch v. W. & W. R. Co., 77 N. C. 
 
 2U. S. Rev. Stat., sec. 5366. 347; Bagg v. Wilmington, etc. E. 
 
 ' Butner v. Telegraph Co., 3 Okla. Co., 109 N. C. 279. 
 234 
 
EEGTJLATIOIT OF CAEEIEES. 183 
 
 is undoubtedly an obligation to receive and to transport 
 withia a reasonable time ; but the question what is the meas- 
 ure of a reasonable time, Ulie the standard for determina- 
 tion of reasonableness of rates, depends upon matters be- 
 yond the control of any single State. If North Carolina 
 could give the right of way to freight which had been held 
 four days, South Carolina might give it to perishable freight. 
 The result would be a conflict of regulations, under which 
 interstate transportation could not be effectively performed. 
 
 In some cases State statutes requiring the delivery of 
 freight upon the tender of charges stated in the bill of lad- 
 ing have been sustained as applied to goods received from 
 other States.^ 
 
 State regulations upon this subject are now superseded by 
 the provision of the interstate commerce law prohibiting car- 
 riers from collecting any greater or less compensation than 
 specified in their schedule of rates.^ 
 
 State Regulation Affecting Passenger Tickets. — A State 
 may forbid the sale of tickets for interstate journeys by any 
 person not having written authority from the railway com- 
 pany.' A State may not, by regulations directly affecting 
 contracts of carriage, iadirectly regulate interstate rates, and 
 for this reason statutes requiring the sale of mileage books 
 
 1 Gulf, etc. R. E. Co. v. Dwyer, 75 Co. v. Hubbell, 54 Kan. 232; Savan- 
 Tex. 572; Ft. Worth, etc. R. R. Co. nah, F. & W. E. E. Co. v. Bimdick, 
 V. LiUard, 16 S. W. Rep. 654; Gtdf, 94 Ga. 775. Conf. Rowland v. New 
 etc. R. R. Co. V. Nelson, 4 Tex. Civ. York, N. H. & H. R. E. Co., 61 Conn. 
 App. 345; Little Rook, etc. R E. Co. 103; Gerber v. "Wabash R. R Co., 
 V. Hanniford, 49 Ark. 291. 63 Mo. 145; Houston & T. C. E. E. 
 
 2 Gulf, etc. R E. Co. v. Hefley, 158 Co. v. Dumas, 43 S. W. Rep. 609; 
 U. 8. 98; Balrd v. St. Louis, etc. Houston, E. & W. T. Ry. Co. v. Pet- 
 R. R. Co., 41 Fed. Rep. 593; Mobile, ers, 40 S. W. Rep. 439; Dillingham 
 etc. R. R. Co. V. Dismukes, 94 Ala. v. Fischl, 1 Tex. Civ. App. 546. 
 132; Houston, etc. R.R. Co. V.Camp- 'Minnesota v, Corbett, 57 Minn, 
 bell (Tex. Civ. App.), 40 S. W. Rep. 345; Commonwealth v. Wilson, 14 
 431; St. Louis & S. W. R. R. Co. v. Phila. 384; Burdick v. People, 149 
 Carden (Tex. Civ. App.), 34 S. W. HI. 600. See People v. Warden of 
 Rep. 145. See Chicago, R. L & P. Ry. City Prison, 50 N. Y. S. 56. 
 
184: EEGTJLATION OF OABEIEES. 
 
 at fixed rates have generally been applied solely to domestic 
 transportation.^ It has been suggested that such a statute 
 might apply to transportation between points in the same 
 States incidentally passing through an adjoining State ; " but 
 this, as has been seen,' is contrary to the weight of authority. 
 It is also held that State statutes providing that railroad 
 tickets shall be good for six years, and that the holder shall 
 have the right to stop off at any station, would be invalid as 
 applied to foreign and interstate journeys.* So a State act 
 requiring a carrier to redeem unused portions of tickets can- 
 not apply to tickets for interstate transportation.' Taxation 
 upon contracts of carriage is a regulation of the carriage 
 itself, and as applied to transportation without the State is 
 beyond State jurisdiction.' 
 
 Stopping Trains. — A State may require regular passenger 
 trains operating within its territory to stop at county seats ; '' 
 and these laws are valid as to trains engaged in interstate 
 transportation carrying the United States mail upon a high- 
 way granted by the Federal government;' but a railroad 
 company cannot be compelled to send trains out of their 
 course to make stops required by State laws.* 
 
 Details of Operation. — A State may forbid railroad com- 
 panies to heat their cars by stoves or furnaces kept inside 
 the cars; '" may require vessels burning wood to be provided 
 
 1 Smith Y. Lake Shore, etc. E. R. ' Chicago & A, E. Co. v. People, 
 
 Co., 72 N. W. Eep. 338; Beardsley v. 105 HL 657; Illinois Central R. R 
 
 New York, etc. R E. Co., 40 N. Y. Co. v. People, 143 111. 434; EaUroad 
 
 Supp. 1077, 44 N. Y. Supp. 175. Co. v. State, 8 Ohio 0. C. Eep. 320. 
 
 3 Dillon V. Erie E. E. Co., 43 N. Y. 8 state v. Gladson, 67 Minn. 385 ; 
 
 Supp. 320. Gladson v. Minnesota, 166 U. S. 437. 
 
 ^Ante, pp. 87-90. 9iuinois Central E E Co. v. Illi- 
 
 * Carpenter v. Grand Trunk Ry. nois, 163 U. S. 142, reversing Illi- 
 
 Co., 73 Me. 388; La Farier v. Grand nois Central E E Co. v. People, 143 
 
 Trunk Ry. Co., 84 Me. 286. HI. 434. 
 
 s Missouri, K. & T. Ey. Ca v. " People v. Railroad Co., 55 Hun, 
 
 Tookes, 40 S. W. Rep. 858. 409, 8 N. Y. Supp. 672; Railroad Co. 
 
 6 People V. Raymond, 34 CaL 493. v. New York, 165 U. S. 638, 632. 
 
EEGUIATION OF OAEEIEES. IS^ 
 
 with suitable fire screens; ' it may require interstate carriers 
 to return statements of earnings made in carriage between 
 points in the State;" to notify the public whether its trains 
 are on time,' and to return statements of the names, ages, 
 conditions, etc., of alien passengers landed within the State.* 
 So it has been held that when the cost of railroad switch- 
 ing service is not included as a part of an interstate rate, it is 
 local in nature and is subject to State regulation.* Also that 
 a State law requiring railroads to draw cars for other cor- 
 porations at reasonable rates, to be agreed upon between the- 
 parties or fixed by a commission, is a valid exercise of State 
 authority.* 
 
 Examination of Railway Employees. — It is also held that 
 a State law prescribing the qualifications of locomotive engi- 
 neers and other railway employees, requiring an examina- 
 tion and imposing a license fee therefor, is a constitutional 
 exercise of the police powers of the States, even as applied 
 to persons engaged solely in transportation between points 
 in different States.' 
 
 Federal Jurisdiction Over Local Matters. — The authority 
 of the State in matters of local regulation does not, however^ 
 exclude the Federal government. " It is not doubted that 
 Congress has the power to go beyond the general regulations 
 of commerce, which it is accustomed to establish, and to 
 descend to the most minute directions, if it shall be deemed 
 
 1 Burrows V.Delta Transportation Eep. 849. See State of Iowa v. C, 
 C!a, 106 Mich. 58a M. & St P. R Ca, 33 Fed. Eep. 391. 
 
 2 State V. Pullman's P. G Cto., 64 « Eae t. Railroad Co., 14 Fed. Eep. 
 "Wis. 89. 401. 
 
 ' State V. Indiana, etc. R R Co., ' Smith v. Alabama, 124 U. S. 465 ; 
 
 138 Ind. 69; State v. Pennsylvania Smith v. Alabama, 85 Ala, 341,. 
 
 Co., 133 Ind. 700. overruling previous cases; McDon- 
 
 < Comm. V. Brand, 26 La. Ann. Sa aid v. State, 81 Ala. 279 ; Nashville, 
 
 See Board v. "Willamette Trans. Ca, etc. E. E. Co. v. Alabama, 128 U. S. 
 
 6 Oreg. 319. 96, 83 Ala. 71; Eailroad Co. v. Bald- 
 
 SEailroad Ca v. Becker, 32 Fed. win, 85 Ala. 619. 
 
186 EEGULATION OF CAEEIEES. 
 
 advisable, and that to whatever extent ground shall be cov- 
 ered by those directions, the exercise of State power is ex- 
 cluded. Congress may establish police regulations, as weU 
 as the States, confining their operations to the subjects over 
 which it is given control by the Constitution, but as the gen- 
 eral police power can better be exercised under the supervision 
 of the local authority, and mischiefs are not likely to spring 
 therefrom so long as the power to arrest resides in the na- 
 tional courts, the regulations which are made by Congress 
 do not often exclude the establishment of others by the State 
 covering very many particulars." ' "When Congress acts in 
 these respects it does not repeal, but suspends, State laws 
 upon the subjects, and when the act producing this result is 
 repealed, or so modified as to permit the operation of the 
 State law, it becomes again valid and in force.^ 
 
 iCooley'sConst.Lim.(4thed.)732, 'In re Eahrer, 140 XT. S. 545; 
 
 cited ia Gloucester Ferry Co. v. Henderson v. Spofford, 59 N. Y. 131 ; 
 
 Pennsylvania, 114 IT. S. 196, 315; Board of Pilot Commissioners t. 
 
 Lin Sing v. Washburn, 20 CaL 584; Pacific Mail S. S. Co., 53 N. Y. 609; 
 
 Bradley v. Transportation Co., 15 Sturgis v. SpoflEord, 45 N. Y. 446. 
 Ohio St. 553; United States v. Stan- 
 ley, 109 U. S. 3, 18. 
 
CHAPTER YII. 
 
 PROHIBITION UPON THE STATES. 
 
 In defining the powers of tlie States, many cases may be 
 loond which lay down an apparently absolute line of dis- 
 tinction between State and Federal powers. It needs no 
 argument, it has been said, to show that transportation, and 
 the purchase, sale and exchange of commodities carried on 
 among the States, admits of but one system of regulation, 
 and is subject to Federal control alone.^ 
 
 " It has been uniformly held, for example, that the states 
 cannot by legislation place burdens upon commerce with 
 foreign nations or among the several States." " But upon an 
 examination of the cases in which these decisions were ren- 
 dered," as was said in Sherloch v. Allvng, 93 U. S. 99, 102, " it 
 will be found that the legislation adjudged invalid imposed 
 a tax upon some instrument or subject of commerce, or ex- 
 acted a license fee from parties engaged in commercial pur- 
 suits, or created an impediment to the free navigation of some 
 public waters, or prescribed conditions in accordance with 
 which commerce in particular articles or between particular 
 places was required to be conducted. In all the cases, the leg- 
 islation condemned operated directly upon commerce, either 
 by way of tax upon its business, license upon its pursuit, in 
 particular channels, or conditions for carrying it on." ^ 
 
 Furthermore, State legislation, to be unconstitutional as a 
 regulation of commerce, " must be such as will necessarily 
 amount to or operate as a regulation of business without the 
 State as well as within." ' 
 
 1 MobUe V. Kimball, 102 U. S. 691- « Smitb v. Alabama, 134 U. S. 465, 
 
 703; Leisy v. Hardin, 135 U. S. 100; 474 
 
 Gloucester Ferry Co. v. Pemisyl- 3 stone v. Trust Ca, 116 TJ. S. 335. 
 vania, 114 U. S. 304 
 
188 PROHIBITION ■UPON THE STATES. 
 
 Botli persons and property witliin the limits of the State 
 are subject to its control, except in so far as they are engaged 
 in and are part of a commerce which extends beyond the 
 State.i 
 
 The line which marks this distinction is, in many cases, 
 exceedingly difficult to trace, but in general terms it has 
 been said that it is the purpose of the Constitution to place 
 the operations of interstate commerce beyond State restric- 
 tions. The boundary between State and Federal powers in 
 this respect was well defined by Judge Hammond in the 
 Tennessee EaUroad Commission cases : 
 
 " The power of Congress to regulate an instrumentality of 
 commerce is practically unlimited because it may reach the 
 commerce itself, as well as its agencies; wherefore, there is 
 no need to look to the character of the regulation in deter- 
 mining the power, but only to the character of the commerce. 
 But when we turn to the power of the states, we must nec- 
 essarily scrutinize both. , . . The real question, as to the 
 states, always is two-fold, — does the proposed law act upon 
 commerce itself, or does it act only on the instrumentality? 
 If the first, it is always void; if the second, its validity de- 
 pends on the circumstances. Here lies the fallacy of this and 
 all legislation, which overlooks the not always broad dis- 
 tinction between regulating the commerce itself and its in- 
 strumentalities." * 
 
 Eegulation Not Always Bestriction. — Eegulation is not 
 necessarily the imposition of a burden. The Federal stat- 
 utes, for instance, authorize every railroad company in the 
 United States, whose road is operated by steam, to carry 
 passengers and property from State to State ; to receive pay- 
 ment therefor, and to connect with roads of other States.' 
 This statute is a regulation of commerce made by Congress 
 
 1 Smith V. Alabama, 134 U. S. 465- « Louisville & N. R. R. Co. v. EaU- 
 
 476; Sherlock v. Ailing, 93 U. S. 99; road Commission, 19 Fed. Rep. 679- 
 
 Philadelphia v. Telegraph Co., 40 709. 
 
 Fed. Rep. 615; Dorman v. State, 34 'U. a Rev. Stat., tit LXIV, sec. 
 
 Ala. 216. 5358. 
 
PROHIBITION UPON THE STATES. 189 
 
 Tuader the authority of the commerce clause, and yet is per- 
 missive only and imposes no burden.^ 
 
 There are State enactments, also, -which would impose no 
 burden directly and yet -would be void. A State la-w acting 
 outside the State — fixing reasonable rates, for example — 
 -would impose no burden, and yet -would offer a possibility of 
 conflict bet-ween regulations of different States. 
 
 To regulate commerce has often been defined as " to pre- 
 scribe the conditions under -which commerce shall be con- 
 ducted." ^ Such a definition as this clearly brings -within 
 its scope all regulation of iustrumentalities as -weU as acts of 
 commerce. It is not surprising, therefore, that this defini- 
 tion has been often qualified by the general statement that 
 " it is not everything that affect commerce that amounts to 
 a regulation of it -withia the meaning of the Constitution." ' 
 
 Turning to the cases, it seems that the gist of the limita- 
 tion upon the po-wer of the States in respect to interstate 
 and foreign commerce may be found in the statement of 
 Mr. Justice Bre-wer that " the moment you find any act of 
 the legislature, or any ordinance of a city, which prevents 
 the free exchange of lawful articles of commerce between the 
 states, you find an act or ordinance which contravenes the 
 commerce clause of the United States constitution." * 
 
 Upon interstate commerce the States may lay no burden 
 whatever, for that, it is said, amounts to such a regulation 
 of it as belongs to Congress alone; * wiule, on the other hand, 
 it is frequently said that in matters which are " auxiliary to 
 commerce," or which " may be used in aid of commerce," the 
 powers of the States, in the absence of Federal action, are 
 unimpaired.* 
 
 1 Railroad Co. v. Richmond, 19 State Tax on Gross Receipts, 15 
 WftlL 584; Richmond v. Railway WsilL 284, 293. 
 
 Co., 33 Iowa, 433. 4 Ex parte KiefEer, 40 Fed. Rep. 
 
 2 Henderson v. The Mayor, 92 U. S. 399 ; In re Sanders, 52 Fed. Rep. 803 ; 
 359, 270; Gloucester Ferry Co. v. In re Rebman, 41 Fed. Rep. 867. 
 Pennsylvania, 114 U. S. 196, 203; sLeloup v. MobUe, 137 U. S. 640, 
 Welton V. Missouri, 91 U. S. 278, 280. 648. 
 
 sMunn v. Illinois, 94 U. S. 135; sRobbins v. Taxing District, 120 
 
190 PEOHIBITION UPON THE STATES. 
 
 In some instances the distinction thus suggested has been 
 carried in its application to a very considerable extent, and 
 regulations which appear to act directly upon commerce 
 have been sustained on the ground that their action imposed 
 no burden.1 
 
 Biile as to Foreign Corporations. — There has been some 
 fluctuation of opinion concerning the right of a corporation 
 of one State to do business in another, the early doctrines 
 holding that its rights in any State other than in that of its 
 creation were largely dependent upon comity.^ It was not 
 long, however, before the rapid changes in the habits of 
 business, which has made corporate agency so necessary a 
 part of modern commerce, produced a change in the views 
 of the courts. 
 
 " In the pursuit of business authorized by the government 
 of the United States, and under its protection, the corpora- 
 tions of other states cannot be prohibited or obstructed by 
 any state. If congress should employ a corporation of ship 
 builders to construct a man-of-war, they would have the 
 right to purchase the necessary timber and iron in any state 
 of the Union. And, in carrying on foreign and inter-state 
 conunerce, corporations, equally with individuals, are within 
 the protection of the commercial power of congress and can- 
 not be molested in another state by state burdens or impedi- 
 ments. . . . It is argued that corporations, as such, have 
 no legal existence outside of the state by whose laws they are 
 created, and cannot transact business in another state except 
 by the comity of its laws. . . . This doctrine is subject to 
 much qualification. The habits of business have so changed 
 since the decision in the case of £cmk of Augusta v. Ewrle, 13 
 
 U. S. 489; MobUe v. KimbaU, 102 way Co. v. Dwyer, 75 Tex. 572; 
 
 U. S. 691, 702. Connell v. Telegraph Co., 108 Mo. 
 
 1 Western Union Telegraph Co. 459. 
 
 V. James, 90 Ga. 354; Bagg v. Rail- ^-Western Union Telegraph Ca v. 
 
 road Co., 109 N. C. 279. Conf. Mo- Lieb, 76 DL 172. 
 Gwigan's Case, 95 N. C. 432; Eail- 
 
PEOHIBITION UPON THE STATES. 191 
 
 Pet. 519, and corporate organizations have been found so con- 
 venient, especially as avoiding a dissolution at every change 
 of membership, that a large part of the business of the 
 country has come to be transacted by their instrumentality; 
 while their most objectionable feature, the non-liability of 
 corporators, has in most iustanoes been abrogated in whole 
 or iu part ; and to deny their admission from one state to 
 another in ordinary cases, at the present day, would go far 
 to neutralize that provision in the fourth article of the con- 
 stitution which secures to the citizens of one state all the priv- 
 ileges and immunities of citizens ia another, and that provis- 
 ion of the fourteenth amendment which secures to all persons 
 the equal protection of the laws. So strongly is this felt that, 
 in the recent case of Scmta Ola/ra County v. Southern PadJiG 
 Bml/road Co.., 118 U. S. 394, 396, the doctrine that corpora- 
 tions are not citizens or persons, within the protective lan- 
 guage of the constitution, was unanimously disapproved, and 
 the court expressly held that they are entitled, as well as 
 individuals, to the equal protection of the laws, under the 
 fourteenth amendment of the constitution." ^ 
 
 " If a partnership firm of individuals should undertake to 
 carry on the business of interstate commerce between Ken- 
 tucky and other States, it would not be within the province 
 of the state legislature to exact conditions on which they 
 should carry on their business, nor to require them to take 
 out a license therefor. To carry on interstate commerce is 
 not a franchise or a privilege granted by the State; it is a 
 right which every citizen of the United States is entitled to 
 exercise under the Constitution and laws of the United 
 States ; and the accession of mere corporate facilities, as a 
 matter of convenience in carrying on their business, cannot 
 have the effect of depriving them of such right, unless Con- 
 gress should see fit to interpose some contrary regulation on 
 the subject."* 
 
 1 Stockton V. B. & N. Y. Ey. Co., 47; Steamship Co. v. Pennsylvania, 
 33 Fed. Eep. 9, 13, 14. 123 U. S. 337; Gloucester Ferry Co. 
 
 2 Crutcher v. Kentucky, 141 U. S. v. Pennsylvania, 114 U. S. 205. 
 
192 PEOHiBiTioir upoKr the states. 
 
 A State can no more exclude from its territory a corpo 
 ration engaged in foreign or interstate commerce than it 
 can exclude an individual so engaged.^ 
 
 "Wlien tlie business transacteU is authorized by the Con- 
 stitution it may be conducted by any instrumentality, indi- 
 vidual or corporate. 
 
 "At the time of the formation of the Constitution a large 
 part of the commerce of the world was carried on by corpo- 
 rations. The East India Company, the Hudson's Bay Com- 
 pany, the Hamburgh Company, the Levant Company, and 
 the Yirginia Company, may be named among the many cor- 
 porations then in existence which acquired, from the extent 
 of their operations, celebrity throughout the commercial 
 world. This state of facts forbids the supposition that it 
 was intended in the grant of power to Congress to exclude 
 from its control the commerce of corporations. The lan- 
 guage of the grant makes no reference to the instrumental- 
 ities by which commerce may be carried on; it is general, 
 and includes alike commerce by individuals, partnerships, 
 associations and corporations." * 
 
 A State May Not ProMMt Entrance to or Exit from its 
 Territory. — Every burden or obstacle laid upon transpor- 
 tation from State to State is a regulation of commerce,' and 
 beyond the power of the State to impose.* 
 
 A State cannot refuse to permit any person " or any proper 
 
 1 Cooper Mfg. Co. v. Ferguson, 113 Pennsylvania, 114 U. S. 196; Sher- 
 U. S. 737; State v. PuUman Palace look v. Ailing, 93 U. S. 99, 103. 
 Car Co., 16 Fed. Rep. 193; State v. <Leloiip v. Mobile, 137 U. S. 648; 
 Oil Co., 130 Ind. 575; MoNaughton Eobbins v. Taxing District, 130 
 V. McGirl (Mont.), 49 Pao. Eep. U. S. 465. 
 
 651. scrandaU v. Nevada, 6 Wall 85; 
 
 2 Paid V. Virginia, 8 "Waa 168; Ex parte Ah Cue, 101 CaL 197; All 
 PensacolaTeL Co. V. Western Union Ko-w v. Nunan, 5 Sawy. 563; Ex 
 TeL Co., 96 U. S. 1; State v. Pull- parte Lippman, 35 Pao. Rep. 557; 
 man P. C. Co., 16 Fed. Rep. 193; Joseph v. Randolph, 71 Ala. 499; ■ 
 State V. Oil Co., 130 Ind. 575. Validity of South Carolina Police 
 
 SRaUroad Co. v. Husen, 95 U. S. BiU, 1 Op. Atty. Gen. 659. Conf. 
 465, 470; Gloucester Ferry Co. v. Validity of South Carolina Police 
 
PEOHIBITION UPON THE STATES. 
 
 193 
 
 subject of commerce to enter or leave its territory ; * nor can 
 it impose any tax upon the act of entering or leaving,^ nor 
 any conditions' upon that right. A State may not com- 
 pel transshipment of freight -within its limits,* nor prohibit 
 crews of foreign vessels from working on the wharves load- 
 ing and unloading their ship; * nor may it compel vessels en- 
 tering its ports and in need of a survey or examination to 
 employ State officers for the purpose.' 
 
 Even in the exercise of its legitimate quarantine and police 
 powers, a State may not go beyond the necessity for then- 
 exercise and exclude lawful subjects of commerce. Statutes 
 which forbade the importation of aU Southern cattle during 
 certain periods of the year have therefore been held invalid,'' 
 
 Bill, 3 Op. Atty. Gen. 436; ante, 
 pp. 66, 57. 
 
 iFarris v. Henderson, 1 OkL 384; 
 Bowman v. Railroad Co., 135 U. S. 
 465; Leisy V. Hardin, 135 U. S. 100; 
 Sawrie v. Tennessee, 83 Fed. Rep. 
 615; Adams Express Co. v. Board, 
 65 How. Pr. 73; Dinsmore v. Board, 
 13 Abb. N. C. 436; CounoQ Bluffs 
 V. Kansas City Ry. Co., 45 Iowa, 888 ; 
 The Cynosure, 1 Sprague, 88; The 
 William Jarvis, 1 Sprague, 485; 
 Urton V. Sherlock, 75 Mo. 347; 
 Rothermel v. Meyerle, 7 Pa. Co. Ct. 
 Rep. 616; State v. Cobaugh, 78 M& 
 401; State v. Stilsing, 53 N. J. L. 
 517; SchoUenberger v. Pennsylva- 
 nia, 18 Sup. Ct. Rep. 757. 
 
 2 New York v. Miln, 11 Pet. 103; 
 Passenger Cases, 7 How. 388; Peo- 
 ple V. Downer, 7 CaL 169; Clark v. 
 Philadelphia, etc. Co., 4 Houst. 158; 
 Jackson Mining Co. v. Auditor-Gren- 
 eral, 33 Mich. 488; Salzenstein v. 
 Mavis, 91 lU. 391 ; Territory v. Evans, 
 33 Pac. Rep. 115 ; Carson River Lum- 
 ber Co. V. Patterson, 33 CaL 334; 
 State V. Saunders, 19 Kan. 137; 
 13 
 
 State V. Indiana & Ohio Oil Co., 130 
 Ind. 575; Telegraph Co. v. Texas, 
 105 U. S. 466; Cannon v. New Or- 
 leans, 30 WalL 577. 
 
 8 Cooper Mfg. Co. v. Ferguson, 118 
 U. S. 737; Joseph v. Randolph, 71 
 Ala. 499; People v. Paoiao MaU S. S. 
 Co., 16 Fed. Rep. 344, 8 Sawy. 640; 
 Lin Sing v. Washburn, 30 CaL 534; 
 People V. Downer, 7 CaL 169; Mitch- 
 ell V. Steelman, 8 CaL 863; Chy 
 Lung V. Freeman, 93 17. S. 375; New 
 York V. Campagnie, etc., 107 U. S. 
 59; Henderson v. The Mayor, 93 
 U. S. 359; Brown v. Maryland, 13 
 Wheat. 419. 
 
 * Council Bluffs v. Kansas City 
 Ry. Co., 45 Iowa, 348. 
 
 5 Cuban S. S. Co. v. Fitzpatriok, 
 66 Fed. Rep. 63. 
 
 * Port Wardens of New York v. 
 Cartwright, 4 Sandf. 336. 
 
 ' Ante, pp. 170-174 ; Railway Co. v. 
 Husen, 95 U. S. 465 ; Grimes v. Eddy, 
 136 Mo. 168; Jarvis v. Riggin, 94I1L 
 164; Salzenstein V. Mavis, 91 IlL 891; 
 Urton V. Sherlock, 75 Mo. 347. Conf . 
 State V. Duckworth, 51 Pac. Rep. 456. 
 
194 
 
 PEOHIBITION UPON THE STATES. 
 
 overruling earlier cases ; ' and a railroad company is not ex- 
 cused by such a statute from receiving such cattle for trans- 
 portation.^ 
 
 So statutes have been held invalid "which operate to exclude 
 dressed meats/ baking powder,^ convict-made goods," agri- 
 cultural products,* or liquor.' 
 
 State laws prohibiting the introduction of oleomargarine 
 are invalid as applied to oleomargarine imported from other 
 States,' although it has been held that oleomargarine col- 
 ored to present the appearance of butter may be excluded 
 as an exercise of the authority of the State to prevent fraud 
 or deception.' 
 
 1 Ante, pp. 170-174; Wilson v. Rail- 
 way Co., 60 Mo. 184; Mercer v. Kan- 
 sas City, etc. Ey. Co., 60 Mo. 397; 
 Kenney v. Hannibal, etc. Ey. Co., 
 63 Mo. 476. 
 
 2 Chicago & Alton Ey. Co. v. Erik- 
 sen, 91 111. 613. 
 
 3 Brimmer v. Eebman, 138 U. S. 
 78; Minnesota v. Barber, 136 U. S. 
 318; Georgia Packing Co. v. Mayor, 
 etc. of Macon, 60 Fed. Eep. 774; In 
 re Eebman, 41 Fed. Eep. 867; Swift 
 V. Sutphin, 39 Fed. Eep. 630; In re 
 Christian, 39 Fed. Eep. 636; Harvey 
 V. Huffman, 39 Fed. Eep. 646; In re 
 Barber, 39 Fed. Eep. 641; Ex parte 
 Kieffer, 40 Fed. Eep. 399; Hoffman 
 V. Harvey, 128 Ind. 600; State v. 
 Klein, 136 Ind. 68; Schmidt v. Peo- 
 ple, 18 Colo. 78. 
 
 * In re Ware, 53 Fed. Eep. 783. 
 
 5 People V. Hawkins, 31 N. Y. S. 
 115; People v. Hawkins, 85 Hun, 
 43; People v. Hawkins, 47 N. Y. 
 Supp. 56; In re Yanders (Ohio Ct. 
 Com. PL), 3 Ohio Dec. 136; Arnold 
 V. Yanders, 56 Ohio St. 417. Arti- 
 cles made wholly or in part in any 
 foreign country by convict labor 
 may not be imported into the 
 
 United States. Act of October 1, 
 1890, 36 Stat. L., sees. 51, 567, Supp. 
 Eev. Stat. 868; Act of August 37, 
 1894, 38 Stat. L. 553; Act of July 
 34, 1897, sec. 31, 1st session 55th 
 Cong., p. 311. 
 
 « In re Schecter, 63 Fed. Rep. 695; 
 State V. Duckworth, 51 Pac. Rep. 
 456; Commonwealth v. Simons, 3 
 Pa. Dist. Eep. 793; Spellman v. New 
 Orleans, 45 Fed. Eep. 3. 
 
 TAnte, p. 69; State v. Nash, 97 
 N. C. 514; Ex parte Loeb, 73 Fed. 
 Eep. 657; Donald v. Scott, 74 Fed. 
 Eep. 859. 
 
 8 SchoUenberger v. Pennsylvania, 
 18 Sup. Ct. Eep. 757; Collins v. New 
 Hampshire, 18 Sup. Ct. Rep. 768; 
 In re Worthen, 58 Fed. Eep. 467; 
 Ex parte Scott, 66 Fed. Eep. 45; In 
 re McAllister, 51 Fed. Eep. 383; In 
 re Gooch, 44 Fed. Eep. 276; Water- 
 bury V. Egan, 33 N. Y. Supp. 115; 
 Commonwealth v. Paul, 9 Pa. Co. 
 Ct. Eep. 196, 10 Pa. Co. Ct. Eep. 833; 
 Commonwealth v. SchoUenberger, 
 13 Pa. Co. Ct. Eep. 442. Contra, 
 Commonwealth v. SchoUenberger, 
 156 Pa. St. 201. 
 
 ^Ante, p. 49; Plumley v. Massa- 
 
PEOHIBITION UPOIT THE STATES. 
 
 195 
 
 Statutes regulating the pressure at -which natural gas or 
 petroleum may be transported have also been declared un- 
 constitutional where their effect has been to prevent the 
 transportation of gas or petroleum out of the State.^ 
 
 Taxation upon the act of entering or leaving a State may 
 often come within the constitutional prohibition against State 
 duties on tonnage as weU as within the implied prohibition 
 of the commerce clause.' 
 
 Conditions Imposed upon Conduct of Interstate Business. 
 By the laws of several States, conditions have been imposed 
 on the right of a foreign corporation to do business or to 
 maintain an action within its limits. The conditions which 
 are most common require that the corporation shall file a 
 copy of its charter with some State officer, and designate an 
 agent upon whom process may be served. Such a require- 
 ment cannot be made a condition of the right of a foreign 
 corporation to engage in interstate commerce,' and, though 
 
 chusetts, 155 U. S. 461; Common- 
 wealth v. Huntley, 156 Mass. 336; 
 State V. Newton, 50 N. J. L. 534; 
 Butler V. Chambers, 36 Minn. 69 ; 
 State V. Addington, 77 Mo. 110. 
 Conf. Commonwealth v. SchoUen- 
 berger, 170 Pa. St. 296; Common- 
 wealth V. SchoUenberger, 156 Pa. 
 St. 201; Commonwealth v. Schol- 
 lenberger, 12 Pa. Co. Ct. Eep. 442; 
 Commonwealth v. Paul, 170 Pa. St. 
 284; Commonwealth v. Paul, 148 
 Pa. St. 559; Commonwealth v. Paul, 
 9 Pa. Co. Ct. Eep. 196; Common- 
 wealth V. Paul, 10 Pa. Co. Ct. Eep. 
 332. 
 
 1 Benedict v. Columbus Construc- 
 tion Co., 49 N. J. Eq. 33; State ex 
 reL Corwin v. Indiana, etc. Gas Co., 
 120 Ind. 575; Avery v. Indiana, etc. 
 Gas Co., 120 Ind, 600. See, how- 
 ever, Jamieson v. Indiana, etc. Gas 
 Co., 128 Ind. 555. 
 
 2 Transportation Co. v. Parkers- 
 burg, 107 U. S. 691. 
 
 sPritts V. Palmer, 133 U. S. 383; 
 Cooper Mfg. Co. v. Ferguson, 113 
 IT. S. 727; Lyon-Thomas Hardware 
 Co. V. Eeading Hardware Co., 31 
 S. W. Eep. 300; Bateman v. West- 
 em Star Milling Co., 1 Tex. Civ. 
 App. 90; Singer Mfg. Co. v. Hardee, 
 4 N. Mex. 676; American Starch 
 Co. V. Bateman, 22 S. W. Eep. 771; 
 Coit V. Sutton, 102 Mich. 324; Gunn 
 V. White Sewing Machine Co., 57 
 Ark 24; Kindel v. Beck & Pauli 
 Lithographing Co., 19 Colo. 310; 
 Murphy Varnish Co. v. ConneU, 33 
 N. Y. Supp. 493; MUan Milling Co. 
 V. Gorten, 93 Tenn. 590; New Or- 
 leans, etc. Packet Co. v. James, 33 
 Fed. Eep. 21; Miller v. Goodman, 
 91 Tex. 41; Cone, etc. Mfg. Co. v. 
 Eosenbaum (Tex. Civ. App.), 45 
 S. W. Eep. 833; Allen v. Tyson- 
 
196 PEOHIBITIOU TJPOIf THE STATES. 
 
 not amounting to a condition, is iavalid with reference to 
 companies ■which have no established office in the State.^ 
 Where, however, a corporation engages in other business 
 than that of interstate commerce, such regulations may be 
 applied to that business.^ 
 
 It has been held also that a statute requiring carriers who 
 bring into the State persons not having a settlement therein 
 to remove them if they fall into distress within a year,' or 
 to give bond to protect the county for expense incurred 
 within two years thereafter for their relief,* are regulations 
 of foreign and interstate commerce in violation of the Fed- 
 eral Constitution. 
 
 It has been held in Iowa that a foreign railroad corpora- 
 tion coming into the State in the conduct of interstate busi- 
 ness may be required to submit to the jurisdiction of the 
 State courts to the exclusion of the Federal courts,' but this 
 rule is opposed to the doctrine of more recent cases." 
 
 Jones Buggy Co., 91 Tex. 23; To- ' See Cooper Mfg. Co. v. Ferguson, 
 
 ledo Commercial Co. v. Glen Mfg. 113 U. S. 737. 
 
 Co., 11 Ohio C. C. R. 153; Haldy v. 2 "Western Paper Bag Co. v. John- 
 
 To Moor-Haldy Co., 3 O. N. P. 48, 1 son (Tex. Civ. App.), 38 S. W. Rep. 
 
 O. S. D. 118; Keating, etc. Co. v. 364; Fritts v. Palmer, 133 U.S. 383; 
 
 Favorite Carriage Co., 13 Tex. Civ. Huffman v. Western Mortgage & 
 
 App. 666; Ware v. Shoe Co., 93 Ala. Investment Co., 13 Tex. Civ. App. 
 
 145; Jung Brewing Co. v. Levisy, 169; 36 S. W. Eep. 306. 
 
 37 S. W. Rep. 889; Shaw Piano Co. ' City of Bangor v. Smith, 83 Me. 
 
 v. Ford (Tex. Civ. App.), 41 S. W. 433. Conf. Mayor of New York v. 
 
 Rep. 198; Brin v. Wachusetts Shirt Staples, 6 Cow. 168; Candler v. 
 
 Co. (Tex. Civ. App.), 43 S. W. Rep. Mayor of New York, 1 Wend. 493; 
 
 395; McNaughtonv.MoGirl (Mont.), Smith v. Turner, 7 How. 383; The 
 
 49 Pac. Rep. 651; Culberson v. Cynosure, 1 Sprague, 88; The Ship 
 
 American Trust Co., 107 Ala. 457. WiUiam Jarvis, 1 Sprague, 485. 
 
 Conf. Holder v. Aultman, 169 U. S. * State v. S. S. Constitution, 43 
 
 81, 68 Fed. Rep. 467. Contra, Tele- CaL 578. 
 
 graph Co. V. Telegraph Co., 67 Ala. 8 Goodrell v. Kreichbaum, 70 
 
 36. Iowa, 363. 
 
 6 Barron v. Burnside, 131 U. S. 186. 
 
CHAPTEE YIII. 
 
 TAXATION. 
 
 It is the power of taxation belonging to the States which, 
 next after the police power, has given rise to most of the 
 cases defining the limitation imposed by the commerce 
 clause, and here, as in the case of the police power, it has 
 been strongly urged that the authority of the State is para- 
 mount. 
 
 In the argument of Cfibbons v. Ogden as to the exclusive- 
 ness of the Federal commercial power, it was said that, as 
 a rule is known by its exceptions, we must assume that a 
 State, in the exercise of its commercial power, might have 
 taxed exports, imports, and tonnage of vessels were it not 
 that such taxes are expressly prohibited by the Constitution ; 
 and when Mr. Chief Justice Marshall answered this argu- 
 ment by saying that the prohibitions referred to were ex- 
 ceptions from the State power of taxation, and not from 
 any commercial power, the inference was drawn that in the 
 exercise of its power of taxation the State was unhindered 
 by implied commercial restrictions. 
 
 This view appears to have had great weight in the supreme 
 court of Pennsylvania in the case of the State Freight Tax^ 
 and was stated by Mr. Chief Justice Taney in the Pobsseng&r 
 Cases with startling distinctness. " I may, therefore, safely 
 assume," he says, " that according to the true construction 
 of the constitution, the power granted to congress to reg- 
 ulate commerce, did not in any degree abridge the power 
 of taxation in the States. . . . They are expressly pro- 
 hibited from laying any duties on imports or exports, ex- 
 cept what may be absolutely necessary for executing their 
 inspection laws, and also from laying any tonnage duty. So 
 
 i62Pa. St. 28S. 
 
198 TAXATION. 
 
 far their taxing power over commerce is restrained but no 
 further." * 
 
 Taxation is Regulation. — It is clear that such an inter- 
 pretation as that for which Mr. Chief Justice Taney con- 
 tended would be wholly incompatible with the controlling 
 purpose of the Constitution to secure commerce among the 
 States from State regulation. There seems to be no doubt 
 that the Convention understood the power of taxation was 
 capable of use, not only as a means of revenue, but also for 
 commercial regulation. 
 
 "The line of distinction," Madison says, "between the 
 power of regulating trade and that of drawing revenue from 
 it, which was once considered a barrier of our liberties, was 
 found upon discussion to be absolutely indefinable." ^ 
 
 Again, in commenting upon the case of MoGullodh v. Ma/ry- 
 Icmd, Madison remarks: " When the distinction between sep- 
 arate powers is disregarded and for the definite connection 
 between means and ends, is substituted legislative discretion 
 as to the former, the legislative power becomes limitless. 
 Ends may shift their character, and will, according to the 
 exigency of the legislative body. "What is an end in one 
 case may be a means in another; may, in the same case, be 
 either an end or a means at the legislative option. The 
 British Parliament in collecting revenue from the commerce 
 of America, found no difficulty in calling it either a tax for 
 the regulation of trade, or the regulation of trade with a 
 view to a tax, as suited the argument or the policy of the 
 moment." ' 
 
 Upon this subject, too, the decisions of the court have 
 been uniform that if the right to impose a tax exists it is a 
 
 17 How. 283, 480; People v. Nag- Speech in the House of Lords as 
 lee, 1 CaL 332. Conf. Federalist, given in Thackeray's Life of Chat- 
 No. XXXH; Johnson v. Drum- ham, voL 3, p. 281. 
 mond, 20 Gratt. 419. ' Letter of Madison to Judge 
 
 2 Letter of Madison to Jefferson, Roane, Sept. 3, 1819. 
 October 24, 1787. Conf. Chatham's 
 
TAXATION. 199 
 
 right whioli in its nature acknowledges no limits. " It may 
 be carried to any extent within the jurisdiction of the state 
 or corporation which imposes it, which the wiU of such state 
 or corporation may prescribe.^ 
 
 " Unless restrained by provisions of the Federal Constitu- 
 tion, the power of the state as to the mode, form and extent 
 of taxation is unlimited, where the subjects to which it ap- 
 plies are within her jurisdiction."* 
 
 "When the State may tax at aU, the manner in which the 
 tax shaU be assessed, and the rate of taxation, however arbi- 
 trary or capricious, are matters of legislative discretion. 
 It is not for the Federal court to suggest in any case that a 
 m.ore equitable mode of assessment or rate of taxation might 
 be adopted than the one prescribed. The only concern of 
 that court is with the validity of the tax; all else is beyond 
 its jurisdiction.' 
 
 The question is affected also by the constitutional right of 
 persons and corporations to the equal protection of the laws. 
 This subject will most often occur in the enforcement of the 
 laws imposing taxes. A person is denied the equal protec- 
 tion of the laws if his property is subjected to a higher rate 
 of taxation than is imposed upon Kke property of others.* 
 
 Any unequal tax resting upon property or persons engaged 
 in commerce may therefore be open to this constitutional 
 objection. 
 
 Taxation upon commerce may, therefore, always be re- 
 garded as regulation,' and the validity of the tax will depend 
 upon the jurisdiction of the taxing power over the subjects 
 upon which the tax falls. The line which marks the limit 
 of State sovereignty in imposing taxation, upon one hand, 
 and the power and duty of the Federal government, upon the 
 
 1 "Weston V. Charleston, 2 Pet. 449, & Canada E. R. Co. v. Vermont 
 466. Central E. R Co., 63 Vt. 119. 
 
 2 State Tax on Foreign-held Bonds, * Opinion of Mr. Justice Harlan 
 15 WalL 300, 319. in Philadelphia Fire Association v. 
 
 3 Delaware Railroad Tax, 18 WalL New York, 119 U. S. 110, 120. 
 
 206, 231; Steamship Co. v. Peimsyl- 5 postal Telegraph Co. v, Adams, 
 vania, 122 U. S. 326-336; Vermont 155 U. S. 688, 695. 
 
200 TAXATION. 
 
 other hand, to protect articles of interstate commerce, is al- 
 ways diflacult to trace. It may be that where the powers 
 most closely approach each other no very satisfactory line 
 of demarcation may be found ; but there are certain well- 
 recognized principles which must control every decision upon 
 the subject. 
 
 Validity of Tax Determined dy its Effect. — The first of 
 these principles is that the question of the constitutionality 
 of a State tax is to be determined, not by the form of the 
 agency through which it is to be collected, but by the sub- 
 ject upon which the burden is actually laid.^ 
 
 " It is a just and weU-settled doctrine established by this 
 court, that a state cannot do that indirectly which she is for- 
 bidden by the constitution to do directly. If she cannot 
 levy a duty or tax from the master or owner of a vessel en- 
 gaged in commerce, graduated on the tonnage or admeasure- 
 ment of the vessel, she cannot effect the same purpose by 
 merely changing the ratio, and graduating it on the number 
 of masts, or of mariners, the size and power of the steam- 
 engine, or the number of passengers which she carries. We 
 have to deal with things, and we cannot change them by 
 changing their names." ^ 
 
 It must be shown that the subject of taxation, when de- 
 termined, is within the jurisdiction of the State. " Jurisdic- 
 tion is as necessary to valid legislative as to valid judicial 
 action." ' 
 
 " The sovereignty of a State extends to every thing which 
 exists by its own authority, or is introduced by its permis- 
 sion ; " but it does not extend to those things which are with- 
 drawn by the Constitution of the United States from its 
 operation and control.* 
 
 1 Telegraph Co. v. Texas, 105 IT. S. ^ Passenger Cases, 7 How. 283, 458. 
 
 460, 465; Cook v. Pennsylvania, 97 3 St. Louis v. Ferry Ca, 11 WaXL 
 
 U. S. 566, 573; State Freight Taxes, 433, 430. 
 
 15 Waa 333, 373; Bank Tax Case, *McCTilloughv. Maryland, 4 
 
 3 WalL 300; Bank of Commerce v. Wheat. 316. 
 New York State, 3 Black, 630. 
 
TATTA TTmsr, 201 
 
 Upon interstate commerce the State can lay no tax in any 
 form, and the reason is that such tax is a burden on inter- 
 state commerce, and amounts to a regulation of it, which be- 
 longs solely to Congress.^ 
 
 In every case of this character the determining considera- 
 tion is to be found in the effect of the tax; that is, in the 
 answer to the question whether the tax is a burden or re- 
 striction upon communication between the States. A tax 
 upon the property of agents engaged in interstate commerce 
 having no such necessary effect, and leaving them free to 
 discharge the duties they have undertaken to perform, may 
 rightfully be laid by the States. A tax upon their operation 
 is a direct obstruction to the exercise of powers protected by 
 the Federal Constitution which no State may create.' 
 
 In MoGulloch v. Maryland "the tax held unconstitutional 
 was laid upon the notes of the bank. The institution was 
 prohibited from issuing notes at all, except upon stamped 
 paper furnished by the State, and to be paid for on delivery, 
 the stamp upon each note being proportioned to its denomi- 
 nation. The tax, therefore, was not upon any property of the 
 bank, but upon one of its operations, in fact, upon its right 
 to exist as created. It was a direct impediment in the way 
 of a governmental operation performed through the bank as 
 an agent. It was a very different thing, both in its nature 
 and effect, from a tax on the property of the bank. No 
 wonder, then, that it was held illegal. But even in that 
 case the court carefuUy limited the effect of the decision. 
 ' It does not extend,' said the Chief Justice, ' to a tax paid upon 
 the real property of the bank in common with the other 
 real property in the State, nor to a tax imposed on an interest 
 which the citizens of Maryland may hold in the institution, 
 in common with the other property of the same description 
 throughout the State. But this is a tax on the operations of 
 
 iLeloup V.Mobile, 127 U.S. 640; 2 Railroad Co. v. Peniston, 18 
 Eobbinsv. Taxing District, 120 U.S. Wall. 5. 
 489; Simmons H. Co. v. McGuire, 
 89 La. Ann. 84& 
 
202 TAXATION. 
 
 the bank, and is, consequently, a tax on tlie operations of an 
 instrument employed by the government of the Union to 
 carry its powers into execution. Such a tax must be uncon- 
 stitutional. Here is a clear distiaction made between a tax 
 upon the property of a government agent and a tax upon 
 the operations of the agent acting for the government.' " ' 
 
 " In Osborne v. The Bcmk, the tax held unconstitutional 
 was a tax upon the existence of the bank, — upon its right 
 to transact business within the State of Ohio. It was, as it 
 was intended to be, a direct impediment in the way of those 
 acts which Congress for National purposes had authorized 
 the bank to perform. For this reason the power of the State 
 to direct it was denied, but at the same time it was declared 
 by the court that the local property of the bank might be 
 taxed, and as in McGulloch v. Ma/rylcmd, a difference was 
 pointed out between a tax upon its property and one upon 
 its action." ^ 
 
 Taxation on acts of trade between the States is always 
 inadmissible.' 
 
 Conflict in the Decisions. — The enunciation of the fore- 
 going rules, however, helps little to an understanding of the 
 actual position of the courts upon this subject. In consider- 
 ing the various cases which have arisen respecting the legality 
 of State legislation in its effect upon interstate commerce, 
 and especially with regard to the exercise of taxing power, 
 there is a conflict, both in the decisions and in the grounds 
 upon which they rest. 
 
 Although the rule laid down in Cooley v. Board of Wa/r- 
 dens, supplemented by the statement that it is not every- 
 thing that affects commerce that amounts to a regulation of 
 it within the meaning of the Constitution,* was supposed to 
 
 1 Railroad Co. v. Peniston, 18 'Ex parte Brown, 48 Fed. Eep. 
 Waa 5, 35. 435, 448. 
 
 ^Eailroad Ck). v. Peniston, 18 ^Munn v. Illinois, 94 U.S. 135; 
 WalL 5, 85. State Tax on Bailroad Receipts, 15 
 
 Wall 398. 
 
TAXATION. 203 
 
 afford a practical guide to the solution of questions arising 
 under tlie commerce clause, yet the apparent uncertainty 
 since those decisions is, perhaps, greater than before. As 
 was said in Rcdlroad Co. v. Husen^ " it is sometimes diffi- 
 cult to define the distinction between that which merely 
 affects or influences, and that which regulates or furnishes 
 a rule for conduct." It is because of this difiB.culty that the 
 rule has largely lost its usefulness. 
 
 It is said, for instance, that State regulations may not act 
 upon subjects of commerce before they have passed from 
 first hands and original packages ; and yet taxation upon 
 such packages is sustained in Brown v. Houston; ^ and in 
 Patapsco Ouomo Co. v. Boa/rd of Agricultnire ' they were 
 held subject to State inspection laws, while in the case of 
 Sanders * a similar regulation was held invalid. 
 
 It has been said that no tax may be laid upon receipts 
 derived from interstate commerce, for that would be a direct 
 tax upon interstate commerce ; ^ and yet, at the same time 
 that this rule was announced, it was suggested that these 
 receipts might be taxed if included in a "general income 
 tax;" and in Majme v. Grand Trunk RmVroad Co^ a tax 
 measured by gross receipts was sustained. 
 
 It has been said that no State jurisdiction whatever exists 
 over property in transit through the State ; and yet a tax upon 
 such property was sustained in Pullmam?s Palace Oa/r Co. v. 
 TwomhVy^ and in other recent cases.' 
 
 The Pickard case ' holds that an occupation or franchise 
 tax upon the business of engaging in commerce is a direct 
 tax upon an operation of commerce, within the constitutional 
 prohibition; and yet a State tax levied upon an interstate 
 carrier was recently sustained because it was levied " for the 
 
 1 95 U. S. 465, 473. ' 39 Fed. Rep. 658. 
 
 2 114 U. S. 633. 8 PuUman's P. C. Co. v. Common- 
 
 3 53 Fed. Rep. 690. wealth, 141 U. S. 18, 36. 
 
 < 53 Fed. Rep. 803. » Pickard v. Pullman Co., 117 U. S. 
 * Steamship Co. v. Pennsylvania, 34; Tennessee v. Pullman Co., 117 
 
 133 U. S. 336. U. S. 51. 
 6143U. S. 317. 
 
204 TAiiTION. 
 
 privilege of exercising its franchise within the State of 
 Maine." ^ 
 
 Out of this field of contradictory decisions, of which the 
 Supreme Court itself has said that " it may be admitted that 
 the court has not always employed the same language, and 
 that aU of the judges of the court who have written opinions 
 for it may not have meant precisely the same thing," ^ it is 
 possible to determine the rule which the court has followed 
 in its decisions only by reference to the history of the doc- 
 trines which have attended the development of the commerce 
 clause. 
 
 Three Periods of Development. — This history may be di- 
 vided into three periods. 
 
 The first begins with Gibbons v. Ogden and ends in 1851 
 with Oooley v. The Port Wardens. Gibbons v. Ogden decided 
 that the Federal power over commerce is a unit and exclu- 
 sive of all State authority over commerce among the States 
 or with foreign nations. This absolute rule found its con- 
 sistent and necessary development in Brown v. Marylcmd. 
 
 The second period, beginning with Oooley v. The Port Wa/r- 
 dens, is marked by a slow return to the old absolute rule, and 
 finds its extreme statement in Leisy v. Ha/rdwi and Bobbins 
 V. Tawmg District. 
 
 Cooley V. The Port Wa/rdens decided that the Federal power 
 was no longer to be regarded as exclusive of all State juris- 
 diction throughout its whole scope. The Federal power 
 after 1851 was regarded as divided into two fields; one being 
 national in its character, exclusive of State jurisdiction, and 
 the other field being one of jurisdiction over matters of local 
 interest in which the States could act until superseded by 
 Federal authority. The purpose of the commerce clause, it 
 was said, was to prevent conflicting and discriminating State 
 legislation, and the construction necessary for this purpose 
 
 1 Maine v. Grand Trunk Ry. Co., 240; Postal Telegraph Co. v. Adams, 
 
 143 U. S. 317. 155 U. S. 688, 695. 
 
 2 Fargo V. Michigan, 131 U. S. 330- 
 
TAXATIOK. 205 
 
 would thereafter be adopted; but beyond this no absolute 
 rule was suggested. Wood/ruff v. Parham was as consistent 
 and necessary a development of this rule as Brown v. Ma/ry- 
 Icmd was of the rule announced in Gibbons v. Ogden, 
 
 It soon became apparent, however, that discrimtaation 
 was very difficult to detect, and might often exist ia fact in 
 a law which forbade it. A tax, for instance, upon all freight 
 moved within the State of Pennsylvania might readily be 
 borne by citizens of that State in its application to their do- 
 mestic transportation, if by so doing they could levy tribute 
 upon the immense traffic between East and West, North and 
 South, which must necessarily pass through their borders. 
 The efforts of Pennsylvania in this direction appear to have 
 begun shortly after the completion of the Cumberland Road 
 through its territory,^ and that these efforts have met with 
 some success is shown by the persistency with which that 
 State maintains this policy of taxation, and the large num- 
 ber of iaterstate commerce cases to which it is a party. 
 
 So if a State should tax imports from other States, equally 
 with domestic articles, it could practically exclude the prod- 
 ucts of other States. North Carolina might tax manufact- 
 ured cloths, and Massachusetts might tax cotton. In either 
 case such a tax would comply with all requirements of equal- 
 ity, and might nevertheless seriously check, or possibly de- 
 stroy, commerce among the States in the article taxed." 
 
 So State taxation upon commercial travelers, although 
 levied with entire equality upon aU commercial travelers 
 within the State, nevertheless bears hardest upon non-resi- 
 dents, and in its practical effect amounts to a discrimination 
 against their trade. 
 
 These difficulties were clearly apparent ia the decision of 
 Bowman v. C. c6 N. W. By. Co.,^ Bobbins v. Taxmg District*^ 
 and L&isy v. Ha/rdm^ where the Supreme Court established 
 
 1 Searight v. Stokes, 3 How. 151. Nelson in ■Woodruff v. Parham, 8 
 
 2 Fertilizing Co. v. Board of Ag- WalL 133. 
 riculture, 43 Fed Eep. 609, 613. See 3 135 U. S. 465. 
 dissenting opinion of Mr. Justice * 130 U. S. 489. 
 
 5 135 U. S. 100. 
 
206 TAXATION. 
 
 an absolute rule of construction. In tliese cases it "was an- 
 nounced that interstate commerce could not be taxed at aU, 
 even though the same burden was laid upon domestic com- 
 merce within the State. "With respect to interstate com- 
 merce the States did not exist. 
 
 Following the announcement of this rule came the aban- 
 donment of the doctrine laid down in Wood/ruff v. Pa/rha/m, 
 and in its place Zeisy v. Ha/rdm, re-established the doctrine 
 which Brown v. Ma/rylcmd established in respect to foreign 
 commerce, and suggested in respect to interstate commerce. 
 The case of the State Tax on Gross Receijpts was overruled 
 in Steamship Co. v. P&rmsylvcmia. Thereafter in national 
 matters there was to be no division of authority whatever. 
 
 The third period in the development of judicial doctrines 
 began shortly after the case of Zeisy v. Ha^dim,, and estab- 
 lishes a new arbitrary rule in place of the absolute rule of 
 Robbvns v. Taxing District. 
 
 It is true that SteamhsTwp Co. v. Pennsylvania, Polhims v. 
 Taxing District and Zeisy v. Hardim, are not, in terms, over- 
 ruled, and many expressions may be f oimd in recent opinions 
 quoting and applying the absolute statements contained in 
 those cases. 
 
 It is still said that interstate commerce cannot be taxed 
 at all, but the expression has no longer the meaning which 
 was given to it in Steamship Co. v. Pennsyhama, PicTc- 
 m-d V. PuUmcm Co., or Z&isy v. Ha/rdm,. The rule that 
 interstate commerce cannot be taxed no longer prohibits 
 taxation of receipts partly or wholly derived from interstate 
 transportation, nor does it prohibit taxation of vehicles 
 which enter the taxing State only in the conduct of inter- 
 state commerce. 
 
 It is clear, therefore, that the rule that interstate com- 
 merce cannot be taxed at aU, and that so far as this com- 
 merce is concerned the States do not exist, is no longer fol- 
 lowed. 
 
 The explanation of the change is probably to be found in 
 the character of the tax which has been sustained in the 
 
TAXA.TIOK. 207 
 
 recent cases, and in the apparent necessity for the establish.- 
 ment of some more equitable division between the powers 
 of State and Federal governments. 
 
 In the Pullman case,i to which reference has been made, 
 it is true that the principal ofB.ce of the company was in 
 Illinois, but its cars were used in transportation throughout 
 the United States, and there was no time when the company 
 had not a large property within the State of Pennsylvania 
 receiving the protection of that State. Its interest there 
 was permanent, although the cars were changing. It seemed, 
 therefore, that some contribution should be made by the 
 Pullman Company to the support of the State government; 
 but nothing could be compelled under the absolute rule, for 
 the busiuess of the company was interstate commerce, and 
 a tax laid upon that business would be a tax upon that com- 
 merce.^ 
 
 The same considerations apply with greater or less force 
 to railway, telegraph and express companies. As was said 
 in Pacifie Eiiypress Co. v. Seibert,^ imless the State could levy 
 a tax upon the receipts of express companies it could levy no 
 adequate tax, for the company had no considerable property 
 in the State outside of its busiuess, which was a large and 
 valuable asset. 
 
 The Rule of Apportionment. — It was sought to solve the 
 embarrassments of this situation by a rule of apportionment. 
 
 In the Pullman case a tax upon all property of the com- 
 pany proportioned to the mileage operated within and with- 
 out the State of Pennsylvania was sustained. Such a rule 
 was felt to be approximately just, and, as the court said, if 
 levied by every State would amount to no more than a fair 
 assessment upon aU the property of the company. 
 
 The rule thus sanctioned has been followed, and taxation 
 has been sustained when proportioned not only to mileage, 
 but also to gross and net receipts, and in other ways. 
 
 1 Pullman Co. r. Pennsylvania, 34; Tennessee v. Pullman Co., 117 
 141 U. S. 18, 36. U. S. 51. 
 
 2 Piokard v. Pullman Co., 117 U. S. 8 143 u. S. 33a 
 
208 TAXATION. 
 
 Its application is not, however, without difficulty, as will 
 be seen on examining the cases. In the first place, it involves 
 a modification of the fundamental rule that a State may not 
 tax property beyond its jurisdiction. Under the rule of ap- 
 portionment the tax is levied upon an aliquot part of aU the 
 property and assets of the company, and is not limited to 
 that actually within the State. 
 
 In Express Co. v. OMo,^ a company having but forty-two 
 thousand dollars' worth of property within the State was 
 taxed upon a valuation of over half a million, because the 
 particular method of apportionment adopted brought about 
 this result. Another method might have produced a differ- 
 ent result. 
 
 It is clear that such a rule as this, as the different State 
 governments are actually applying it, can no longer be re- 
 garded as approximately just. Under existing conditions the 
 States have acquired the power, to a greater extent than at 
 any other time since the adoption of the Constitution, to 
 make the burden of their taxes fall upon persons and prop- 
 erty beyond their jurisdiction. 
 
 It is to be noted that in the principal cases which estab- 
 lished this rule there has been a strong dissenting minority. 
 The difficulties attending its application are great, and it is 
 probable that it will require some qualification. 
 
 The difficulty is increased also by the method which the 
 States have adopted of exercising rights which undoubtedly 
 belong to them. 
 
 Every tax but a poll tax must necessarily fall either upon 
 property or upon operations. An ad valorem tax upon prop- 
 erty actually within the taxing State is a burden to which 
 all property is subject. Exemption from such tax woiHd be 
 discrimination against property not so favored. 
 
 Any other tax than this must fall upon something beside 
 property, and therefore partly or wholly upon operations. 
 An illustration of this is found in the taxation of franchises. 
 A franchise, it is said, is itself property, and may be taxed, 
 
 1165U. S. 794, 166U. S. 185. 
 
TAXATION. 209 
 
 like other property, by the State of its grant. Whatever 
 may be the merit of this proposition from the standpoint of 
 legal decisions, its logic as applied to interstate commerce is 
 certainly open to criticism, and its practical operation is a 
 source of much of the confusion which has been traced in 
 the cases. 
 
 Upon principle, a franchise of incorporation is property to 
 the same extent only that a partnership agreement is prop- 
 erty. The chief practical difference between the two lies 
 in the limited liability of stockholders in a corporation, and 
 in the advantage which a member has of being able to as- 
 sign his interest without working a dissolution of the com- 
 pany. If in the history of the law a royal grant had been 
 required for every partnership contract, the nature of a cor- 
 porate charter would not have been essentially different 
 from that of articles of copartnership, and, except as a his- 
 torical fact, there is now no essential difference in the nature 
 of these contracts as property. 
 
 Where no special rights are granted, such as eminent do- 
 main or exclusive ferriage, but the franchise is a grant to 
 the corporation of such rights only as belong to natural 
 persons under the Constitution, the franchise is not of the 
 nature of property, but is incidental to the use of property, 
 and a means by which commercial operations are accom- 
 plished. When a tax is laid upon such a franchise, it makes 
 no practical difference whether it be said that the burden is 
 imposed upon the right to be or the power to do, — in either 
 event it is something more than a property tax, and is a bur- 
 den upon the operations in which the franchise is used. It 
 is unimportant to a transportation company that the State 
 tax rests upon the State franchise to engage in commerce 
 generally, and not upon its constitutional right to engage in 
 interstate commerce. The distinction is of value only to 
 support an additional tax upon a corporation whose prop- 
 erty has already been taxed as far as the law permits. 
 
 When a State gives to certain persons a corporate fran- 
 chise which includes greater rights than those belonging to 
 14 
 
SIO TAXATION. 
 
 natural persons, — where the franchise, for example, like that 
 of an exclusive right of ferriage, is not a mere means of 
 doing business, but a grant of the business itself; or, like 
 the right of eminent domain, is a grant of special means of 
 acquiring property, — taxation imposed solely upon these 
 special franchises is not a burden upon general operations 
 of commerce. A tax upon the right of eminent domain be- 
 longing to a railroad company, if imposed as a property tax 
 and levied only when and with regard to the extent that the 
 right is exercised, would not be a tax upon the operations 
 of transportation. It rarely happens, however, that it is so 
 levied. Such special franchises are commonly referred to 
 only in argument supporting taxation upon aU the corporate 
 franchises and powers. 
 
 AU taxation, therefore, except an ad valorem tax upon 
 property, iavolves taxation of operations, and, when the op- 
 eration is that of transportation from State to State, faUs 
 upon interstate commerce. So long as such taxes are sus- 
 tained, no consistent and unvarying rule of logic can distin- 
 guish that taxation which is permitted from that which is 
 condemned ; but the effort must, in each case, be to find some 
 practical solution which will prevent unreasonable restric- 
 tions upon interstate transportation. 
 
 The Probable Rule. — An examination of the cases affords 
 an indication of some of the modifications which may be 
 expected in the rule last announced by the Supreme Court. 
 
 It is, of course, true that discrimination in the commercial 
 regulations of any State is a violation of the Federal Con- 
 stitution and within the prohibition of the commerce clause. 
 But the purpose of the framers of the Constitution did not 
 stop with the prohibition of discrimination. There is a large 
 class of cases in which no discrimination appears and which 
 are, nevertheless, clearly unconstitutional. Of these cases 
 a good example may be found in Hall v. Be Cm/r} where 
 the possibilities of conflict between legislation of different 
 
 195 U.S. 485. 
 
TAXATION. 211 
 
 States "was such as to prevent the court from so construing 
 the Constitution as to allow the jurisdiction claimed. "We 
 may expect, therefore, that the construction placed upon the 
 commerce clause will be such that State legislation based 
 upon theories which involve an admission of power in the 
 State to discriminate against citizens of other States, or 
 to enact regulations which would burden traffic with in- 
 consistent or conflicting obligations, will always be uncon- 
 stitutional. 
 
 "We may also expect that the principle wiU be established 
 that taxation or regulation operating upon business or prop- 
 erty without the State, such as was permitted in Eaypress 
 Co. V. Ohio, will be considered as Tivithin the prohibition of 
 the clause.' 
 
 It is apparent that each case in which these questions 
 arise must be judged by itself and with reference to the sur- 
 rounding commercial situation, and of this general situation 
 the court will take judicial notice.^ 
 
 Situs as Affected iy the Character of Regulation. — Situs 
 for purposes of other regulations is not always situs for tax- 
 ation. It is not true that whenever persons or property 
 claim the protection of a State government they are liable 
 to contribute to the burdens of that government. 
 
 Persons or property within a State are always subject in 
 some degree to its police power. The State has the author- 
 ity at once, upon admission of dangerous explosives, to take 
 all steps necessary for protection of persons and property 
 within its jurisdiction. The explosives, therefore, for the 
 purpose of these regulations, acquire situs within the State 
 the instant of passing the State Une. 
 
 Situs for purposes of taxation, however, is not so easily 
 acquired. Persons or property in transit have a right to the 
 protection afforded by the State government, and the com- 
 
 1 Conf. Railway Co. V. Backus, 154 ^Ex parte Brown, 48 Fed. Rep. 
 U. a 439, 445; Stone v. Trust Co., 435. 
 116 U. S. 335. 
 
212 TAXATION. 
 
 pensation which the State derives is to he found in the 
 mutual obligations of different States. It is not until after 
 transportation has ceased that goods brought into the State 
 may be said to have acquired a situs for taxation. 
 
 Taxation tTpoN Peesoh-s in Teansit. 
 
 Although the Articles of Confederation contained the pro- 
 vision that the people of each State should have free ingress 
 and regress to and from every other State, no corresponding 
 provision was expressly inserted in the Constitution; while, 
 on the other hand, the provision that " the migration or im- 
 portation of such persons as any of the States now existing 
 shall think proper to admit, shall not be prohibited by the 
 Congress prior to the year one thousand eight hundred and 
 eight," ^ contained an implication that in the absence of Fed- 
 eral legislation admission of persons within State limits was 
 a matter upon which each State could exercise its own dis- 
 cretion. 
 
 The apparent uncertaiuty thus created was increased by 
 the early construction placed upon the Constitution both by 
 the States and Congress, and by the importance which the 
 slave interest attributed to the maintenance of this power in 
 State governments. . 
 
 In Maryland, Virginia and Connecticut the right to carry- 
 passengers upon stage-coaches was granted by the State as a 
 monopoly, and it appears that these laws were construed as 
 applying to travel between States.^ 
 
 In this action the Federal authorities acquiesced, and it was 
 said that a motion was made in the second Congress to per- 
 mit stage-coaches carrying the mails from State to State to 
 transport passengers also, but was lost as in violation of the 
 rights of the States.' 
 
 1 First clause, see. 9, art. 1, Const. Earitan, etc. E. E. Co. y. Delaware 
 
 2 Perrin v. Sikes, Day's Cases ia & Earitan Canal Co., 18 N. J. Eq. 
 Error, p. 19; MoMaster's History of 646. 
 
 American People, voL 2, p. 60; Gib- 'McMaster's History of the Amer- 
 bons V. Ogden, 9 Wbeat. 1. Conf. lean People, voL 3, p. 60. 
 
TAXATION. 
 
 2ia 
 
 In 1818 permission of the State appears to have been con- 
 sidered necessary in Connecticut to permit the proprietors of 
 the mail stages to carry passengers through that State oa 
 Sunday.^ ^^..j. 
 
 It was in relation to slavery, however, that this question 
 assumed greatest importance. States in which slavery had 
 been abolished forbade the admission of slaves within their 
 territory, and insisted that disobedience resulted in emanci- 
 pation of the slaves. States in which slavery had not been 
 abolished forbade the admission of free persons of color. The 
 constitution of Missouri, at the time that State applied for 
 admission to the Union, contained a provision prohibiting 
 the entrance of free negroes and mulattoes within the limits 
 of the State. It was strongly argued that this provision was 
 unconstitutional. " The simple power of locomotion is all 
 that is asked for now," said Mr. Sargent, of Pennsylvania, 
 " and certainly that must be one of the privileges and im- 
 munities of citizenship." Mr. Sargent's argument did not 
 meet with the approval of the House ; and the State was ad- 
 mitted with this provision in its organic law. Similar pro- 
 visions were enacted and enforced in other States.^ 
 
 Ojie has but to read the account of Mr. Samuel Hoar's 
 mission to South Carolina in 1844, as given by Prof. Von 
 Hoist in his Constitutional History of the United States,' and 
 by Mr. Henry "Wilson in his Eise and FaU of Slave Power in 
 America,* to recognize the immense political significance of 
 the constitutional question. 
 
 This was well understood in 1837, when the case of The 
 City of New York v. MUn * presented to the Supreme Court, 
 for the first time, the question of State jurisdiction over 
 travelers. The law involved was a statute of New York re- 
 quiring the master of a vessel arriving from a foreign country 
 to report to the mayor an account of his passengers. Such 
 
 1 SchoTiler's History of U. S., voL « 1846-1850, p. 128. 
 
 3, p. 54 * VoL 1, pp. 576-586 ; ante, p. 37, n. 1. 
 
 2 Wilson's Rise and Fall of Slave » 11 Pet. 103, 
 Power in America, voL 1, p. 159. 
 
214 TAXATION. 
 
 a statute, viewed either as a local regulation of police, or as 
 falling -witMn the quarantine laws, might have been sus- 
 tained at any period of our constitutional history. 
 
 The discussion in the Supreme Court, however, took a 
 wide range. It was urged that goods are the subject of 
 commerce, persons are not. The decision of the court in 
 Gibbons v. Ogden, that the Federal power excludes all State 
 action, and in Brown v. Marylcmd, that no State had the 
 right to exclude from its jurisdiction any lawful subjects of 
 commerce, had no bearing, it was said, upon the case at bar. 
 
 "How can this apply to persons? They are not the sub- 
 ject of commerce; and not being imported goods, cannot fall 
 within a train of reasoning founded upon the construction 
 of a power given to congress to regulate commerce, and the 
 prohibition to the States from imposing a duty on imported 
 goods." ^ The judgment of the court sustained the statute 
 in question. 
 
 In 184:8 the well-known Poss^Tj^er Cases^ came before the 
 court. These cases involved the validity of a State law re- 
 quiring masters of vessels engaged in foreign commerce to 
 pay a certain sum to a State oflB.cial on account of every 
 aHen passenger brought from a foreign country into the S^te, 
 payment to be made before landing the passenger. The 
 principle of State jurisdiction to exclude foreigners was 
 therefore distinctly asserted, and was necessarily presented 
 to the Supreme Court for decision. In its political relations, 
 the importance of the question had increased in the eleven 
 years which had elapsed since the decision of JN'ew York v. 
 Miln, and had long since passed from the realm of argument 
 to take its place among the questions which must be settled 
 by the irrepressible conflict. Of the nine members of the 
 court eight rendered separate opinions ; the result being that 
 the State tax was declared invalid. It was held by the five 
 justices constituting a majority of the court that the Federal 
 commercial power included intercourse of persons as well as 
 
 iNew York v. Miln, 11 Pet. 103, «7 How. 283. 
 136. 
 
TAXATION. 215 
 
 the transportation of merchandise, and that State legislation 
 which imposed a burden upon transportation of persons was 
 in conflict with the Federal commercial power. 
 
 " It is not a disputable point," said Mr. Justice Wayne, 
 " that under the power given to congress to lay and collect 
 taxes, duties, imposts and excises, it may, in the exercise of its 
 power to regulate comm.erce, tax persons as well as things; "^ 
 and it was argued that the extent of the Federal power 
 marked the limitation of the power of the States. From this 
 judgment four judges dissented. 
 
 Mr. Chief Justice Taney in his dissenting opinion consid- 
 ered that the question involved in the case had long ago been 
 settled. 
 
 " If the people of the several States of this Union reserved 
 to themselves the power of expelling from their borders any 
 person, or class of persons, whom it might deem dangerous to 
 its peace, or likely to produce a physical or moral evil among 
 its citizens, then any treaty or law of congress invading this 
 right and authorizirig the introduction of any person or de- 
 scription of persons against the consent of the State, would 
 be an usurpation of power which this court could neither 
 recognize nor enforce. 
 
 " I had supposed this question not now open to dispute. 
 It was distinctly decided in Holmes v. JeTmison, 14 Pet. SiO; 
 Groves v. Slcmghter, 15 Pet. 449, and in Prigg v. The Gorrtr 
 momoealth of P&rwisyl/oama, 16 Pet. 539. 
 
 " If these cases are to stand, the right of the State is un- 
 doubted. And it is equally clear, that, if it may remove from 
 among its citizens any person or description of persons whom 
 it regards as injurious to their welfare, it follows that it may 
 meet them at the threshold and prevent them from entering." ^ 
 
 It had been argued that the power to regulate commerce 
 was the power to regulate commercial intercourse. This, 
 said Mr. Chief Justice Taney, was but an unmeaning varia- 
 
 1 7 How. 431. ton, 5 Tex. 436; State v. Railway Co., 
 
 2 7 How. 466. Conf. Smith v. Mars- 30 N. J. L. 473. 
 
216 TAXATION. 
 
 tion of words. " Intercourse " does not appear in the Con- 
 stitution, and nothing can be gained by substituting it for 
 the word " commerce." 
 
 The relation of the question at issue to the political 
 questions of the day is seen ta the immediate application of 
 Mr. Chief Justice Taney's argument to some phases of the 
 Kansas-I^ebraska struggle. Northern immigrants began at 
 an early period of that struggle to move iato the new terri- 
 tory in numbers that promised to make Kansas a free State, 
 imless this immigration could be stopped. The interruption 
 was attempted by force, and it was not long before many 
 avenues of approach were occupied by border ruffians whose 
 business it was to prevent free-soO. immigration. 
 
 It was in this state of affairs that President Pierce, in 
 1856, caUed a special session of Congress that an appropria- 
 tion might be made for support of the army. The bill intro- 
 duced iuto the House for this purpose contained a proviso 
 looking to the use by the President of Federal troops to pro- 
 tect persons and property in Kansas, and npon the national 
 highways leading thereto, from unlawful searches and seiz- 
 ures. The debate in the Senate upon this proviso was long 
 and bitter. The national highways leadiag to Kansas ex- 
 tended through every State in the Union. " There are in 
 Massachusetts," said Senator Cass, " national highways lead- 
 ing to Kansas." A proposition that the Federal power 
 should be extended over such roads had never before been 
 heard. "What right has the President to go into Missouri, 
 Iowa, Illinois or Indiana, upon the highways, and say : ' This 
 is a national highway that leads to Kansas ; here I put my 
 soldiers?' The State of Missouri protects individuals on 
 the highways of Missouri, and you have no more right to go 
 there and interfere with her than the English Parliament or 
 the English Government has." * 
 
 The same position was taken by Senator Toucey of Con- 
 
 1 Speech of Senator Cass, Atigiist 33, 1856, Congressional Globe, 34th 
 Congress, 2d Session, pp. 13, 13. 
 
TAXATION. 21T 
 
 neoticut, who was shortly afterwards made Secretary of 
 War. " If the President can protect persons and property 
 in one portion of the country, can he not in another ? Can 
 the President march an army into one of the Southern States, 
 and being of the opinion with some that slavery does not 
 and cannot exist, interfere there and protect persons and 
 property according to these motives ? " ^ 
 
 It would be hard to find an incident illustrating more 
 clearly the incompatibility of slavery and free institutions. 
 No single government could protect both. As long as it 
 was necessary to protect slavery, the commercial develop- 
 ment of the country must wait. Free intercourse between 
 the States was impossible. 
 
 It was not until after the Civil War that the question next 
 presented itself, and then it was brought before the Supreme 
 Court in Oromdall v. Nevada? That case involved the valid- 
 ity of a statute of Nevada laying a tax of one dollar upon 
 every person leaving the State by any railroad, stage-coach 
 or other vehicle engaged in the business of transporting pas- 
 sengers for hire; collection to be made through the owner 
 of the vehicle. 
 
 The question, Mr. Justice Miller said in delivering the 
 opinion of the court, was not to be determined by reference 
 to the provision of the Constitution forbidding any State, 
 without the consent of Congress, to lay imposts or duties on 
 imports and exports, nor by reference to that provision which 
 confers on Congress the power to regulate commerce with 
 foreign nations and among the several States. The limita- 
 tion, it was said, arose from the necessary implications of the 
 whole instrument, and from the rights and duties of the 
 Federal government, its citizens and persons within its juris- 
 diction. The right to free movement and transportation is, 
 it was said, an essential condition of the operation of the 
 Constitution, beyond the power of any State. 
 
 in Joseph V. JSandoIph ' the question concerned the validity 
 
 1 Congressional Globe, 34th Con- 2 g Wall. 35, reversing 1 Nev. 394. 
 gress, 3d Session, p. 21. 3 71 Ala. 499. 
 
218 TAXATIOK. 
 
 of a statute prohibiting the hiring of laborers with a view 
 of taking them out of the State. In deciding against the 
 validity of the statute the court said : 
 
 " There can be no denial of the general proposition that 
 every citizen of the United States, and every citizen of each 
 State of the TJnion, as an attribute of personal liberty, has 
 the right ordinarily, of free transit from, or through the ter- 
 ritory of any State. This freedom of egress or ingress is 
 guaranteed to aU by the clearest implications of the Federal, 
 as well as of the' State constitution. . . . This liberty 
 of interstate transit, thus based on the assertion of personal 
 liberty, is referable to many clauses of the Federal Consti- 
 tution." 
 
 In Warrd v. Mem/land^ it was claimed by Mr. Justice Clif- 
 ford as one of the privileges and immunities of the citizens 
 of the several States, guaranteed to the citizens of each State 
 by article 4, section 2, of the Constitution of the United 
 States. In the Passenger Gases it was recognized by a ma- 
 jority of the Supreme Court of the United States as a right 
 protected by and included in the commerce clause of the 
 Constitution from hostile State legislation, and its existence 
 was admitted by all and denied by none.* 
 
 Since the decision of Gramdall v. JVevada, the same ques- 
 tion has been presented a number of times to the Supreme 
 Court, and it may now be regarded as settled that a State 
 tax upon a traveler, whether passing from State to State, or 
 between the United States and a foreign country, is in con- 
 flict with the Federal commercial power.' 
 
 A State cannot impose such a tax, though the proceeds be 
 used to defray expenses of inspection* or to keep out unfit 
 immigrants ; ' and though the tax is laid on immigrants in- 
 competent to become citizens.' A State cannot impose a tax 
 
 1 13 "Wall 418-430. Transatlantique, 107 TJ. S. 59; Peo- 
 
 2 Clark V. Philadelphia, etc. E. R. pie v. Edye, 11 Daly, 133. 
 
 Co., 4 Houst. (DeL) 158. ' People v. Compagnie Gto6rale 
 
 3 Conf. People v. Brooks, 4 Denio, Transatlantique, 107 U. S. 59. 
 469. « People v. Downer, 7 CaL 169. 
 
 * People V. Compagnie G6nerale 
 
TAXATIOK. 219 
 
 on contracts for foreign, carriage of passengers,^ or a tax on 
 interstate passengers.^ 
 
 In Henderson v. The Mayor of New Yorh^ the coiirt, after 
 brief reference to the Passenger Oases and the diversity of 
 views therein expressed, entered upon a general considera- 
 tion of the conunercial power over travelers, as though the 
 question were then open. The statute involved was a modi- 
 fication of the one which had been before the court in the 
 Miln case and in the Passenger Cases, but instead of requir- 
 ing from the master of a vessel a payment for each passenger 
 landed, it required that the master or owner give a bond for 
 every passenger landed in the city of New Tork, in the penal 
 sum of $300, conditioned to indemnify the commissioners of 
 immigration, and every municipality in the State, against 
 any expense for the relief or support of the person named in 
 the bond, for four years thereafter; the owner or consignee 
 having the right, however, to commute for such bond within 
 twenty-four hours after the landing of the passenger by the 
 payment of $1.60. This statute the court held unconsti- 
 tutional. It had already been announced in United States 
 V. HoUiday that commerce with foreign nations is commerce 
 between citizens of the United States and citizens or subjects 
 of foreign governments. This necessarily involved trade 
 and intercourse between nations and parts of nations. Since 
 the case of GiVbons v. Ogden, transportation of passengers 
 from European ports to the United States had assumed a 
 magnitude and importance of vast extent. The immigrants 
 brought wealth, and still more largely the labor which the 
 country needed. Regulation of this great trade could not 
 be considered as other than a regulation of commerce. 
 
 The same decision was made in CIvy JJimg v. Freemam,,^ 
 and in that case the court said that the implications of the 
 
 1 People V. Eaymond, 34 CaL 493. L. 531, reversing State v. Delaware, 
 
 2 Clark, Treas., v. Philadelphia, etc. R. Co., 30 N. J. L. 473. 
 etc. R. Ca, 4 Houst. (Del.) 158; Dela- ' 93 U. S. 359. 
 
 ware, etc. R. Co. v. State, 31 N. J. L. < 93 U. S. 375. 
 531; Erie Ry. Co. v. State, 81 N.J. 
 
220 TAXATION. 
 
 Constitution placing foreign commerce within Federal con- 
 trol were as clear as those placing interstate commerce 
 within that control. The statute in question was an enact- 
 ment of California, not applying equally to all passengers, 
 but applying to specific classes of passengers physically or 
 morally unfit for admission to the country. As the act was 
 drawn, the court said, a commissioner had but to go aboard 
 a vessel filled with passengers, and, without trial, to point 
 to twenty or a hundred persons and say to the master, " These 
 are idiots or criminals. I have here a hundred blank forms 
 of bonds printed. I require you to fiU me up and sign each 
 of these for $500 in gold, and that you furnish me two hun- 
 dred different men, residents of this State, and of sufficient 
 means, as sureties on these bonds." If the master was un- 
 willing to do this, the necessity for the bond could be com- 
 muted by a small payment in cash. 
 
 Individual foreigners, however distinguished at home, 
 would be helpless before such a commissioner, and it was 
 within the power of a srugle, siUy, obstinate or wicked offi- 
 cer to bring upon the country the enmity of a powerful na- 
 tion, or the loss of an equally powerful friend. Cases might 
 readily arise which would be the subject of international 
 inquiry, if not of a direct claim for redress by a foreign na- 
 tion. Such a claim would fall, not upon the State by which 
 the passenger might have been excluded, but would be made 
 upon the government of the United States. If that govern- 
 ment should get into a difficulty which would lead to war 
 or to a suspension of intercourse, the Nation would suffer, 
 and not the State alone. Or, if it were concluded that pay- 
 ment of a pecuniary indemnity was necessary for satisfac- 
 tion of the injury, the burden would faU upon the Federal 
 government. The States have been forbidden to hold nego- 
 tiations with foreign nations or to declare war, and aU these 
 relations have been assumed by the United States. The 
 Constitution is not an instrument which leaves it in the 
 power of the States to pass laws whose enforcement renders 
 the general government liable for just reclamations, while 
 
' TAXATION. 221 
 
 it fails to proHbit to the States the acts for which the United 
 States is responsible.^ 
 
 The latter argument -was developed in the Head Money 
 Oases ^ and in the Chinese ExclMsion Oase,^ where it was held 
 that Congress had authority to tax or to exclude foreigners, 
 whenever in the judgment of the Federal government the 
 pubUo interests required such exclusion. 
 
 Taxation Upon Peopeett in Teansit. 
 
 In some early cases it was held a State could impose a 
 tonnage tax on interstate freight,* and that it could require 
 charges for carriage of domestic freight to be reduced to the 
 extent of a tonnage tax laid on all freight, though the ob- 
 ject of the statute was to discriminate in favor of domestic 
 traific' 
 
 This question of the right of the State to tax the carrier 
 on account of the thing carried was first directly involved 
 in the Federal Supreme Court in the case of the State Freight 
 Taaa^ On the part of the State it was argued that the rail- 
 road owed its existence to the pleasure of the State of Penn- 
 sylvania. No consideration of interstate traffic could have 
 compelled the State to authorize its erection, and so far as 
 the Federal commerce power was concerned the State could 
 destroy the road and forfeit its franchises. If, then, it was 
 said, the State could refuse to create, and if it could destroy, 
 why could it not tax for existence ? A tax upon a corpora- 
 tion of a certain sum for every ton of freight carried estab- 
 lishes no rule governing intercourse between States. It 
 neither regulates the carrier, the shipper, the purchaser, nor 
 
 1 People V. Downer, 7 CaL 169; wealth, 3 Grant's Cases (Pa.), 138; 
 
 People V. Edye, 11 Daly, 132, See Tonnage Tax Cases, 62 Pa. St. 286; 
 
 People V. Compagnie Transatlan- Commonwealth v. Monongahela 
 
 tique, 107 TJ. S. 59. Navigation Co., 3 Pearson, 872 ; State 
 
 2113 U. S. 580; 18 Fed. Eep. 135, v. N. Y. & E. R. Co., 30 N. J. L. 473. 
 
 and note at end of case. ^ Shipper v. Pennsylvania R. R. 
 
 3 130 U. S. 581. Co., 47 Pa. St. 338. 
 
 * Pennsylvania E. Co. v. Common- « 15 Wall. 232. 
 
222 TAXATIOK. 
 
 the goods transported. Its sole effect is to make the profits 
 of the transporter less. 
 
 In passing upon these arguments the court held that the 
 tax was in substance a tax upon goods in transit, quoting 
 Chancellor Bates of Delaware, in Clwrke v. PMladelpMa, 
 WUmmgton <& BalUmore B. R. Co.} who said of a similar 
 law that it made the position of the carrier substantially 
 " that of one to whom public taxes are farmed out, — and 
 who undertakes by contract to advance to the Government 
 a required revenue, with power by suit or distress to col- 
 lect the like amount out of those upon whom the tax is laid." 
 In the present case this tax feU upon goods which were 
 in process of transportation from State to State. If this 
 jurisdiction existed at all there would be no limit to the 
 rate of taxation which could be imposed. The same power 
 that might impose a tax of two cents per ton upon coal car- 
 ried out of the State might impose one of five doUars, and 
 in either event the imposition, large or small, would be a 
 restraint upon the right to have the subjects of commerce 
 pass freely from one State to another without obstruction. 
 It would hardly be denied that custom-houses on the State 
 frontier laying a duty upon the entry or departure of mer- 
 chandise would be a regulation of commerce, and it was 
 difficult to see any substantial difference between that case 
 and the taxation of goods in transit. 
 
 It was conceded that a State could tax the franchises of 
 its corporations and the right of owners of artificial high- 
 ways, whether such owner be the State or the grantee of 
 franchises from the State. But the tax in question was not 
 laid upon the franchises of the corporation, nor upon those 
 who hold a part of the State's eminent domain. It was laid 
 upon those who deal with the owners of the highways or 
 means of conveyance. The State is not the owner of the 
 roadways nor of the motive power, and the tax is not a com- 
 pensation for the services rendered by the State or by its 
 agents. ToUs and freights are a compensation for services 
 
 l4Houst.(DeL)158. 
 
TAXATioir. 223 
 
 rendered or facilities furnished by the transportation com- 
 pany to a passenger or a shipper. The State, then, has no 
 more power to demand a portion of these tolls than it would 
 have to demand a portion of the rents of land which it had 
 sold. 
 
 The court regarded it, therefore, as established that a State 
 cannot tax freight transported from one State to another, 
 or the carrier because of such transportation. This decision 
 has been adhered to with very little variation.^ 
 
 A Territory cannot lay a capitation tax on live-stock leav- 
 ing or entering its boundaries,^ nor can a State impose a 
 specific tax on telegraph messages transmitted without the 
 State.' But where dealers in cattle, most of which are re- 
 ceived from other States, and sold for shipment to foreign 
 countries, hold them temporarily after their transportation 
 into the State and before sale and reshipment, they may be 
 taxed on their average holdings.* 
 
 Wood being floated on a river from one State to another 
 cannot be taxed by authority of one of the States,^ though 
 under form of a toll.* 
 
 The fact that transit to the point of destination may be 
 interrupted does not of itself bring the property within the 
 taxing power of the State so long as the stoppage is tem- 
 porary and the original movement is not abandoned.'' 
 
 Logs carried to another State, where they are temporarily 
 detained awaiting floatage through it to destination, cannot 
 be taxed in that State.* 
 
 1 Erie R. R. Co. v. State, 31 N. J. 138 U. S. 39; Ratterman v. Western 
 
 L, 531; Commonwealth v. Erie R. Union TeL Co., 137 U. S. 411; Tel- 
 
 R. Co., 1 Pearson, 345; Common- egraph Co. v. Texas, 105 U. S. 460. 
 wealth V. Delaware, L. & W. R. Co., ^ Myers v. Commissioners of Bal- 
 
 1 Pearson, 356; Commonwealth v. timore County, 83 Md. 385. 
 Philadelphia & Reading Ry. Co., 1 5 Conley v. Chedic, 7 Nev. 336. 
 Pearson, 379; State t. Cumberland « Carson River Lumber Co. v. Pat- 
 
 & P. R. Co., 40 Md. 32; Jackson Min- terson, 33 CaL 334 
 ing Co. V. Auditor-General, 33 Mich. ^ State v. Carrigan, 10 Vroom, 35 ; 
 
 488. Ogilvie v. Crawford Coimty, 3 Mc- 
 
 ^Farris v. Henderson, 1 OkL 384 Crary, 148. 
 
 3 Telegraph Ca v. Pennsylvania, 8 Coe v. Errol, 63 N. H. 303. See 
 
224 TAXiTioir. 
 
 It lias been held tliat coal mined in a State and started to 
 another State, but stopped for separation and assortment, 
 cannot be taxed while so detained.^ 
 
 The general rule is, howerer, that when goods are held 
 for any other purpose than for transportation, the transit 
 has ceased. Thus, coal sent by river from Pennsylvania to 
 Louisiana, which, on arrival in Louisiana, was kept on the 
 boats by which it had been transported, and offered for sale 
 and part sold, was subject to State taxation.^ 
 
 Staves purchased by a foreign corporation, but held before 
 shipment to receive a finishing process, are subject to taxa- 
 tion, and cannot be considered as in transit.' So where a 
 lumber company towed logs in rafts from Wisconsin, and 
 stopped them in a bayou of the Mississippi river in Illinois, 
 where they were commonly held for several months, and 
 afterwards sent to the miUs of the company in another State, 
 it was held that the logs were subject to taxation by the 
 State of Illinois.* 
 
 A State cannot refuse to permit any proper subject of 
 commerce to enter or leave its territory; * nor can it impose 
 a tax upon the act of entering or leaving ; * nor can it impose 
 any conditions upon that right.'' 
 
 116 U. S. 517; Conn. River Lumber v. Texas, 105 IT. S. 460; Crandall v. 
 
 Co. V. Columbia, 62 N. H. 286. Nevada, 6 Wall 35; People v. Dow- 
 
 1 State ex reL v. Engle, 34 N. J. L. ner, 7 CaL 169; Salzenstein v. Mavis, 
 425. 91 HL 391 ; State v. Indiana & Ohio 
 
 2 Pittsburg & Southern Coal Co. Oil Co., 133 Ind. 69; Coe v. Errol, 
 V. Bates, 40 La. Ann. 326, 156 U. S. 63 N. H. 803; Jackson Mining Co. 
 577. See Brown V. Houston, 83 La. v. Auditor-General, 33 Mich. 488; 
 843; s. c, 114 U. S. 623. Clarke v. Philadelphia, eta Ca, 4 
 
 3 Standard OU Co. v. Combs, 96 Houst. 158. 
 
 Ind. 179. "New York v. Compagnie, etc. 
 
 * Burlington Lumber Co. v. Wil- Co., 107 U. S. 59; Chy Lung v. Free- 
 
 letts, 118 111. 559. man, 93 U. S. 375; Henderson v. 
 
 SBovraaan v. Eailway Co., 125 The Mayor, 93 IT. S. 259; Brown 
 
 U. S. 465; Western Union TeL Co. v. Maryland, 13 Wheat. 419; New 
 
 1 Cooper Mfg. Co. v. Ferguson, 113 ing N. & W. R. R Co. v. Common- 
 U. S. 737; Norfolk & W. R. Co. v. wealth, 114 Pa. St. 256. 
 Pennsylvania, 136 IT. S. 114, revers- 
 
TAXiTION. 225 
 
 As applied to vessels, such a tax is forbidden as well by 
 the constitutional prohibition upon the States to lay any 
 duty of tonnage as by the commerce clause of the Constitu- 
 tion.' 
 
 A State law requiring all vessels arriving at a port to pay 
 at a certain rate,^ or authorizing port wardens to demand 
 a certain sum for every vessel arriving in the port, whether 
 they are called on to perform service or not,' or imposing 
 duties on aU steam vessels mooring or landing in any part 
 of a port,* is a duty of tonnage, and as such is unconstitu- 
 tional. 
 
 Taxatioit Upoh Peopeett Withut the State. 
 
 A State may tax aU property which has a situs within its 
 limits, regardless of the fact that it may have come from, or 
 is destined to, foreign countries, or another State.^ 
 
 The purpose of the commerce clause is to give all lawful 
 products of each State free entrance to the markets of the 
 world. Once brought into market, they can be subjected 
 to no burdens and claim no privileges by reason of their 
 origin. 
 
 York V. Miln, 11 Pet. 102; Passen- 'Peete v. Morgan, 19 WalL 581; 
 
 ger Cases, 7 How. 283; People v. Steamship Co. v. Tinker, 94 U. S. 
 
 Pacific Mail S. S. Co., 16 Fed. Rep. 338; Harbor Commissioners v. Pash- 
 
 344; Joseph v. Randolph, 71 Ala. ley, 19 S. C. 315. 
 
 499; Carson River Lumber Co. v. ' Steamship Co. v. Port Wardens, 
 
 Patterson, 33 CaL 334; People v. 6 WaU. 31; Hackley v. Geraghty, 
 
 Downer, 7 CaL 169; Webb v. Dunn, 34 N. J. L. 332. 
 
 18 Fla. 721 ; State v, Cumberland & * Cannon v. New Orleans, 20 WalL 
 
 P. R. Co., 40 Md. 32; Mining Co. t. 577; Alexander v. Railroad Co., 3 
 
 Auditor-General, 33 Mich. 488; Con- Strobh. (S. C.) 594; Webb v. Dunn, 
 
 ley V. Chedic, 7 Nev. 336; Erie Ry. 18 Fla. 721; ante, pp. 195, 200. 
 
 Co. V. State, 31 N. J. L. 531; Farris 5Coev.ErroL116U.S.517;Brown 
 
 V. Henderson, 1 OkL 384; Common- v. Houston, 114 U. 8. 632; Standard 
 
 wealth V. Railroad Co., 1 Pearson, Oil Co. v. Combs, 96 Ind. 179; Rie- 
 
 379. Conf. People v. Edye, 11 Daly, man v. Shepard, 27 Ind. 388; Caxrier 
 
 133. V. Gordon, 31 Ohio St. 605. 
 
 1 Transportation Co. v. Farkers- 
 burg, 107 U. S. 691. 
 15 
 
226 TAXATION. 
 
 The rule of transportation, then, is entire freedom from 
 burdens or restrictions imposed by a State. "When trans- 
 portation has ceased, when goods have actually entered the 
 markets of the world, and competition with other commodi- 
 ties in those markets has begun, the rule no longer requires 
 absolute freedom from State regulation. The purpose of 
 transportation is to meet commercial competition, and free 
 competition upon equal terms is the full extent of the con- 
 stitutional protection. An equal tax upon property which 
 has acquired a situs within the State does not, in any proper 
 sense, interfere with the transactions of commerce. 
 
 A large part of the commodities which are sold in every 
 community are brought from other States, and many of these 
 commodities are in competition with goods produced within 
 the State. To hold that a tax could be laid only on domestic 
 articles would give foreign goods an exemption from burdens 
 which are necessarily borne by all other property within the 
 State, and would drive the domestic goods from the market. 
 The general course of decisions has supported this view, and 
 has sustained taxation of goods brought from other States, 
 if taxed like aU other property in the State.^ 
 
 In the application of this rule a distinction was early made, 
 however, between taxation of goods imported from foreign 
 countries and those brought from other States,^ the imported 
 goods in first hands and original packages not being subject 
 to State taxation,' while goods brought from other States 
 were.* 
 
 1 Pittsburgh, etc. Coal Co. v. 46 La. Ann. 145; People v. Moring, 
 Bates, 156 U. S. 577, 40 La. Ann. 3 Abb. Dec. 539. 
 
 336; Brown v. Houston, 114 U. S. ^ Pittsburg, etc. Coal Co. v. Bates, 
 
 632; Woodruff v. Parham, 8 WalL 156 U. S. 577, 40 La. Ann. 326; 
 
 133. Brown v. Houston, 114 U. S. 633; 
 
 2 Cook V. Pennsylvania, 97 U. S. Tracy & Wohi-endroff v. State, 3 
 566; Brown v. Maryland, 13 Wheat. Mo. 3; Hinson v. Lott, 8 WalL 148; 
 419-446; Gelpi v. Schenck, 48 La. Woodruff v. Parham, 8 WalL 123; 
 Ann. 535. Ex parte Hansen, 38 Fed. Eep. 137; 
 
 3 Low V. Austin, 13 WaU. 29; Huddleston, Hubbard & Co. v. 
 Gelpi T. Schenck, 48 La. Ann. 535; Hagerty, 3 Ohio, N. P. 391. Conf. 
 State ex reL v. Board of Assessors, Hinson v. Lott, 40 Ala. 133. 
 
TAXATION. 
 
 22Y 
 
 "The conditions attending tlie sale of commodities im- 
 ported from foreign countries and of goods brought into one 
 State from the others are widely different. It would be im- 
 possible for a merchant dealing only in foreign imports in 
 the original package, to compete in general business with 
 one who kept both foreign and domestic articles for sale. 
 He would be limited to a few lines of goods and, with regard 
 to those, cost of transportation, and, above aU, duties and im- 
 ports would reduce hiTn to an equality with the merchant 
 buying his goods nearer at home, and paying no tax on im- 
 portation." ^ 
 
 With the development of the absolute rule, however, and 
 the announcement that interstate commerce could not be 
 taxed at all, that it made no difference whether the same 
 tax be laid on domestic commerce, a new question presented 
 itself, — whether the complete immunity from taxation which 
 had, since the decision of Brown v. Marylcmd, belonged to 
 dealers in imported articles, would be also extended to deal- 
 ers in articles transported from other States. If, as was 
 held in Zeisy v. Ha/rdm, and RoUbvns v. Shelby Ccnmby Taay 
 ing District, no State could exclude a legitimate article of 
 commerce, or impose even a non-discriminating tax upon its 
 sale, what protection would be afforded to the domestic 
 market in each State thus open to competition with untaxed 
 goods ? It was clear that at this point there was a practical 
 limitation upon the far-reaching logic of the absolute rule. 
 As between competing goods in the same market, under the 
 same governments, taxed without reference to their origin or 
 destination, discrimination must, in the nature of things, be 
 the test of the validity of State taxation. It is a commercial 
 fact, which no decision could ignore, that in such a case it 
 does make a difference whether the same tax be laid upon 
 domestic commerce. This is the explanation of Brown v. 
 Houston^ which was decided at the very period when the 
 
 lEx parte Brown, 48 Fed. Rep. 2114 U. S. 633. 
 435,43a 
 
228 TAXATioifr. 
 
 absolute rule was making itself most strongly felt in the de- 
 cisions of the court. This case appears in the same volume 
 of reports with the Gloucester Ferry case. It was followed 
 in a very short time by the Bowman case and Leisy v. Har- 
 din, and notwithstanding the emphatic announcements in 
 these cases of total want of power in the States to tax inter- 
 state commerce, the United States Circuit Court in North 
 Carolina found within a year the same impossible dilemma 
 which had already confronted the Supreme Court, and re- 
 turned to a construction of the commerce clause by refer- 
 ence to its purpose, sustaining taxation upon articles in orig- 
 inal packages, as they had been brought from other States 
 and while in the hands of the consignee,^ a rule supported 
 by the recent decision of the Supreme Court in Pittshicrg, 
 etc. Coal Oo. v. Bates? 
 
 Such taxation is valid only as it acts upon all property in 
 the State, without discrimination against any on account of 
 foreign origin or use. Where discrimination exists, whether 
 the tax was laid directly or indirectly upon the goods, the 
 sale, or the seller, the law is invalid.' 
 
 So in Myers V. Commissioners of Baltimore Gownty^ a State 
 tax was sustained which was laid upon an average holding 
 of cattle within the State which had been received during 
 the year from "Western States, held by the dealer usually 
 but one day, and sold for export to foreign countries. That 
 these cattle had come from other States and were intended 
 for exportation did not exclude State jurisdiction. They 
 
 lEx parte Brown, 48 Fed. Rep. v. State, 67 Ala. 73; Marshalltown 
 
 435. V. Blum, 58 Iowa, 184; Daniel v. 
 
 2 156 U. S. 577. Richmond, 78 Ky. 542; State v. Pur- 
 
 sWebb6rv.Virginia,103U.S.344; bush, 73 Me. 493; Jackson Mining 
 
 Tiernan v. Einker, 103 U. S. 133 ; Guy Co. v. Auditor, 33 Mich. 488 ; State 
 
 V. Baltimore, 100 U. S. 434; Cook v. v. North, 37 Mo. 464; Van Buren v. 
 
 Pennsylvania, 97 U.S. 566; Welton Downing, 41 Wis. 133. See Tele- 
 
 V. Missouri, 91 U. S. 375; "Ward v. graph Co. v. Massachusetts, 135 U. S. 
 
 Maryland, 13 "Wall. 418; "Weil v. 530; State v. Stucker, 58 Iowa, 496. 
 Calhoun, 25 Fed. Rep. 865; In re <83Md. 385. 
 "Watson, 15 Fed. Rep. 511; Vines 
 
TATTA TTn-NT. 229 
 
 could not be taxed as exports, but, like otber property simi- 
 larly situated with which they were in commercial competi- 
 tion, could be subjected to State taxation.* 
 
 A State may tax capital used in the business of selling 
 imported goods, where it does not appear to be invested in 
 original packages ; ^ and capital which was in money on the 
 date to which the assessment related, though on the date it 
 was actually made the capital was invested in goods which 
 were in interstate or foreign transit; ' and it may tax an in- 
 strument of foreign or interstate commerce * if no burden is 
 imposed on account of that use.' 
 
 A state may tax rolling-stock owned by a corporation of 
 another State, but used in the State in interstate and domes- 
 tic commerce,* but cannot impose a privilege tax for the use 
 of rolling-stock in interstate traffic.'' 
 
 A State cannot tax the property, situated upon an Indian 
 reservation within its limits, of a person licensed by Federal 
 authority to trade with the Indians.* 
 
 Property belonging to a corporation, whether foreign or 
 domestic, engaged in foreign or interstate commerce, may 
 be taxed,' or a tax may be imposed on the corporation on 
 account of its property within a State, and may take the 
 form of a tax for the privilege of exercising its franchises 
 within the State if the ascertainment of the amount is 
 
 iHiiisoiiv.Lott,8"WalL148;Hud- eMarye v. B. & O. Ry. Co., 137 
 
 dleston, Hubbard & Co. V. Hagerty, U. S. 117; Eeinhart v. McDonald, 
 
 2 Ohio, N. P. 291. Conf. Hinson v. State Treas., 76 Fed. Eep. 403. 
 
 Lott, 40 Ala. 133. ' Piokard v. Pullman Car Co., 117 
 
 2 People ex reL Luckemeyer v. TJ. S. 34; Miaot v. P., W. & N. By. 
 
 Coleman, 61 Hun, 626; aflarmed, 133 Co., 3 Abb. (U. S.) 333; Minot v. 
 
 N. Y. 635. See Raguet v. "Wade, 4 Philadelphia, etc. Ey. Co., 18 Wall 
 
 Ohio, 107. Conf. Finney Grocery 306. 
 
 Co. V. Speed, 87 Fed. Eep. 408. 8 Foster v. Board of County Com- 
 
 8 People V. Commissioners, 104 missioners, 7 Minn. 140. 
 
 U. S. 466. ' Union Tow Boat Co. v. Bordelon, 
 
 * Ferry Co. v. PennsylTania, 114 7 La. Ann. 193; People v. Tierney, 
 
 U. S. 196, 204; Morgan v. Parham, 57 Hun, 357; State v. City Council, 
 
 16 WaU. 471. 4 Eich. (8. C. L.) 386. Conf. Com- 
 
 5 Transportation Co. v. Wheeling, monwealth v. D. & H C. Co., 150 
 
 99 U. S. 373. Pa. St. 345. 
 
230 TAXATION. 
 
 made dependent in fact on the value of its property sit- 
 uated therein, and if payment be not made a condition 
 precedent to the right to carry on the business, but its en- 
 forcement left to the ordinary means devised for the collec- 
 tion of taxes.* 
 
 The rule indicated by these decisions is that taxation on 
 property, instrumentalities or subjects of interstate or for- 
 eign commerce is not a regulation of such commerce where 
 the situs of the property is within the limits of the taxing 
 State, and no burden is thereby imposed on transportation 
 or business. But a tax which impedes the operations of 
 commerce, or which is laid directly upon such operations, is 
 a regulation beyond the power of the States. 
 
 Taxation Upon Peopeett of Fedeeal Ooepoeations. 
 
 The general rule which leaves within the jurisdiction of 
 each State the property which has a situs therein extends 
 to the property of Federal corporations. 
 
 It has been strongly urged that there is a distinction 
 between private corporations performing services for the 
 government and public corporations created to carry on 
 governmental operations. The leading case on this subject 
 is McOullough v. State of Maryla/nd? It was there held that 
 the States may not, by taxation or otherwise, retard, burden 
 or in any manner control the operation of constitutional 
 laws enacted by Congress to carry into execution powers 
 vested in the general government. The jurisdiction of the 
 State, it was said, extends to aU. subjects within its sovereign 
 power, but those which do not exist by its authority, and 
 which are introduced into its limits without its permission, 
 are not subject to its control or taxation. In the case of 
 BaMroad Co. v. Peniston ' it was sought to apply these doc- 
 trines to the Union Pacific Kailway Company, which had 
 
 1 Postal Telegraph Cable Co. v. » 4 Wheat. 316. 
 Adams, 155 U. S. 688-696; People ex » 18 Wall 5. 
 reL Piatt v. Wemple, 117 N. Y. 136. 
 
TAXATION. 
 
 231 
 
 been chartered by Congress and bad received large aid from 
 the general government, both in donations and loans. Two 
 of its directors were appointed by the President, and it was 
 charged with the performance of important governmental 
 functions. Notwithstanding these facts, it was held that 
 both its real and personal property were subject to State tax- 
 ation. The majority of the court said that the fact that 
 property within a State belonged to an agent of the Federal 
 government was not sufficient to exempt it from taxation. 
 A large part of the property within the States is necessarily 
 employed in execution of governmental powers. United 
 States mails and other property are carried on almost every 
 railroad. Telegraph lines, steamboats, horses, coaches, street 
 cars and multitudes of manufacturing establishments are 
 employed in the national service. "Were they exempt from 
 liability to contribute to the revenue of the States, their 
 governments would be paralyzed. That a corporation de- 
 rives its charter from Congress does not, so far as concerns 
 exemption of its property from State taxation, distinguish 
 it from other corporations or agencies of the government. 
 The question in every such case is whether taxation is laid 
 upon the means employed by the United States to carry out 
 its powers. 
 
 MoOuUough v. State of Mwrylamd was distinguished upon 
 the ground that the tax there involved was not imposed 
 upon the property of the bank, but upon one of its opera- 
 tions; in fact, upon its right to exist as created. It was a 
 direct impediment in the way of a governmental operation, 
 performed through the bank as an agent ; but even in that 
 case the court carefully limited the effect of the decision, 
 and stated that the doctrine did not apply to a tax upon the 
 real property of the bank in common with other real prop- 
 erty in the State. 
 
 The same doctrine was stated in Thompson v. Padfio R. B. 
 Co} This was the case of a railroad corporation organized 
 
 J 9 Wall 579. See National Bank v. Commonwealth, 9 Wall 353, 363. 
 
232 TAXATION. 
 
 under the laws of Kansas, but authorized by Congress to 
 construct its line through national territory, and given by 
 the Federal government a grant of lands and a subsidy on 
 the security of a second mortgage. The company was also 
 charged with the performance of certain services to the gov- 
 ernment. It was held that the property of this road within 
 the State of Kansas was subject to the taxing power of that 
 State. There is a clear distinction, it was said, between the 
 means employed by the government and the property of its 
 agents. Taxation of the agency is taxation of the means. 
 Taxation of the property of the agent is not always, nor gen- 
 erally, taxation of the means, but is a contribution imposed 
 upon all property alike, — a natural obligation from which 
 no property can escape. 
 
 But a State or Territory cannot tax franchises granted 
 by Congress for the conduct of interstate transportation. 
 "Whether the franchise be one of corporate existence ' or of 
 corporate powers,^ in either event it is beyond the taxing 
 powers of the State.' 
 
 Taxation of Yessels. 
 
 Ships or vessels enrolled and licensed under the United 
 States statutes, if engaged in commerce on navigable waters 
 of the United States, are ships and vessels of the United 
 States.* 
 
 It is possible that other vessels, which it is not required 
 to register or enroll, may also fall within this description; 
 as, for instance, flat-boats or barges of the character men- 
 tioned in the act of June 30, 18T9. Qormnonwealth v. Ameri- 
 ccm Dredging Co? holds that unless unregistered vessels are 
 
 1 Railroad Co. v. Peniston, 18 PacEy. Co., 18 Fed Rep. 385; s. c, 
 WaU. 5. 118 U. S. 394; San Benito County v. 
 
 2 CaUfomia v. Central Paa R. R. So. Pao. Ry. Co., 77 CaL 518. Conf. 
 Co., 127 IT. S. 1; TeL Co. v. Texas, Railroad Co. v. Lesueur (Ariz.), 19 
 105 U. S. 460; Pensacola TeL Co. v. Pac. Rep. 157. 
 
 W. U. Tel. Co., 96 17. S. i ; San Fran- * Transportation Co. v. Wheeling, 
 Cisco V. Tel. Co., 96 Cal. 140. 99 U. S. 373-378. 
 
 3 County of Santa Clara v. So. 5 132 Pa. St. 386. 
 
TAXATION. 233 
 
 permanently located elsewhere they are taxable at the domi- 
 cile of their o-vmers. The act of 1Y89 ^ requires that every 
 vessel shaU be registered in the district to which it belongs, 
 and the third section, of the act of 1Y92 declares that the 
 home port of the vessel shall be that at or near which her 
 owner resides. The question where the home port is depends, 
 therefore, wholly upon the locality of her owner's residence, 
 and not upon the place of her enrollment.' The place of en- 
 rollment is, however, a circumstance to be considered in con- 
 nection with other facts in determining the question of situs. 
 Hays V. PaoiJlG Mail S. S. Co? concerned the situs of an 
 ocean steamer owned and registered in New York, but en- 
 gaged wholly upon the Pacific Ocean, between Panama, San 
 Francisco and ports in Oregon. The steamship company 
 owned a naval dock and ship yards at Benicia, California, 
 and vessels arriving at San Francisco remained no longer 
 than necessary to land their passengers, mails and freight. 
 This was commonly done in one day. They then pro- 
 ceeded to Benicia, and remained for repairs and refitting 
 until the commencement of the next voyage, usually ten or 
 twelve days. It was held that the vessel upon which the 
 question arose had its situs for taxation in New York. If 
 California could impose the tax in question, it was said, any 
 other State into whose ports the vessel entered might alsa 
 impose a tax. The delay in other ports might not be as 
 great as the delay at San Francisco, but that is determined 
 wholly by accident, depending upon the amount of business 
 to be transacted at the particular port, the extent of neces- 
 sary repairs, etc. In any event, the vessel would be within 
 the jurisdiction of any State into whose ports she entered 
 temporarily, and for a purpose wholly excluding the idea of 
 permanently abiding in the State or changing her home 
 port.* 
 
 1 1 Stat. L. 55. 4 People ex reL Pacific Mail S. S. 
 
 2 St. LoTxis V. Ferry Ca, 11 Wall Co. v. Commissioners of Taxation, 
 
 423-431; Gimther v. Baltimore, 55 58 N. Y. 243; People v. Niles, 35 
 
 Md. 457. CaL 283. 
 
 817 How. 597. 
 
234 TAXATION. 
 
 In St. Zoids V. Ferry Co} a question arose as to the right 
 of St. Lords to tax vessels which were enrolled at that 
 port. It was shown that they belonged to a corporation of 
 Illinois, and that the minor officers of the ferry company, 
 such as its engineers and pilots, lived in Illinois. The com- 
 pany had, however, an office in St. Louis, where its principal 
 officers lived and where the ordinary business meetings of 
 the directors were held. The boats were, by municipal or- 
 dinance, prohibited from remaining at the St. Louis wharf 
 longer than ten minutes at a time. It was held that the 
 enrollment at St. Louis did not fix the situs of the boats at 
 that port, but that, the owner being a corporation of Illinois, 
 the boats must be regarded as having their home port in 
 Illinois at the port nearest the principal office of the corpo- 
 ration in that State, and were not subject to taxation in 
 St. Louis. 
 
 A similar decision was rendered in Orahamh v. St. Joseph,^ 
 where the question concerned the situs of vessels which be- 
 longed to a corporation of Illinois, and plied, except during 
 the winter-time, when they were kept in Michigan, between 
 Chicago, Illinois, and St. Joseph and Benton Harbor, Michi- 
 gan. In this case it was held that the vessels were taxable 
 only in Illinois. 
 
 Situs of a vessel being once fixed is not lost by mere ab- 
 sence and emplojmient elsewhere, but continues until a new 
 situs has been legally acquired.' 
 
 In I^aUonal Dredgmg Co. v. State * a tax was levied by 
 the State of Alabama upon a sea-going tug-boat owned by 
 a corporation of Delaware and registered at the custom- 
 house at Wilmington. It was strongly argued that, under 
 the rule fixing the situs of vessels, the tax in question could 
 
 111 "Wall 438. EUen Holgate, 30 Fed. Eep. 135; 
 
 2 67 Mich. 652. City of Newport v. Berry, 14 Ky. 
 
 ' Gloucester Ferry Co. v. Pennsyl- L. K. 29 ; Gunther v. Mayor of Balti- 
 
 vania, 114 U. S. 196; Transportation more, 55 Md. 457; Commonwealth 
 
 Co. V. Wheeling, 99 U. S. 273; Mor- r. Dredging Co., 122 Pa. St. 386. 
 gan V. Parham, 16 WaU. 471; The ^99 Ala. 463. 
 
TAXATION. 235 
 
 not be sustained. It was shown, however, that the tug-boat, 
 with other property belonging to the dredging company, 
 had long been engaged upon a large dredging contract at 
 Mobile, and that the work would require her continued 
 presence at that place for an indefinite period. The court 
 said, while there were many cases holding that a vessel could 
 be taxed only at the port of registry, nevertheless they all 
 proceeded upon the theory that the vessels were never in a 
 foreign jurisdiction except temporarily, and as an incident 
 to the commerce to which they were devoted. In the case 
 of the steam-tug these considerations did not apply. It 
 was not engaged in commerce, but was used wholly within 
 the State of Alabama, where it was kept not temporarily, 
 but indefinitely. It was therefore held to be a part of the 
 mass of property within the State. The question of situs, 
 it was said, is finally one of fact; and where this fact is 
 shown, neither foreign registry nor foreign ownership can 
 change it. 
 
 It is very doubtful whether this case can be reconciled 
 with the Federal law on the subject. No vessel has more 
 than one home port, and that is fixed by the statute at the 
 port nearest the residence of the owner. At that place the 
 vessel must be registered and taxed. A rule which fixes 
 situs at the actual location of the vessel is inconsistent with 
 a rule which disregards actual location and determines situs 
 by reference only to the residence of the owner.' It has been 
 argued that national vessels enrolled and licensed under the 
 Federal laws to carry on interstate commerce are not sub- 
 ject to State taxation. It is clear that no duty of tonnage 
 may be laid by any State,^ and this constitutional prohibition 
 applies not only to duties measured by the capacity or use of 
 the ship or vessel on which it is laid, but to any tax or duty 
 laid upon the vessel as an instrument of commerce.' 
 
 1 Johnson, Collector, v. Debary- ' Steamship Ca v. Port "Wardens, 
 Baya Merchants' Line, 37 Fla. 499. 6 WaE 31. 
 
 estate Tonnage Tax Cases, 13 
 •WalL204 
 
236 
 
 TAXATION. 
 
 "Where no tonnage tax is levied, however, vessels, whether 
 engaged in foreign or interstate commerce, may be taxed by- 
 State authority as property, provided that the tax is levied 
 where the vessel has its situs and is valued as other property 
 in the State, without discrimination on account of its employ- 
 ment,^ and such a tax is not forbidden by the free navigation 
 clause of the Ordinance of 1Y87.^ 
 
 A State may impose a tax on capital invested by residents 
 in ships which have their situs in. the State, though used in 
 interstate or foreign commerce,' or capital so invested by its 
 corporations.* 
 
 Taxation Upon Domestic Commeece. 
 
 Domestic commerce which does not cross State lines is 
 subject to State control, and the right of engaging ia this 
 commerce may be taxed or otherwise regulated by the State. 
 
 The imposition of heavy taxation upon domestic commerce 
 may of course increase the expense of interstate transporta- 
 tion. Carriers are generally compelled to have their agen- 
 cies and officers and to maintain property within the States 
 through which they operate, whether the business conducted 
 be interstate or interstate and domestic. If, as a result of 
 State legislation, their operation be confined to interstate 
 transportation, this business will be burdened with an ex- 
 pense which would otherwise be divided between the two 
 classes. iN'o case can be found, however, in which State 
 regulation or taxation of purely domestic commerce has 
 been declared invalid for that reason. 
 
 The State may not, however, so measure its taxation upon 
 
 1 Wiggins Ferry Co. v. East St. ^Perrysv.Torrence, 8 Ohio, 531. 
 
 Louis, 107 U. S. 365; Transportation 3 State ex reL Eavenal v. City 
 
 Co. V. WheeUng, 99 IT. S. 273; Mor- Council of Charleston, 4 Eich. (S. C.) 
 
 gan Y. Parham, 16 Wall. 471 ; Hayes 386. 
 
 V. Pacific Mail 8. S. Co., 17 How. 596; * People ex rel. United States & 
 
 Lineham Ry. Transportation Co. v. Brazil Steamship Co. v. Commis- 
 
 Pendergrast, 70 Fed. Rep. 1; City of sioners of Taxes and Assessments, 
 
 Newport V. Berry, 14 Ky. L. Rep. 39 ; 48 Barb. 157 ; Union Tow Boat Co. 
 
 Howell V. State, 3 Gill (Md.), 14. v. Bordelon, 7 La. Ann. 193. 
 
TAXATION. 237 
 
 domestic carriage as to discriminate against interstate com- 
 merce. So in E!»pr68s Go. v. Allen} a license tax laid by 
 the State of Tennessee upon express companies carrying 
 packages from point to point within the State, the tax to be 
 $1,000 if the lines operated by the company did not exceed 
 one hundred miles in length, and $3,000 if the mileage op- 
 erated were longer, was held invalid. It was recognized 
 that the tax might be escaped by refusing to do domestic 
 business, but this, it was said, would not save the statute. 
 
 In the absence, however, of any element of discrimination, 
 matters of domestic comm.erce are not brought within Fed- 
 eral control because of the indirect effect which may result 
 to interstate commerce.^ 
 
 Furthermore, the fact that domestic business is conducted 
 over nulitary or post roads of the Federal government does 
 not necessarily remove it from State taxation.' 
 
 In. FicMen v. Taarnig District * it seems to have been con- 
 sidered that a State could lawfully require an agreement to 
 pay a tax on total gross receipts, including those derived from 
 interstate business, as a condition for a grant of license to do 
 the business of a broker within the State. , 
 
 Taxation Upon Capital Stock. 
 
 A tax upon the capital stock of a corporation at an ap- 
 praised value falls upon all its property and assets,' includ- 
 ing its franchises* and business.' From a purely logical 
 
 i39Fed.Eep. 713; Commonwealth Fed. Rep. 419; Moore v. City of 
 
 V. U. S. Express Co., 92 Ky. 38. Eufaula, 97 Ala. 670; Philadelphia 
 
 Centra, KnoxviUe, etc. Ey. Co. v. v. Tel. Co., 67 Hun, 31; TeL Co. v. 
 
 Harris, 99 Tenn. 684 City of Fremont, 39 Neb. 693, 43 
 
 2 Osborne v. Florida, 164 U. S. 650 ; Neb. 499. 
 Moore v. City of Eufaula, 97 Ala. n45 U. S. 1. 
 
 670; Alabama G. S. E. Co. v. City * Commonwealth v. Standard OU 
 
 of Bessemer, 113 Ala. 668; TeL Co. v. Co., 101 Pa. St. 119, 145, and cases 
 
 City of Fremont, 43 Neb. 499; TeL cited; Bank Tax Case, 3 WalL 300. 
 
 Co. V. City of Fremont, 39 Neb. 693. « State Eailroad Tax Cases, 93 
 
 3 Postal TeL Co. v. Charleston, 158 U. S. 575. 
 
 U. S. 693; St. Louis v. TeL Co., 148 fPuUman's Palace Car Co. v. 
 U. S. 93; TeL Co. v. Charleston, 56 Central Transportation Co., 171 U.S. 
 
238 TAXATION^. 
 
 standpoint, therefore, it -would follow that such a tax could 
 be imposed only by a government whose jurisdiction ex- 
 tended over each one of the three subjects upon which the 
 tax falls. Jurisdiction is as necessary to valid legislative as 
 to valid judicial action.' 
 
 As a practical fact, however, the rule in regard to taxa- 
 tion of capital stock has not been so strictly applied either 
 in the case of domestic or foreign corporations. 
 
 Capital Stock of Domestic Corporations May ie Taxed. — 
 A tax upon the entire capital stock of a corporation engaged 
 in domestic or foreign commerce may be laid by the State 
 under whose law the corporation is chartered. The right of 
 the State to lay such a tax is derived from its personal juris- 
 diction over the corporation,^ and therefore the fact that 
 some of the property of the company is situated in other 
 States, and subject to taxation there, will not invalidate the 
 tax upon its capital stock.' 
 
 Tax Upon Capital Stock of Consolidated Corporations. — 
 The rule which is applied in the case of domestic corpora- 
 tions is also applied to taxation of capital stock of consoh- 
 dated companies existing under the laws of different States. 
 In Ashley v. Rya/n * the question concerned the validity of a 
 statute of Ohio requiring payment to the Secretary of State 
 of a fee of one-tenth of one per cent, upon the entire capital 
 stock of a consolidated company existing under the laws of 
 Missouri, Illinois, Michigan and Indiana, as a condition pre- 
 cedent to the grant of charter under the laws of Ohio. In 
 this case the capital stock of the corporations organized in 
 the States outside Ohio amounted to over $51,000,000, while 
 
 188; Gloucester Ferry Co. v. Penn- U. S. 575; Cable Co. v. Attorney- 
 
 sylvania, 114 U. S. 196, 209. General, 46 N. J. Eq. 270. ; State v. 
 
 1st. Louis V. Wiggins Ferry Co., Cable Co., 18 Atl. Rep. 581; People 
 
 11 WalL 433. v. Steamship Co., 48 Barb. 157 ; Piatt 
 
 2Maltby v. Reading R. R. Co., 52 v. Wemple, 53 Hun, 434 
 Pa. St. 146. *153U. S. 436, 49OWoSt.501 
 
 » State Railroad Tax Cases, 93 
 
TAXATION. 239 
 
 the capital stock of the Ohio corporation amounted to 
 $700,000 only. In sustaining the tax the court said that the 
 right of incorporation under the laws of Ohio could only be 
 granted by that State, and must depend upon its laws for 
 existence. In seeking to file its articles of incorporation 
 the company was applying for privileges and powers which 
 it could possess only by the grace of the State of Ohio. Hav- 
 ing accepted the act of grace, and taken the advantages 
 which sprang from it, the company could not be permitted 
 to claim the privilege or right granted, and at the same time 
 repudiate the condition by performance of which it could 
 alone obtaiu the privilege which it sought.' 
 
 Capital Stock of Foreign Corporations. — It has been 
 sought to apply this rule to foreign corporations doing busi- 
 ness within the State. The capital stock of a company, it 
 has been said, is part of its organic faculty. When a corpo- 
 ration comes into any jurisdiction to do business, it brings 
 with it its whole organization, including its capital stock. 
 A State has the right to prescribe the conditions on which 
 foreign corporations may enter its jurisdiction ; and when a 
 corporation comes within a State which levies a tax upon its 
 whole capital stock, it impliedly consents to this condition. 
 As to such a State a corporation is both foreign and domes- 
 tic. It is an entity, always having the same charter powers 
 and limitations, and, if it can be said to bring any part of its 
 capital within a State, it must necessarily bring the whole. 
 It cannot change its chartered amount of stock at the State 
 line. 
 
 As applied to corporations engaged in interstate com- 
 merce, this argument has not met the approval of the courts. 
 A corporation, it is held, cannot change its domicile, and it 
 is not accurate to speak of the corporate body itself as enter- 
 ing each State in which it does business. The domicile of 
 a corporation is in the State of its charter ; and when it sends 
 
 1 See also Lumberville Bridge N. J. L. 539. Conf . Ficklen v. Tax- 
 Co. V. State Board of Assessors, 55 ing District, 145 U. S. 1. 
 
240 TAXATION. 
 
 agents to other States to transact business, it no more enters 
 them than any firm or iadividual changes his domicile by 
 employing foreign agents. 
 
 Taxation upon the entire capital stock of foreign corpo- 
 rations engaged in interstate commerce has therefore been 
 held invalid.' 
 
 It is true, however, that a corporation doing business in 
 a foreign State is taxable there to the extent that it has 
 brought its property within the jurisdiction, and the tax 
 may be levied ia form upon the capital stock of the com- 
 pany if proportioned to the property within the taxing State.^ 
 
 This taxation may be based upon the actual valuation of 
 the property withia the State,' or in the case of railroad, 
 telegraph, roUing-stock or express companies, where the 
 property is capable of valuation as a unit, taxation may be 
 apportioned upon a mileage basis, comparing the number of 
 miles operated within the State with those operated with- 
 out, and levying the tax upon the capital stock in the same 
 proportion.* 
 
 Taxation may also be laid upon capital stock in propor- 
 tion to gross or net earnings within the State,^ and it has 
 beep, held a privilege tax can be imposed on a foreign cor- 
 poration engaged in interstate sales, measured by the amount 
 of capital employed by it in the State; * but, however levied, 
 
 1 Gloucester Ferry Co. v. Penn- 69 Fed. Rep. 557; Sanford v. Poe,69 
 sylvania, 114 U. S. 196; Aultman Fed. Eep. 546; Telegraph Ca v. 
 et aL V. Holder, 68 Fed. Rep. 467. Taggart, 141 Ind. 381,163 U. S. 1 ; 
 
 2 Erie Ry. Co. v. Pennsylvania, 31 Pullman P. Car Co. v. Pennsylvania, 
 Wall. 493 ; Commonwealth v. Stand- 107 Pa. St. 156, 141 U. S. 18. 
 
 ard Oil Co., 101 Pa. St. 119. Conf. 5 Express Co. v. Seibert, 143 U. S. 
 
 Philadelphia 'Fire Ass'n v. New 339. 
 
 York, 119 U. S. 110. « People ex reL Parke Davis & Co. 
 
 3 People ex rel. Postal TeL & v. Roberts, Comptroller, 91 Hun, 
 Cable Co. v. Campbell, 70 Hun, 507. 158; Horn Silver Mining Co. v. New 
 
 4 Express Co. v. Ohio, 165 U. S. York, 143 U. S. 305; People ex rel. 
 194, 166 U. S. 185; Telegraph Co. v. Southern Cotton Oil Co. v. Wem- 
 Massachusetts, 135 U. S. 530, 141 pie, 131 N. Y. 64, affirming 61 Hun, 
 U. S. 40; Minot v. Railroad Co., 18 83. 
 
 Wall 339; Telegraph Co. v. Poe, 
 
TAXATION. 241 
 
 the tax must be dependent in fact upon the value of the 
 property situated within the State, and the exaction may not 
 exceed the sum which might be leviable directly thereon. 
 Under this rule every corporation is made to bear its proper 
 proportion of the burdens of the government under whose 
 protection it conducts its operations, while interstate com- 
 merce is not subjected to restrictions or impediments ; ' but 
 a license tax cannot be imposed by a State upon a foreign 
 ■corporation not maintaining a place of business in the State, 
 which makes interstate sales by traveling agents." And a 
 foreign corporation engaged in interstate commerce cannot 
 be required to pay a tax on its capital stock employed out- 
 side the State.' 
 
 Taxatioit of Teahspoetatioit Companies. 
 
 "With the development of large transportation companies 
 operating through different States new questions have arisen. 
 In the case of coaches or wagons the determination of situs 
 for taxation is not of great importance; and as the local 
 travel driving over State lines is commonly about equal on 
 each side of the line, the rule taxing vehicles at the domicile 
 of the owner ordinarily resxdts in giving each State its fair 
 proportion of revenue. 
 
 In the earlier days of railroad transportation this rule 
 could still be applied with substantial fairness. The com- 
 panies were small; and in many ways closely identified with 
 local interests. As consolidation progressed, however, and 
 the companies grew larger, a new situation was presented. 
 In the first place, the transportation companies are, as to 
 most States in which the question has arisen, of foreign 
 ownership, so that they afford an easy means of extraterri- 
 torial taxation; and, in the second place, it has been felt 
 
 1 Telegraph Co. v. Adams, 155 334; Aultman, Miller & Co. v. Hol- 
 U. S. 688, 696. der, 68 Fed. Eep. 467. 
 
 2 Coit & Co. V. Sutton, 103 Mich, s Commonwealth v. Standard Oil 
 
 Co., 101 Pa. St. 119. 
 16 
 
342 TAXATION. 
 
 that in many oases tlie value of their business so much ex- 
 ceeded the value of their property subject to taxation that 
 any tax upon property alone would be inadequate. 
 
 The States have sought, therefore, in some manner to tax 
 this business, and to avoid the effect of the rule which limits 
 the taxing power of the State to the property withia its ju- 
 risdiction. 
 
 The business of all transportation companies, it is said, 
 may be regarded, in a sense, as a single homogeneous unit, 
 and their property, wherever situated, so long as used for 
 this business, may also be considered as a unit for purposes 
 of taxation. It is undoubtedly true that aU property ac- 
 quires its value by its capacity for use. Apply, then, this 
 test to railroad, express or telegraph properties, measuring 
 their value by the extent of their use, and a railroad right 
 of way is no longer valued by the acre, like the farms through 
 which it runs, but is fixed at its actual value, determined by 
 actual earnings. 
 
 The property of telegraph companies is capable of only 
 one use, and its appraisal must have reference to that use. 
 A right of way which consists of a license to plant a pole in 
 the ground and swing a wire in the air is iacapable of valua- 
 tion as real estate without reference to its use for telegraph 
 purposes. 
 
 The same argument applies to express companies and car 
 companies. A large express business may be done with no 
 tangible property but an office desk and a delivery wagon; 
 and for any tax which would seem equal to the amount 
 which the company should pay for the support of the State 
 government, it is necessary to lay something beside this per- 
 sonal property under contribution. 
 
 In the case of a car company the argument appears, per- 
 haps, in its strongest light. It may be that none of its cars 
 acquire a situs in the taxing State, and, unless taxation may 
 be made without reference to the property actually located 
 within the State, no tax could be levied upon the car com- 
 pany at all. 
 
TAXATION. 243 
 
 There* is great force in the argument which is thus ad- 
 vanced to sustain taxation of these companies. It is never 
 possible in appraising property to exclude from considera- 
 tion its capacity for use. On the other hand, in most cases, 
 it is not important closely to analyze the elements of value. 
 In the case of taxation upon the property of interstate car- 
 riers, however, this analysis is necessary, for the property of 
 the carrier is subject to State taxation so long as it is taxed 
 like all other property in the State, while the use to which 
 its property is put is beyond State jurisdiction. It is essen- 
 tial, therefore, that in these cases some distiuction be made 
 between the common value of property for ordinary use and 
 the value which is derived from a special use 'authorized by 
 the Constitution. 
 
 It is no answer to this demand to say that the method 
 under consideration is a method of appraisal alone, — that 
 the property which is appraised and taxed is property within 
 the State; for,' if the appraised value be made equal to the 
 valuation both of the property and the business in which 
 it is used, the tax laid upon this valuation is a tax on the 
 business.^ 
 
 In some cases, when property is of value with reference 
 only to one use, this distinction may be difficult, but there 
 are many cases where it clearly appears. 
 
 In Express Co. v. Ohio,'' for instance, the office desks, de- 
 livery wagons, etc., which were taxed had actual ascertain- 
 able market value, and when this property was valued at 
 thirteen times that amoimt and taxed upon that valuation, 
 the burden of the tax f eU upon the use to which the prop- 
 erty was put. 
 
 In BaMway Co. v. JBaohus ' it appeared that the mileage 
 of the railway in the three States of Pennsylvania, Ohio 
 and "West Yirgiuia was one hundred and seventy-one miles 
 less in the aggregate than its total mileage in Indiana, while 
 its business in the three States named was far more than 
 
 1 Bank Tax Case, 3 WalL 300, « 154 U. S. 431. 
 
 2 165 U.S. 194 
 
244: TAXATION. 
 
 twice as mucli as its business in Indiana. Under these cir- 
 cumstances, a tax levied by Indiana upon the entire capital 
 stock of the railway in proportion to its mileage within and 
 without the State amounted to a tax upon both its property 
 a,nd business. 
 
 It is clear, therefore, that the rule by which aU the prop- 
 erty of interstate carriers is appraised as a, siugle homoge- 
 neous unit with reference to its use is not always capable 
 of application without some of the dangers which attend the 
 application of every absolute rule. 
 
 History of the Cases. — This method of appraisal was first 
 ■considered by the Supreme Court in the case of the Dela- 
 wo/re Rcdlroad Taw} In this case the tax was in form laid 
 upon the capital stock of the railroad in proportion to the 
 mileage within the State. The length of the whole road 
 was, in round numbers, one hundred miles, while the length 
 ia Delaware was twenty-four miles. The tax upon the prop- 
 erty, estimated according to this ratio, would be in Delaware 
 twenty-four one-hundredths of the tax upon the whole prop- 
 erty. It was shown, however, that the value of the property 
 within the State was less than this mathematical proportion 
 of the whole. In passing upon the validity of the tax the 
 court said that, if it were considered as laid upon the prop- 
 erty of the corporation, there would be difficulty in sustain- 
 ing it. The actual character of the tax, however, the court 
 said, was not upon the property, but upon the corporation 
 itself, measured by a percentage of the cash value of a pro- 
 portionate part of the shares of the capital stock. This tax- 
 ation, though arbitrary, was approximately just, and was one 
 which the legislature of Delaware was at liberty to adopt. 
 
 This case, therefore, falls in line with the State Bml/road 
 Taxc Cases? In aU these cases the tax in question was laid 
 by a State upon corporations of its own creation. In the 
 State Bwilroad Tax Cases the value of the road and aU its 
 assets was ascertained by adding together the cash value of 
 
 118 Wall. 306. 292U. S. 575. 
 
TAXATION. 
 
 245. 
 
 the bonds and stock of the company. The result was, as- 
 Mr. Justice Miller said, to lay the tax not only upon the: 
 tangible property of the company, but also upon the right- 
 to use its tangible property in a special manner for the pur- 
 poses of gain. The franchises of the company, being granted 
 by the State, were subject to this taxation, and the method 
 of appraisement was not open to constitutional objection. 
 " It is therefore obyious," said Mr. Justice MUler, "that, when 
 you have ascertained the current cash value of the whole 
 funded debt, and the current cash value of the entire number 
 of shares, you have, by the action of those who above all others 
 can best estimate it, ascertained the true value of the road, 
 all its property, its capital stock, and its franchises ; for these 
 are all represented by the value of its bonded debt and of 
 the shares of its capital stock." ^ 
 
 The result of these cases, however, does not appear to 
 have been considered as changing the rule which entirely 
 excluded from the taxing power of the State the operations 
 of interstate commerce. In the Gloucester Ferry Company 
 case ^ the court refused to sustain a tax upon the entire cap- 
 ital stock of a foreign corporation on account of its prop- 
 erty withiu the State. The land which the ferry company 
 owned in Pennsylvania couM, of course, be taxed as land, 
 but the business of ferriage between States was wholly be- 
 yond the jurisdiction of Pennsylvania. The rule was abso- 
 lute that interstate commerce could not be taxed at all, nor 
 could a method of appraisement be adopted which would 
 involve taxation upon the right of the corporation to use its 
 tangible property in that commerce for the purpose of gain. 
 
 Taxation Upon Telegraph and Telephone Properties. — 
 The first modification of this rule appeared in Tdegraph Co. 
 V. MassoGhusetta? As in most cases making a departure 
 from an established rule, the invasion of principle seemed 
 
 1 93 U. S. 605. Conf. Eailroad Co. 2 H4 u. S. 196, reversing s. a, 98 
 V. Board, eta of Tennessee, 85 Fed. Pa. St. 105. 
 Eep.303. S135U. S. 530. 
 
246 T AyA TTmsr. 
 
 small, and the necessity for some adaptation of the existing 
 doctrine seemed great. 
 
 The case arose upon a statute of Massachusetts levying a 
 tax upon the capital stock of the telegraph company, as- 
 sessed at its market value, in the proportion which its mile- 
 age within the State bore to its total mileage. It was true 
 that such a tax as this fell in part upon the company's fran- 
 chises derived from the commerce clause of the Constitution 
 and from compliance with the act of Congress of 1866. The 
 lines operated by the company were for the most part upon 
 government post roads, and the company had become a gov- 
 ernment agent. These franchises were undoubtedly beyond 
 the taxing power of the State. 
 
 It was also true that the value of the company's capital 
 stock depended largely upon its holdings of property outside 
 Massachusetts, and upon the value of its business and corpo- 
 rate franchises. Its right to maintain offices and land cables 
 in foreign countries, its large holdings of personal property 
 at its principal office, and every contract into which it might 
 enter in other States and countries, contributed to the mar- 
 ket value of its capital stock. This property was all beyond 
 State jurisdiction. 
 
 It is also clear that an assessment upon capital stock at its 
 market value involved taxation upon the business and upon 
 the corporate and other franchises of the company. The 
 annual earnings of a corporation depend not alone upon the 
 value of its tangible property, but also on the good-will of 
 the business, its volume, and the skill of the management, 
 "fhe elements which unite to produce dividends are not aU, 
 or even a majority of them, in the form of tangible propertjj, 
 although they are acquired by investing tangible capital. 
 
 It is true of aU corporations, as it is of individuals, that 
 their annual profits are the result not of their property only, 
 but of their skill, experience and economy in handling their 
 property. To take the illustrations put by Judge Taft, — 
 it certainly could not be said that the annual profits of a dry- 
 goods store capitalized on a basis of six per cent, would af- 
 
TAXATION. ' 247 
 
 ford a guide to the value of tlie real estate, merchandise and 
 capital used in business. 
 
 " Where the property earns the money as real estate earns 
 rent, or as money loaned earns interest, the earnings do de- 
 termine very largely the value of the property; but where, 
 as in a business of an individual or a corporation, the invest- 
 ment is active, instead of passive, there is no necessary relar 
 tion between the value of the tangible property and the 
 earnings. "Would any one claim that the value of the presses, 
 type, press franchises, money capital, and office furniture and 
 other tangible property of a newspaper could be determined 
 by its net earnings, or, if it be a corporation, by the market 
 value of its capital stock ? Clearly not. And why? Because 
 nearly all its capital has been expended in securing circu- 
 lation and advertising patronage, or, in other words, good 
 will." What is true of a newspaper and a dry-goods store 
 is equally true of a telegraph company. Its earnings, and 
 the value of its capital stock, is largely dependent on its good 
 management. Its net earning capacity is also affected by ar- 
 rangements with railroad companies, and by municipal conces- 
 sions of the right to use roads and streets. The market value 
 of its capital stock has therefore no necessary or proper rela- 
 tion to the value of the tangible property of the company.^ 
 
 This has been frequently recognized in decided cases, that 
 shares of stock may be worth much more than the property 
 of the corporation; that the business may be valuable while 
 the visible capital may have little value and dividends greatly 
 out of proportion to the tangible property.* 
 
 IN'otwithstanding this the tax law of Massachusetts was 
 sustained. It was undoubtedly true that the property of the 
 company in Massachusetts, standing alone and appraised at 
 its actual value as land or personal property, was of small 
 value, and possibly, if State taxation were limited to this 
 
 1 Western Union TeL Co. v. Poe, 2 Union Bank v. State, 9 Yerg. 
 61 Fed. Eep. 449, 457; Railroad Co. 490; Cook v. City of Burlington, 59 
 V. Board, etc. of Tennessee, 85 Fed. Iowa, 251. 
 Eep. 303; Pullman's Car Co. v. Cen- 
 tral Transp. Co., 171 U, S. 138. 
 
248 TAXATION-. 
 
 property, the company -would escape its fair share of the 
 public burden. It is Likely that this consideration -weighed 
 largely -with the court, as it did after-wards in Pacifio jE«ypress 
 Co. V. Seibert,^ -when the court remarked that the express 
 company " had no tangible property of any consequence sub- 
 ject to taxation " in the State of Missouri, and that, unless 
 some other method of assessment -were found, the company 
 -would escape its just burden.^ Taxation upon capital stock 
 in proportion to mileage -was deemed " a rule -which, though 
 an arbitrary one, is approximately just," ' and it -was felt, 
 too,thatif this rule "-were adopted by all the States" . . . 
 " the company -would be assessed upon the whole value of its 
 capital stock and no more." 
 
 Taxation of capital stock of foreign corporations in pro- 
 portion to mileage -within and without the taxing State was, 
 therefore, established in the case of telegraph companies.* 
 
 The case in which this rule was announced was, as has 
 been remarked, an extreme one, and it is probable that its 
 character did not then appear as subsequent history ha,s 
 sho"wn it. The rule as stated by the court appeared to be 
 solely a method of appraisement of property -within the State. 
 It could therefore be approved without dissent by the same 
 court — with one exception — ^ which decided the Bo-wmah 
 case, appearing in the same volume of reports with that case. 
 In Postal Telegrwph Co. v. Adwtns, the court, sustaining a 
 privilege tax laid upon a foreign telegraph company for 
 doing business in Mississippi, emphasized the fact that the 
 tax was in substance upon the company's property -withih 
 the State, attd less than it would have been if this property 
 had been subject to a single ad valorem tax.' 
 
 The mjethod of appraisal thus established involved a de- 
 
 1142X1.8.339,354. 40; Attorney-General v. Western 
 
 2 See Telegraph Co. v. City of Union TeL Co., 33 Fed. Efep. 139; 
 Richmond, 36 Gratt. 1. Telegraph Co. v. Norman, 77 Fed. 
 
 3 The Dela-ware Railroad Tax, 18 Rep. 13; Telegraph Co. v. Poe, 64 
 "Wall 331. Fed. Rep. 9, 61 Fed. Rep. 449, 470. 
 
 * Telegraph Co. v. Taggart, 163 'Telegraph Co. v. Adams, 155 
 U. a 1, 141 Ind. 381; Massachusetts U. S. 688, 71 Miss. 555. 
 -T. "Western Union TeL Co., 141 U. S. 
 
TAXATIOir. 2i& 
 
 parture .from principle. Telegraph, companies, like other 
 concerns engaged in interstate commerce, may not be taxed 
 in respect to their business. Taxation of domestic busi- 
 ness has always been permitted,^ but iaterstate business has 
 been protected. A State may not tax messages sent from 
 one State to another,* nor can a State tax the whole business 
 of a telegraph company, without distinguishing between do- 
 mestic and interstate business.' 
 
 These propositions are, it is beUeved, stiU recognized as 
 law, in case of any direct tax upon messages sent from State 
 to State or upon an interstate business. The rule of appor- 
 tionment is therefore inconsistent with the principles upon 
 which these cases were decided. 
 
 Taxation of Boiling Stock. — The rule of apportionment 
 found its next development in the taxation of roUing stock. 
 The court was no longer unanimous in its decision — Mr. 
 Justice Bradley, who did not participate in the decision of 
 Tdegrwph Go. v. Massachusetts, delivering a strong dissent- 
 ing opinion, which had the approval also of Mr. Justice Field 
 and Mr. Justice Harlan. 
 
 It has long been admitted that a State may not tax prop- 
 erty in transit through its borders, because it has no situs in 
 the State ; * or a vehicle which, being owned in another State, 
 
 1 Postal Telegraph Co. V. Charles- reversing 76 Ala. 401; San Fran- 
 ton, 153 U, S. 693; Western Union cisco v. Western Union TeL Co., 96 
 TeL Co. V. Charleston, 56 Fed. Rep. CaL 140; Bradford v. Postal TeL 
 419; Moore v. City of Eufaula, 97 Co., 11 Ey. Corp. L. J. 54 Ct. Com. 
 Ala. 670; Western Union Tel. Co. PL, McKean County, Pa. ; TeL Co. v. 
 V. Fremont, 39 Neb. 693, 43 Neb. Texas, 105 U. S. 460, reversing 55 
 499. Tex. 314 
 
 2 Western Union TeL Co. v. Penn- * Morgan v. Parham, 16 WalL 471 ; 
 sylvania, 138 U. S. 89; Eatterman Hays v. Pacific Mail S. S. Co., IT 
 V. Western Union TeL Co., 137 U.S. How. 597; Pullman S. Car Co. v. 
 411; Telegraph Co. v. Texas, 105 Nolan, 33 Fed. Eep. 376; Ogilvie v. 
 U. S. 460, revei?silig 55 Tex 314; Crawford County, 7 Fed. Eep. 745 ^ 
 Western Union TeL Co. v. State, 63 Central E. E. Co. v. Board of Assess- 
 Tex. 630. ors, 49 N. J. L. 1. 
 
 SLeloup V. Mobile, 137 U. S. 640, 
 
250 TAXATION. 
 
 may make a single trip within, tlie taxing State.^ But maj 
 not the rule be different in the case of property which, al- 
 though owned in another State, is yet kept in continuous 
 and constant use, passing into, out of, or through the State 
 which seeks to subject it to its jurisdiction? Such a case 
 was presented in Sta/ndwrd Oil Co. v. Batchelor^ in which it 
 appeared that the plaintiff had been for over a year piling 
 staves near a railroad track, and shipping from the pile. 
 "While, therefore, it had maintained a pile of staves within 
 the territory of the taxing State for more than a year, it was 
 impossible to determine whether any particular staves had 
 remained in the State for a longer time than necessary for 
 immediate shipment. The court held that aU these staves 
 must be considered as in transit and beyond State jurisdiction. 
 
 The case of railway equipment continually employed in 
 transit across State lines presents the same question. 
 
 On the one hand, it is said that in such a case the taxing 
 State has no jurisdiction over the person of the owner, nor the 
 business in which the property is employed, nor the property 
 itself. As to the latter, it has come within the State while 
 in the act of transportation performed by virtue of a right 
 secured to its owner, not by authority of State law, but by 
 the exclusive jurisdiction of Congress under the Constitu- 
 tion; ' and while so employed it can never acquire a situs for 
 taxation, no matter how constant or continuous may be its 
 use vrithin the taxing State.* 
 
 This reasoning was approved in Bwim, v. Bail/road Co? 
 The property in question, it was there said, was not in a 
 
 1 Pullman's P. C. Co. v. Twombly, peal Tax Court, 50 Md. 397; Irwin 
 29 Fed. Eep. 658-665. See Coe v. v. Railroad Co., 94 IE 105; Appeal 
 ErroU, 116 U. S. 517. Tax Court y. Pullman Co., 50 Md. 
 
 2 89Ind. 1. 453; Pacific R. R. Co. v. 
 
 'PuUmanSo. CarCo. v.Montgom- County, 53 Mo. 17; Bain v. Rail- 
 
 ery County, 33 Fed. Rep. 376. road Co., 105 N. C. 363; Central R. 
 
 « Hays V. Pacific Mail S. S. Co., 17 R. Co. v. Board, 49 N. J. L. 30. 
 
 How. 596; St. Louis v. Ferry Co., 11 Conf. Dubuque v. Illinois Central 
 
 WalL 435 ; People v. Niles, 35 Cal. 383 ; R. R. Co., 39 Iowa, 56. 
 
 Philadelphia, etc. R. R. Co. v. Ap- 6105N. C. 368. 
 
TAXATION. 251 
 
 legal sense situated within the State; it was the property of 
 a non-resident corporation, employed and used by it con- 
 stantly for interstate commerce ; it was not stationary, but 
 constantly passing from one State to another. The fact 
 alone that the property of the defendant was continuously 
 within the State did not give the cars a situs there. Their 
 value was always in the State, because of the steady amount 
 of traflB.c passing over the defendant's road. It is true that 
 such property receives State protection, and has the benefit 
 of its laws, but it is not the subject of taxation, it is said, 
 because the Constitution forbids. 
 
 In Pullmwri's Palace Car Co. v. Twomlly^ Mr. Justice 
 Brewer, then district judge, reached a different conclusion. 
 The duty of the State to protect all property within its lim- 
 its is clear, and equally clear is its correlative right to tax. 
 Protection involves expenditure, and the tax is the owner's 
 payment therefor. A car which has been used solely within 
 the State may therefore be taxed. If it crosses State lines, 
 the duty of protection remains. Has the right of taxation 
 gone? "When an affirmative answer is given to this question, 
 and it is argued that compensation is found in the reciproc- 
 ity between the States, the relation between the States and 
 the owner is overlooked. 
 
 In the case referred to, Mr. Justice Brewer makes a dis- 
 tinction between vehicles of commerce by land and by water. 
 As to the latter, the place in which a vessel is registered is 
 by law its home port and its situs. But as to commerce by 
 land there has been no legislative declaration of equivalent 
 import, and therefore the ordiuary principles of taxation 
 must be applied. Yehicles of transportation by land, used 
 constantly and contiuuously upon a single run, may there- 
 fore acquire a situs for taxation, iadependent of the domi- 
 cile of the owner; and such situs is not destroyed by the 
 fact that the owner, having many vehicles of Uke character, 
 and lines in various parts of the country, from time to time 
 
 l39Fed.Kep. 658. 
 
252 TAXATIOK. 
 
 transfers vehicles from one line to another, provided a con- 
 stant and continuous use is preserved upon a single run. 
 
 This case has met with the approval of the Supreme Court.^ 
 
 The Gloucester Ferry case, it is said, does not control the 
 decision of the question. 
 
 " Commerce on land between the different States is so strik- 
 ingly dissimilar, in many respects, from commerce on water 
 that it is often difficult to regard them in the same aspect in 
 reference to the respective constitutional powers and duties 
 of the State and Federal governments. ISo doubt commerce 
 by water was principally in the minds of those who framed 
 and adopted the Constitution, although both its language 
 and spirit embrace commerce by land as well. Maritime 
 transportation requires no artificial roadway. Nature has 
 prepared to hand that portion of the instrumentality em- 
 ployed. The navigable waters of the earth are recognized 
 public highways of trade and intercourse. No franchise is 
 needed to enable the navigator to use them." . . . "So 
 that State interference with transportation by water, and 
 especially by sea, is at once clearly marked and distinctly 
 discernible. But it is different with transportation by land." ^ 
 
 In PuWmam^s Owr Co. v. Peivnsyl/ocmia^ Mr. Justice Brad- 
 ley, Mr. Justice Field and Mr. Justice Harlan dissented. 
 The cars in question, they said, were in transit like the pas- 
 sengers or freight which they carried, and which also re- 
 ceived the benefit of State protection. A tax on passengers 
 or freight would have been invalid, for it would have re- 
 sulted in discrimination against other States, as was indi- 
 cated in CrandaU v. Nevada, and ia the case of the Btate 
 Freight Taw. 
 
 1 Pullman's Car Co. v. Pennsyl- t. Maryland, 21 Wall 456, 470; 
 vania, 141 U. S. 18; Pullman's Cai? Eeinliart v. McDonald, State Treas., 
 Co. V. Hayward, 141 U. S. 36; Pull- 76 Fed. Rep. 403; Pullman's Car Co. 
 man's Car Co., v. Commonwealth, v. State Board of Assessors, 55 Fed. 
 107 Pa. St 148. Conf. Carlisle v. Eep. 206, 60 Fed. Rep. 37; Railway 
 Pullman's Car Co., 8 Colo. 820. Co. v. Curoh, 17 Colo. 1. 
 
 2 Pullman's Car Co. v. Pennsyl- 8141U. S. la 
 vania, 141 U. S. 18, 24; Railroad Co. 
 
TAXATION. 253 
 
 In Hall V. Americam, Befrigerator Trcmsit Co.^ the doc- 
 trine of tMs case was applied to refrigerator cars which 
 were only transiently within the taxing State, and were not 
 run in fixed numbers or under any continuing contract, or 
 at regular times, or even upon an established route, but were 
 furnished in every instance upon the request of shippers or 
 of the carrier acting for the shipper. It was shown, how- 
 ever, that during the year for which the assessment was 
 made the transit company had owned an average of forty 
 cars within the State, and the court held that these cars 
 should be considered as "habitually used and employed" 
 in the State so far as to authorize taxation upon this average 
 holding. 
 
 Taxation of Kaiusoad Eight os Way. 
 
 In some respects the simplest case that can be put is that 
 of taxation upon real estate. It has at all times a recognized 
 value and fixed situs. The land included in a railroad right 
 of way is large enough for many of the common uses to 
 which land is put. If it be in a city, the lot which the rail- 
 way occupies with its tracks is worth no more than an ad- 
 joining lot. In the country the railway land could be used 
 for farming as adjoining land is used, and, if sold, would 
 bring no more per acre. 
 
 It has been urged, however, that when land is purchased 
 and used by a railway company, it acquires at once an ex- 
 trinsic value as part of a whole, and that this value cannot be 
 determined solely by comparison with adjacent town lots or 
 acre property. The right of way, like a bridge, is a whole, 
 having a special value, and all which goes to make up the 
 whole should be taxed upon the valuation which it has thus 
 acquired. The value of aU land depends largely upon the 
 use to which it can be put, and, in determining the value of 
 a right of way, it is necessary to look at the elements on 
 which the financial condition of the company depends, and 
 
 51 Pao. Eep. (Colo.) 431. 
 
264 TAXATION. 
 
 to consider its traffic as evidenced by its rolling stock and 
 its gross earnings in connection with its capital stock.' 
 
 In Pittsburg, etc. R. R. Oo.i). Backnis^ this method of ap- 
 praisal was applied to railway property, and a certain pro- 
 portion of the capital stock, divided with reference to mileage 
 and gross receipts within and without the taxing State, was 
 held to be subject to State taxation. Some emphasis was 
 laid upon the fact that the statute did not require that the 
 valuation of the property within the State should be abso- 
 lutely determined upon a mileage basis. There might be 
 exceptional cases where terminal facilities in some large city 
 of great value would give to a mile or two in such city a 
 value out of proportion to any similar distance elsewhere on 
 the line of road. Under the statute involved in that case, 
 and which required the appraisers to fix the fair cash value 
 of the railway property, the court said it must be assumed 
 that these elements were duly considered by the appraisers 
 and aUowance made therefor. 
 
 The case does not in terms sustain taxation upon railway 
 property which extends across State lines, when apportioned 
 according to mileage, or in any other way ; but there is prob- 
 ably no reason to suppose that the court intended to qualify 
 the doctrines of Telegra^ph Co. v. MassacJmsetts, or the other 
 cases which the opinion cites. 
 
 An examination of this case suggests doubt whether the 
 assumption of the court that the appraisers had fixed the 
 fair value of the property was in accordance with the facts. 
 It was shown that the mileage of the railroad company in 
 the three States of Pennsylvania, Ohio and West "Virginia 
 was one hundred and seventy-one miles less in the aggre- 
 gate than its total mileage in Indiana. That in those States 
 it owned large and valuable terminal facilities, while it 
 
 1 Columbus So. By. Co. v. Wright, " 154 TJ. S. 431 ; Cleveland, etc. Ry. 
 
 151 U. S. 470, 479, 481, affirming Co. v. Backus, 154 U. S. 439; State 
 
 s. c, 89 Ga. 574; Franklin County v. New York, eta Ey. Ca, 60 Conn. 
 
 V. NashvUle, etc. Ey. Co., 13 Lea 336. 
 (Tenn.), 531-539. 
 
TAXATION. 255 
 
 owned none in Indiana, and that its business in ttose States 
 was more than twice as much as its business in Indiana. 
 Under these circumstances the assumption that these ele- 
 ments were duly considered by the appraisers, and allowance 
 made therefor, seems inconsistent with an apportionment of 
 assets in accordance with mileage. In commenting upon a 
 similar provision of an Ohio statute. Judge Taft said that 
 the courts would not permit injustice to be done to a class 
 of taxpayers by a law which is so worded as to mean one 
 thing to the courts when its validity is attacked, and another 
 thing to the taxing officers when they come to enforce it. 
 " It does not help the law any, to point out that the market 
 value of the stock is only to be used to determine the true 
 value in money of the company's Ohio property; and that 
 if, in fact, the value of stock should have no effect in the 
 estimate, we must give controlling weight to the words 
 which embody the standard of value fixed by the constitu- 
 tion. The board is enjoined to determine the value of the 
 property to be taxed, by using as a guide the value of the 
 capital stock and other rules which shaU enable them to fix, 
 not the true value in money of the company's property, but 
 its true value in money in proportion to the entire property 
 of the company as determined by the capital stock and other 
 rules. In other words, it is merely a legislative declaration 
 that the true value in money of the entire property of the 
 company is determined by the entire capital stock of the 
 company and other rules, and the true value in money of 
 the Ohio part is merely a proper proportion of the value 
 of the entire property thus determined. The only construc- 
 tion which would eliminate the error of the law is one which 
 would require the board ^to ignore the market value of the 
 shares as an element of value. . . . Certain it is, that 
 courts will not permit injustice to be done to a class of tax- 
 payers by a law which is so worded as to mean one thing to 
 the courts when its validity is attacked, and another thing 
 to the taxing officers, when they come to enforce it. Either 
 the law means what the officers construe it to mean, and its 
 
256 TAXATION. 
 
 validity is to be tested on that construction, or they are to 
 be enjoined from enforcing it except as the courts shall con- 
 strue it." * 
 
 Taxation Upon Beidges. 
 
 It has been generally held that bridges spanning waters 
 between States are subject to taxation in each State upon 
 that portion which is within its territorial jurisdiction. It is 
 no defense to an action for such taxation that the property 
 of the bridge company is used entirely for interstate busi- 
 ness, and that the value of its franchises arises exclusively 
 from its business.^ 
 
 The taxing power of the State ends, however, with its 
 territorial Umits.' 
 
 "Where a company was incorporated by New Jersey and 
 Pennsylvania to construct and maintain a bridge across the 
 Delaware river, a tax imposed by New Jersey upon the cor- 
 porate franchise granted by it, levied upon the entire capital 
 stock of the company, was sustained.* 
 
 The territorial limits and jurisdiction of Yirginia, after 
 granting the Northwest Territory to the Federal government, 
 extended to low-water mark on the north side of the Ohio 
 river. Kentucky being subsequently erected as a separate 
 State succeeded to the rights of Virginia, and may tax that 
 part of a bridge over the Ohio river at Louisville, south of 
 low-water mark on the north side of the river.* 
 
 It is permissible, in determining the value of a bridge 
 as in determining the value of all other property, to con- 
 sider its capacity for use. In Bmhjoay Co. v. Backm^ the 
 court put the case of two bridges over the Ohio river, of 
 equal cost, one bridge extending between Cincinnati and 
 
 1 Western Union TeL Co. v. Pee, ' Lumberville Delaware Bridge 
 
 61 Fed. Eep. 449, 463; Cummings v. Co. v. State Board of Assessors, 55 
 
 Bank, 101 U. S. 153. N. J. L. 539. 
 
 ^ Henderson Bridge Co. v. Com- * Louisville Bridge Co. v. City of 
 
 mon wealth, 99 Ky. 633; Henderson Louisville, 81 Ky. 189. See Hender- 
 
 Bridge Co. v. Kentucky, 166 U. S. son Bridge Co. v. Henderson City, 
 
 150. 141 U. S. 679. 
 
 s See St. Louis Bridge Co. v. City e 154 jj. S. 439, 446. 
 of East St. Louis, 121 IlL 338. 
 
TAXATION. 257 
 
 iN'ewport, and anotlier twenty miles below, where there is 
 but a small village on either shore. The value of one of 
 these bridges, it was said, wiU manifestly be greater than 
 that of the other, and the excess of value will spring solely 
 from its larger use. It would be impossible for an assessing 
 board to eliminate from consideration the value which flows 
 from the use and to place the assessment at the sum remain- 
 ing. 
 
 Taxation of Express Oompames. — Attention has been 
 called to the fact that where property extending within and 
 without a State has been considered a unit, and the prop- 
 erty within the State valued as a part of this unit, it was 
 required that the method of apportionment adopted should 
 not be such as to permit the appraisement to exceed the 
 actual value of the property within the State. In Delcma/re 
 Hailway Taxo^ the tax, which would have been invalid 
 if levied upon tangible property, was sustained because it 
 was laid upon corporate franchises derived from the State 
 which laid the tax. In Pittsburg, eta. Hy. Co. v. Backus ^ 
 and Olevelcmd, etc. Sy. Oo. v. Baclcus^ an appraisal of a 
 railroad property within and without Indiana was sustained 
 because the statute did not require that the valuation of the 
 property within the State be made upon the basis of mile- 
 age alone, but that mileage and value of capital stock and 
 other elements of value should be considered in appraising 
 the property actually within the State. 
 
 In Adwms Express Co. v. Ohio * these ILtnitations were 
 abandoned. In that case the express companies were re- 
 quired to make a return to the Auditor of State, setting forth, 
 among other things, the total number of shares of capital 
 stock, and their par and market value at the date of the re- 
 turn; also, a statement of their entire real and personal 
 
 1 18 "WalL 206. Cleveland, etc. Ry. Co. v. Backus, 
 
 iil54U. S. 421. 133Iiid. 513. 
 
 8 154 U. S. 489; Indianapolis, etc. * 165 U. S. 194, 166 U. S. 185. 
 Ry. Co. Y. Backus, 133 Ind. 609; 
 17 
 
258 TAXATION. 
 
 property within, the State, its location and vame as assessed 
 for taxation. They "were further required to declare their 
 entire gross receipts from whatever source, and of the busi- 
 ness done ia Ohio, giving the receipts of each office in the 
 State, also the whole length of lines of rail and water routes 
 over which the companies did business, both withia and with- 
 out the State. The board of appraisement was required, in 
 determining the assessment of the companies, to be guided 
 by the value of the property as determined by their entire 
 capital stock, and by such other evidence as would enable it 
 to arrive at the true value in money of the entire property 
 of the companies in Ohio, in the proportion which it bore to 
 the entire property of the companies, as determined by the 
 value of their capital stock and other evidence. 
 
 It was shown that the properties of the express companies 
 within Ohio consisted chiefly of personal chattels, such as 
 horses, wagons, harnesses, some office furniture, and a smaU 
 amount of real estate occupied by stables. All this property 
 differed from property capable of only one use, such as a 
 telegraph right of way, and could have been used as the ex- 
 press companies used it by any purchaser. The value of an 
 office desk is the same whoever uses it, and cannot be deter- 
 mined by the gross receipts of the person in whose office it 
 stands. 
 
 Notwithstanding these facts, the State board of apprais- 
 ers valued at $533,000 the property of the Adams Express 
 Company within Ohio, which, if appraised upon the usual 
 basis,- was worth $42,000 only, and the method of valuation 
 which produced this result was approved by the Supreme 
 Court. 
 
 The property of the express companies, it was said, lacked 
 the physical unity which belongs to the property of railroads 
 and telegraph companies, but it has the same unity in the 
 use of an entire plant for a specific purpose, and the same 
 elements of value arising therefrom. The cars of the Pull- 
 man Car Company do not constitute a physical unity, and 
 yet a tax upon these cars in proportion to the mileage oper- 
 
TAXATION. 259 
 
 ated within and witliout the State of Pennsylvania was sus- 
 tained.^ 
 
 In assessing for taxation express property in a State, it was 
 held that the gross earnings, including those from interstate 
 commerce, could be considered,^ together with its total capi- 
 tal stock and its property both within and without the State.' 
 
 The value of the intangible property of an express com- 
 pany in a State may be ascertained by dividing the whole 
 value of the company's property in the proportion which the 
 line in the State bears to the length of its entire line.^ 
 
 The property of the express companies and of the car 
 company, the court said, had something more than a unity 
 of ownership. It was not the case of a manufacturing es- 
 tablishment in one State and a store in another. These may 
 be owned by the same person and a profit may be made by 
 operating the two, but the work of each would be separate. 
 In the case of the express company, possession of property 
 distributed through different States is an essential condition 
 of the business. The property is employed for a single spe- 
 cific use, and taken together constitutes but one single plant, 
 made so by the character and necessities of the business. 
 
 From this decision four justices dissented. 
 
 Mr. Justice White, in delivering the dissenting opinion, re- 
 ferred to the fact that the valuation of the property, in the 
 method adopted, amounted to a valuation of the franchise. 
 This franchise, as was said in Gloucester Ferry Go. v. Pemru- 
 ^Ivcmia, might constitute the principal part of the com- 
 pany's property. It was not granted by the State, and, con- 
 
 1 Pullman's Palace Car Co. v. State Auditor, 165 U.S. 194; Sanford 
 Pennsylvania, 141 U. S. 18. v. Poe, 69 Fed. Rep. 546; Adams Ex- 
 
 2 State ex rel. American Express press Co. v. Poe, 64 Fed. Eep. 9 ; State 
 Co. V, State Board of Assessment ex reL Poe v. Jones, 51 Ohio, 493; 
 and Equalization, 3 S. D. 338 ; United State v. Adams Express Co., 144 Ind. 
 State Express Co. v. Ellyson, 28 549. See Western Union TeL Co. v. 
 Iowa, 370. See Western Union TeL Poe, 61 Fed. Eep. 449. 
 
 Co. V. Ellyson, 28 Iowa, 380. * Adams Express Co. v. Ohio State 
 
 3 Adams Express Co. v. Kentucky, Auditor, 165 U. S. 194, 166 U. S. 185 ; 
 166U. S. 171; Sanford V. Poe, 165 U. Wells, Fargo & Co. v. Crawford 
 S. 194; Adams Express Co. v. Ohio County, 63 Ark. 576. 
 
260 TAXATION. 
 
 sisting of the right to engage in interstate commerce, was 
 beyond State jurisdiction. The result was, in the first place, 
 that Ohio might tax property beyond its limits. Property 
 owned by the express company in New York or Massa- 
 chusetts would add to the value of the shares of stock of 
 the company, and a certain proportion of this value would 
 be taxed by Ohio; while the same property thus taxed in 
 Ohio was also subject to taxation in New York or Massachu- 
 setts, where it was in fact located. 
 
 The result of the rule announced would be that neither a 
 corporation nor an individual could go from one State into 
 another for the purpose of there engaging in interstate com- 
 merce, without subjecting itself to the certainty of having a 
 proportion of its property situated in other States added to 
 the sum of property, however small, which it may carry 
 into the States where it does business, for purpose of taxation 
 therein. By this system not only is a penalty imposed for 
 going from one State into another, but the conduct of inter- 
 state commerce becomes loaded with a burden which threat- 
 ens its destruction. 
 
 The rule of appraisal adopted in this case met much criti- 
 cism. Like the EdUbms Case, and Leisy v. Hwrdvn, the Ex- 
 press Cases are an extreme application of an absolute rule, 
 and it is perhaps not improbable that the result may be to 
 demonstrate again that no absolute rule is capable of appli- 
 cation to all circumstances which arise. 
 
 Taxation of Receipts. — A State, may tax receipts derived 
 from business carried on entirely within its limits,' but it 
 may not tax receipts derived from business outside its juris- 
 diction, where the person or corporation conducting the busi- 
 
 1 Reagan v. Mercantile Trust Co., Adams Express Co., 2 OMo (N. P.), 
 
 154 U. S. 413; Pacific Ex. Co. v. Sei- 98; Commonwealth v. Delaware & 
 
 bert, 142 U. S. 339, 44 Fed. Eep. 810; H. C. Co., 21 W. N. C. 406; Com- 
 
 Western Union Tel. Co. v. Alabama, monwealth v. N. Y. E. & O. R. Co., 
 
 132 U. S. 472; Ratterman v. Tele- 145 Pa. St. 88. 
 graph Co., 137 U. S. 411; Ohio v. 
 
TAXATION. 261 
 
 ness is not domiciled in the taxing State and the receipts 
 have not been introduced within its limits so as to become 
 part of its property. 
 
 There has been, however, great diversity of views as to 
 the power of the State to tax receipts derived from trans- 
 portation across State lines. n-r^- 
 
 In the first case on the subject, State Tax on Gross Re- 
 ceipts} the court distinguished between a tax upon goods on 
 account of their carriage, and a tax upon the fruits of car- 
 riage when reduced to possession and mingled with the other 
 property of the carrier. The tax was laid upon receipts of 
 corporations organized under the laws of Pennsylvania, and 
 was collectible once in six months. The court held that this 
 tax feU upon a fund which had become incorporated with 
 the general mass of property in the State, and that it was 
 valid, as would have been a tax upon imported goods after 
 the package had been broken. The States, it was said, may 
 tax the property, real or personal, of all their corporations, 
 including carrying companies, as they tax similar property 
 belonging to natural persons, and to the same extent. This 
 taxation may be laid upon a valuation or may be an excise, 
 and iu exacting an excise tax from their corporations the 
 States are not obliged to impose a fixed sum upon franchises 
 or their value, but may demand a graduated contribution, 
 proportioned either to the value of the privileges granted, to 
 the extent or to the result of their exercise. No mode of 
 effecting this, and no forms of expression which have not a 
 meaning beyond this, can be regarded as violating the Con- 
 stitution. The tax ia question, it was said, was manifestly 
 imposed upon the raUroad companies measured in amount 
 by the extent of the busiaess or the degree to which their 
 franchises were exercised. The statute did not look beyond 
 the corporation to those who may have contributed to its 
 treasury. The tax was not levied untU after the money re- 
 ceived for freights and from other sources of income was 
 actually in possession of the company, and had lost its dis- 
 
 115 Wall. 284 
 
262 TAXATION. 
 
 tinotive cliaracter as freight. Such a tax as this, it was held, 
 fell withia the power of the States. 
 
 In view of the decision in the case of the State Freight 
 Tax ' which had just been made, " it is not too much to say 
 that the Gross Eeceipts decision was received with surprise. 
 It was at once felt theit the distinction thus drawn between 
 freight and the money paid for carrying freight was un- 
 sound in principle, and that the decision must soon be over- 
 ruled. Even at the first, its force was much weakened by 
 the strong dissent of three judges." ^ 
 
 In the dissenting opinion it was said that there was prac- 
 tically no difference between a tax upon transportation and 
 one upon its proceeds. To hold that the tax on freight is 
 within the evil to be remedied by the commerce clause, and 
 that a tax on receipts therefrom is not, is " to keep the word 
 of promise to the ear and break it to the hope." 
 
 It was conceded that transportation companies may be 
 taxed in any way that does not necessarily impose a burden 
 upon interstate transportation; but it was said that these 
 companies differ from banking, insurance or manufacturing 
 companies in that, while the latter concerns are only re- 
 motely or incidentally connected with commerce, the busi- 
 ness of transportation is itself commerce. 
 
 In concluding the dissenting opinion Mr. Justice MiUer 
 said: 
 
 " I lay down the broad proposition that by no device or 
 evasion, by no form of statutory words, can a State compel 
 citizens of other States to pay to it a tax, contribution, or 
 toll, for the privilege of having their goods transported 
 through that State by the ordinary channels of commerce. 
 And that this was the purpose of the framers of our Consti- 
 tution, I have no doubt; and I have just as little doubt that 
 the full recognition of this principle is essential to the har- 
 monious future of this country now, as it was then. The 
 internal commerce of that day was of small importance, and 
 
 115 Waa 233. 2 Delaware & Hudson C. Co. v. 
 
 Common-wealth, 17 AtL Eep. 175. 
 
TAXATIOIT. 263 
 
 the foreign was considered as of great consequence. But 
 both were placed beyond the power of the States to control. 
 The interstate commerce to-day far exceeds in value that 
 which is foreign, and it is of immense importance that it 
 should not be shackled by restrictions imposed by any State 
 in order to place on others the burden of supporting its own 
 government, as was done in the days of the helpless Con- 
 federation. 
 
 " I think the tax on gross receipts is a violation of the 
 Federal Constitution and therefore, void." 
 
 A large number of decisions are to be found announcing 
 the doctrine approved by the majority of the court in this 
 case and supporting State taxation of gross receipts. 
 
 In Erie Mmhoay v. P&nm,syVoomAa ^ a State law was sus- 
 tained which imposed a tax on gross receipts of railroad 
 companies doing business in the State, in the proportion of 
 their mileage within and without the State. In this case 
 the tax was levied upon receipts of a consolidated corpo- 
 ration existing under the laws of Pennsylvania, Maryland 
 and Delaware. There was no discussion of the constitu- 
 tional question, but the case of State T<m on Bwilway Gross 
 Recevpts was followed. A similar decision was made in 
 Mvrwt V. Ba/il/road Co.^ where a tax upon net receipts was 
 sustained when levied in proportion to the mileage within 
 and without the State. Many other cases sustained taxa- 
 tion upon receipts of railroad, express, telegraph and other 
 companies engaged in commerce among the States, and 
 upon receipts from sales of imported goods; and this rule 
 seems to have been approved by the Supreme Court as late 
 as 1884, in the case of Morcm v. New Orlecms? In 188T the 
 
 1 21 Wall. 493. Pearson, 376; State v. Philadelphia, 
 
 2 18 WaU. 306. W. & B. Ey., 45 Md. 361. 
 
 ' 113 U. S. 69. Express Companies: Walcott v. 
 
 Bailroad Companies: Buffalo & People, 17 Mich, 68; Southern Ex- 
 
 E. Ry. Co. V. Commonwealth, 15 press Co. v. Hood, 15 Rich. (S. C.) 66; 
 
 WaU 384 3 Brewst. 386; Common- American Union Express Co. v. 
 
 wealth V. Buffalo & E. Ey. Co., 3 City of St. Joseph, 66 Mo. 675: Ohio 
 
264 TAXATION. 
 
 rule which had so long prevailed was changed, and the case 
 of the State Tax on BaAVway Gross Beoevpts ' was considered 
 and questioned. The case announcing the new rule is that 
 of Steamship Co. v. PermsylA)am,ia? That case involved the 
 validity of a tax levied by Pennsylvania upon gross receipts 
 of a steamship company, incorporated under its laws, derived 
 from transportation of persons and property by sea between 
 different States and to and from foreign countries. In hold- 
 ing this tax invalid, the court said that the question was 
 whether the tax upon the receipts amounted to a regulation 
 of, or an interference with, interstate and foreign commerce. 
 It was levied directly upon the receipts derived by the com- 
 pany from its freights and fares for the transportation of 
 persons and goods between different States and countries. 
 " This transportation was an act of interstate and foreign 
 commerce. It was the carrying on of such commerce. It 
 was that, and nothiag else. In view of the decisions of this 
 court, it cannot be pretended that the state could constitu- 
 tionally regulate or interfere with that commerce itself. 
 But taxing is one of the forms of regulation. It is one of 
 the principal forms. Taxing the transportation, either by 
 its tonnage, or its distance, or by the number of trips per- 
 formed, or in any other way, would certainly be a regula- 
 tion of the commerce, a restriction upon it, a burden upon it. 
 Clearly this could not be done by the state without interfer- 
 ing with the power of Congress." 
 Accepting, therefore, the fact as established, that the State 
 
 V. Adams Express Co., 2 Ohio (N. P.), St. 148 ; Steamship Co. v. Common- 
 
 98. See Indiana v. American Ex- wealth, 104 Pa. St. 109; People v. 
 
 press Co., 7 Biss. 237. Wilmerding, 62 Him, 391; Padel- 
 
 Telegraph Companies: Western ford v. Mayor of Savannah, 14 Ga. 
 
 Union Tel. Co, V.Mayer, 38 Ohio St. 438; People v. Hussey, 4 Cal. 46; 
 
 521; Western Union Tel. Co. v. People v. Coleman, 4 CaL 46. Conf. 
 
 Commonwealth, 110 Pa. St. 405; Coot v. Pennsylvania, 97 U. S. 566. 
 
 Western Union TeL Co. v. State 1 15 WalL 284 
 
 Board of Assessment, 80 Ala. 273. 2 122 U. S. 826, reversing 104 Pa. 
 
 Other Occupations: Pullman's St. 109. See Fargo v. Michigan, 121 
 
 Car Co. V. Commonwealth, 107 Pa. U. S. 230. 
 
TAXATION. 265 
 
 could not tax the transportation, could the freights and fares 
 received for transportation be constitutionally taxed ? Look- 
 ing at the substance of things, it was difficult to see any dif- 
 ference between such taxes. The one was tantamount to 
 the other, and it was nearer to metaphysics than plain logic 
 for the State officials to say to the company: "We will not 
 tax you for the transportation you perform, but we will tax 
 you for what you are getting for performing it." Such a 
 position can hardly be said to be based on sound reason. 
 
 It was not, the court said, within the scope of the discus- 
 sion to refer to the disastrous effects to which the power to 
 tax interstate or foreign commerce might lead. If the power 
 exist in the States at all, it has no limit but their discretion, 
 and might be so exercised as to destroy that commerce, or 
 to load it with a burden, seriously affecting the business and 
 prosperity of other States interested in it ; and if those States, 
 by way of retaliation or otherwise, should impose like re- 
 strictions, the utmost confusion would prevail in our com- 
 mercial affairs. 
 
 The result of this case, then, was to,deprive the States of 
 power to tax receipts derived from interstate commerce. 
 
 Following this decision, it was held in Indiana that a tax 
 levied upon the gross receipts of a car company in the pro- 
 portion which the mileage of the company within the State 
 bore to that without was unconstitutional.^ In Yermont it 
 was also held that receipts from transportation could not be 
 thus taxed.* 
 
 The power of the Federal government over interstate 
 commerce, the court said, was exclusive and supreme. The 
 question involved was a Federal one ; and while the earlier de- 
 cisions of the Supreme Court were not harmonious, the later 
 cases had carried the Federal power to the utmost length, 
 and " have much restricted, if, indeed, they have not com- 
 pletely annulled, the police power of the states where inter- 
 
 1 state V. Pullman's Car Co., 16 2 Vermont & 0. E. Ca v. Vermont 
 Fed. Rep. 193; State v. WoodrufB E. Co., 63 Vt. 1. 
 Car Co., 114 Ind. 155. 
 
266 
 
 TAXATION. 
 
 state questions are involved, and they have, in. effect, swept 
 away all state lines." ^ 
 
 A similar decision was rendered by the United States Oir- 
 .i ^uit Court in the case of Indiam,a v. Pullman's Car Co., ^ 
 where it was held the fact that a sum of money was earned 
 in Indiana gives that State no right to tax it in the treasury 
 of the company in Illinois. The statute in question, it was 
 said, was void as an effort to give State law extraterritorial 
 force and to regulate commerce among the States. 
 
 The rule prohibiting taxation of receipts has been applied 
 in a large number of cases, and is now " thoroughly estab- 
 lished.'" 
 
 In Maine v. Grand Trunk JRy. Co.* we reach the third 
 stage of constitutional doctrine upon this subject, and the 
 rule of apportionment which had been applied to the prop- 
 erty of telegraph and car companies is applied to the taxa- 
 
 1 State V. Woodruff Car Co., 114 
 Ind. 155. 
 
 2 16 Fed. Eep. 193. 
 
 ' Railroad Companies: New York, 
 etc. E. R. Co. V. Pennsylvania, 158 
 U. S. 431, 437; Delaware & Hudson 
 Canal Co. v. Commonwealth, 17 
 AtL Eep. 175; Commonwealth, v. 
 Delaware, L. & W. Ey. Co., 31 "W. N. 
 C. 413 ; Commonwealth v. Delaware, 
 etc. Ey. Co. (Com. PL Dauphin Co., 
 Pa.), 31 W. N. C. 406; Vermont & 
 Canada Ey. Co. v. Vermont Central 
 Co., 63 Vt. 1; Southern Ey. Co. v. 
 City of Ashville, 69 Fed. Eep. 859; 
 Delaware, etc. Canal Co. v. Com- 
 monwealth, 1 Mona. 36; Northern 
 Pacific E. E. Co. v. Barnes, 3 N. D. 
 SIO, 351; Northern Pacific E. E. Co. 
 V. Strong, 3 N. D. 395; Northern 
 Pacific E. E. Co. v. Brewer, 3 N. D. 
 896; Northern Pacific E. E. Co. v. 
 Tressler, 3 N. D. 397; Northern Pa- 
 cific E. E. Co. V. McGinnis, 4 N. D. 
 494; Northern Pacific E. E. Co. v. 
 
 Eaymond, 5 N. D. 356. See Com- 
 monwealth V. Lehigh Valley Ey. 
 Co., 139 Pa. St. 308; Lehigh Val- 
 ley Ey. Co. V. Commonwealth, 1 
 Mona. 45. 
 
 Express Companies: Fargo v. 
 Michigan, 131 U. S. 330, reversing 
 57 Mich. 598. See State v. Ameri- 
 can Express Co., 7 Biss. 337. 
 
 Telegraph Companies: Western 
 Union Tel. Co. v. Alabama, 133 
 U. S. 473; Western Union TeL Co. 
 V. State, 63 Tex. 630; In re Taxa- 
 tion of Pennsylvania TeL Co., 48 
 N. J. Eq. 91. 
 
 Car Companies: State v. Pull- 
 man's Palace Car Co., 64 Wis. 89; 
 State V. Woodruff Coach Co., 114 
 Ind. 155. 
 
 Other Occupations: Cooky. Penn- 
 sylvania, 97 U. S. 566; State of 
 Louisiana v. Kennedy, 19 La. Ann. 
 397; Frere, Sheriff, v. Von Schoeler, 
 47 La. Ann. 334 
 
 n43U. S. 317. 
 
TAXATION. 26Y 
 
 tion of gross receipts. The statute in question in this case 
 provided that every person operating a railroad within the 
 State should pay to the State Treasurer an annual excise 
 tax for the privilege of exercising its franchises in the State, 
 the amount of the tax to be ascertained by reference to the 
 gross receipts of the company in the proportion of its mile- 
 age within and without the State. The statute was upheld 
 on the ground that it was levied upon the raih'oad company, 
 a foreign corporation, for the privilege of exercising its 
 franchises within the State. It was permissible, the court 
 said, to measure this tax by reference to the receipts of the 
 company, and nothing in this decision, it was said, conflicted 
 with the decision in Stewmship Co. v. Pennsyl/vcmia} It seems 
 clear that the burden of the tax in question fell upon the 
 gross receipts by which the tax was measured. The validity 
 of a tax cannot depend upon the name which is given to 
 it, nor can it be assumed that the ruling of the court in 8team- 
 shvp Co. V. Permsylucmia would have been different had the 
 wording of the law there involved been that which the State 
 of Maine subsequently adopted. 
 
 In the dissenting opinion it was said that by the decis- 
 ion in that case it was held that taxation may be imposed 
 upon receipts of the company for the exercise of its franchise 
 within the State if graduated according to the mileage. 
 This tax might be levied as upon property. The receipts 
 might also be taxed as upon the franchise. In many other 
 ways the burden might be laid upon them. 
 
 " If the interstate commerce of the country is not, or will 
 not be, handicapped by this course of decision," said Mr. 
 Justice Bradley, " I do not understand the ordinary princi- 
 ples which govern human conduct." 
 
 The decision in the Mame Receipts Case must be regarded 
 as a variation from the rule stated in the Steamship Co. 
 V. Pennsylvania. It is no longer true that receipts cannot 
 be taxed, and that so far as this question is concerned the 
 States do not exist. Receipts can be taxed if the rule of ap- 
 
 1123U. S. 336. 
 
268 TAXATION. 
 
 1 
 
 portionment be followed. Since the decision in tlie Mwme 
 Case, receipts have been referred to, not only as a measure 
 of value of franchises and of real and personal property, but 
 even in addition to all these taxes they have been made sub- 
 ject to a payment for benefits derived from control by a 
 State commission.' 
 
 License Taxes on Occupations. 
 
 The earlier cases made a distinction between taxation 
 upon interstate commerce and upon the occupation of con- 
 ducting commerce. Occupations carried on within the limits 
 of a State are, it was said, subject to its control and regula- 
 tion; and while a tax upon those occupations might affect 
 transportation, it was no more a tax upon it than under the 
 rule which then obtained would have been a tax upon re- 
 ceipts derived from transportation. The leading case which 
 announced this doctrine is Osborne v. Mobile^ decided in 1873. 
 In this case it was held that an ordinance requiring pajmient 
 of a fee for a license to transact in Mobile a general express 
 business extending beyond the State was not a regulation 
 of commerce, although the ordinance required a larger pay- 
 ment from interstate than from domestic carriers. In either 
 case, it was said, the tax was imposed upon the business of 
 making contracts within the State. It was true that the 
 contracts were for interstate carriage, but the tax rested 
 upon the business ; not upon the carriage. When imposed 
 without discrimination, therefore, such taxes were sustained,' 
 
 1 Charlotte, etc. Ey. Co. v. Gibbs, Valley R. Co. v. Commonwealth, 1 
 143 U. S. 386; Southern Express Co. Mona. 45; Commonwealth v. Lehigh 
 V. Virginia, 168 U. S. 705 ; New York, Valley Co., 139 Pa. St. 308. 
 etc. E. E. V. Pennsylvania, 158 U. 2 16 "Wall. 479, 44 Ala. 493. 
 S. 481; Pittsburgh, etc. Ey. Co. v. 'Memphis & Little Eook Ry. Co. 
 Backus, 154 U. S. 431; Tide-Water v. Nolan, 14 Fed. Eep. 533; Mobile 
 PipeCo.T. State Board of Assessors, v. Leloup, 76 Ala. 401; Crutcher v. 
 57 N. J. L. 516; State ex rel. Ameri- Commonwealth, 89 Ky. 6; Light- 
 can Express Co. v. State Board of burne v. Taxing District, 4 Lea, 319; 
 Assessment, 3 S. D. 338; People v. Pullman So. Car Co. v. Gaines, 3 
 Campbell, 74 Hun, 210. See Lehigh Tenn. Ch. 587 ; TeL Co. v. Eiohmond, 
 
TAXATION. 269 
 
 but when discrimination appeared they were invalid on that 
 account.^ 
 
 In Morcm v. New Orlecms^ decided ia 1882, the question 
 was agaiu presented. In the ten years which intervened be- 
 tween the two decisions, the court had greatly extended the 
 Federal commercial power, and the tax which was sustained 
 in the earlier case was declared invalid in the later case. 
 The ordinance upon which the question arose required pay- 
 ment of a license fee by all persons operating tow-boats be- 
 tween the Gulf of Mexico and the city of New Orleans. 
 This tax, the court said, was imposed upon the business of 
 navigating the Mississippi river, and could not be applied 
 to vessels licensed under the Federal laws to carry on the 
 coasting trade. The occupation taxed was that of using the 
 Federal license; acts which the United States declared might 
 be done without the tax, the State attempted to declare could 
 only be done upon payment of the tax. Osiorne v. Mobile 
 was referred to in the opinion of the court, but no distinc- 
 tion was noticed. The effect was, nevertheless, to question 
 the soundness of the earlier decision, if, indeed, it were not 
 practically overruled. The Morcm Oase was rapidly followed 
 by Picka/rd v. Pulkncm, Co.^ Steomisfwp Co. v. Pemnsyl/ocmiia,^ 
 and other cases. In Rdbbins v. SJielby Ooiunty Taxing Dis- 
 i/rict^ Osborne v. Mobile, though not cited in the majority 
 opinion, was much relied upon in the dissenting opinion of 
 the Chief Justice, Mr. Justice Field and Mr. Justice Gray. 
 It was not, however, expressly overruled until the decision 
 in Lelo'wp v. Mobile.^ Ordinary occupations, the court there 
 said, may be taxed in various ways, and in most cases legiti- 
 mately taxed ; but in the case at bar, the busiaess of the tele- 
 graph company was that of carrying on interstate commerce, 
 and a State could not tax such a business occupation when 
 
 26 Gratt. 1. Conf. Southern Ex Co. « 112 U. S. 69. 
 
 V. Mayor, etc. of MobUe, 49 Ala. 404. 3 117 xj. S. 34. 
 
 See Finney Grocery Co. v. Speed, 87 * 122 U. S. 336. 
 
 Fed. Rep. 408 ; Galveston v. Gorham, 5 130 U. S. 489. 
 
 49 Tex. 279; Singer Mfg. Co. v. 6127U. S. 640. See Postal TeL Co. 
 
 Wright, 97 Ga. 114 v. Adams, 71 Miss. 535. 
 1 Cook V. Pennsylvania, 97 U. S. 566. 
 
270 TAXATION. 
 
 it could not tax the business itself. It was urged that a part 
 of the telegraph business was internal to the State of Ala- 
 bama, and therefore taxable by it, but this fact, the court 
 said, did not remove the difficulty. The tax afPected the 
 whole business without distinction, and such a tax the State 
 could not impose.^ 
 
 In Norfolk & Western By. Co. v. Permsyhcmia, it was 
 shown that the railroad company owned a line of road in 
 the States of Yirginia and West Yirginia, and that by traffic 
 contracts this road had become a link in a through line over 
 which freight and passengers were carried in and out of 
 Pennsylvania. In the conduct of this business the railroad 
 company maintained an office in Philadelphia for the use of 
 its officers, stockholders, agents and employees. The stat- 
 ute in question imposed a tax upon the company for the 
 maintenance of this office. It was not open to question, the 
 court said, that the business of the railroad company was 
 interstate commerce and nothing else. The purpose for 
 which the office was maintaiued in Pennsylvania was the 
 furtherance of this business. It did not seek to exercise, in 
 that State, any privileges or franchises not immediately con- 
 nected with interstate commerce, or required for the pur- 
 pose thereof. A tax upon the maintenance of this office 
 was therefore upon one of the means of the company's 
 commerce, and as such was in violation of the Constitu- 
 tion.^ In Mb Coil V. California^ the plaintiff in error was 
 agent of a railroad company whose line extended between 
 Chicago and New York. His occupation consisted in solicit- 
 ing passenger traffic in San Francisco for the road which 
 he represented, and it was claimed on the part of the State 
 that this occupation was subject to its taxation. The court 
 held that the business of the agency was one of the means 
 by which the company sought to increase its interstate pas- 
 
 1 Telegraph Co. v. Alabama, 133 Pennsylvania, 136 U. S. 114, revers- 
 U. a 473; Eatterman v. Western ing 114 Pa. St. 256; People v. Eob- 
 Union Tel. Co., 137 U. 8. 411. erts, 50 N. Y. Siipp. 355. 
 
 2 Norfolk & "Western E. E. Co. v. 3 136 U. S. 104. 
 
TAXATIOir. 2Y1 
 
 senger traffic. It was not incidentally or remotely con- 
 nected with the business of the road, but was a direct method 
 of increasing that business. The tax upon it was therefore 
 upon the occupation of carrying on interstate commerce, 
 and as such beyond the power of the State. A similar de- 
 cision was rendered in ISTew York in the case of People ex 
 rel. PeTwisyhcmia R. R. Go. v. Weirrvple} It was shown 
 that the Pennsylvania Kailroad Company operated a line of 
 railroad for the transportation of freight and passengers, ex- 
 tending through the State of Ifew Jersey and into other 
 States. 1S.O part of its road lay within Ifew York, but it 
 operated, in. connection with its road, a ferry from the New 
 Jersey shore across the Hudson river to the city of ]S"ew 
 York, where it had terminal facilities consisting of wharves, 
 piers, docks and buildings which were used in the transac- 
 tion of the business of transporting freight and passengers 
 over its line. The only transportation in which it engaged 
 within New York consisted of receiving and delivering 
 freight and passengers to and from that city, the making of 
 contracts for transportation, the sale of passenger tickets, 
 and the employment of a large number of agents by whom 
 this business was conducted. It was held that this business 
 was exclusively interstate commerce. The railroad per- 
 formed the work of an interior carrier in New Jersey and 
 other States, but in New York its business was that of an 
 interstate carrier exclusively. The tax in question had been 
 held to be upon the corporate franchise or business, and not 
 upon property, and it necessarily followed that it could not 
 be laid upon the railroad company. The general power of 
 a State to tax pursuits and callings carried on within its 
 limits does not extend to the taxation of any business which 
 is conducted solely by authority of a Federal franchise. The 
 same rule was announced in a number of other cases.^ 
 The result of these cases indicates that whUe at different 
 
 1 138 N. Y. 1; s. 0., 65 Hun, 353, 47; Ratterman v. TeL Co., 137 U. S. 
 30 N. Y. Supp. 387. 411; Webster v. Bell, 68 Fed. Rep. 
 
 2 Crutclier v. Kentucky, 141 U. S. 183. 
 
272 TAXATION. 
 
 times the views of the courts differed as to the character of a 
 certain tax, nevertheless in all cases the principle of law upon 
 which the judgment of the court proceeded was the same — 
 that acts performed under franchises granted by the State are 
 subject to its jurisdiction,^ but that operations performed 
 under a Federal franchise are wholly beyond State control. 
 In MaJme v. Qromd Trunk By. Co? this principle was 
 modified by the introduction of the rule of apportionment 
 which we have traced in other fields of taxation. In the 
 Maine case the tax in question was imposed upon every cor- 
 poration or person operating a railroad within the State, for 
 the privilege of exercising its franchise therein, the amount 
 of the tax to be determined by a proportion of the gross re- 
 ceipts of the company, divided with reference to its mileage 
 within and without the State. It was clear that if the earlier 
 cases were followed such a tax could not be sustained. The 
 fact that it was laid upon the privilege of exercising corpo- 
 rate franchises within the State could not justify it; for, as 
 was said in Pickwrd v. Pullman Southern Oa/r Co.^ exercise 
 of a constitutional right cannot be made a privilege by State 
 legislation. As a tax upon receipts the statute could not be 
 justified, for receipts derived from interstate transportation 
 were not subject to State taxation; * and the fact that it was 
 imposed upon part only of the receipts was immaterial, for 
 a through rate is a unit and not susceptible of division.'^ 
 Notwithstanding these facts the court sustained the tax. 
 The doctrine of earlier cases was therefore considerably 
 modified by this case. It cannot be understood, however, 
 that the court intended to hold that acts performed under a 
 Federal franchise were subject to State taxation, or to over- 
 rule the Pickard case and Steomiship Co. v. Pennsyl/vwnia, 
 If these cases, then, are still to be regarded as correct, some 
 distinction must be found in the facts. 
 
 I Osborne v. Florida, 164 U. S. 650 ; ' 117 U. S. 34 
 
 Central Pacific E. R. Co. v. Calif or- * Steamship Co. v. Pennsylvania, 
 
 nia, 163 U. S. 91; Southern Pacific 132 U. S. 326. 
 
 R. R. Co. V. CaUfornia, 163 U. S. 167. 5 Wabash R. R. Co. v. IlHnois, 118 
 
 2142U. S. 317. IT. S. 557. 
 
TAXATION-. 273 
 
 It is possible that the only substantial difference in the 
 facts is in the extent of the taxation involved. The tax in 
 the Pickard case was for an amount arbitrarily fixed by the 
 State, and in Stecmishvp Co. v. Pennsylvania it was laid upon 
 all the receipts of the company ; while in Mbdne v. Bailwan/ 
 Co. the court emphasized the fact that the tax, being pro- 
 portioned to the receipts of the business, seemed eminently 
 reasonable and Likely to produce satisfactory results, both 
 to the State and to the corporation taxed. If this be the 
 distinction between the cases, the question which is likely to 
 present itself for decision, so long as the Maine case stands, 
 will no longer be entirely a question of State jurisdiction 
 over domestic or Federal franchises, but wiU be affected, or 
 perhaps determined, by the question whether the method of 
 division adopted is reasonable and likely to produce satis- 
 factory results. 
 
 Since this decision there have been a number of cases 
 holding that Federal franchises are beyond State taxation. 
 na/rmon v. CMcago ^ held that a city ordinance imposing a 
 license tax for the privilege of navigating a river within the 
 limits of a city was unconstitutional. In this case the river 
 had been, from time to time, improved by the city, and it 
 was claimed that the ordinance was in the nature of a toll, 
 or compensation, for the benefit of this improvement. The 
 court held, however, that the license, being exacted for keep- 
 ing, using or hiring steam tugs, was not compensation for the 
 deepening of the river, and called attention to the fact that 
 it was not shown that any special benefit had arisen to the 
 vessels in question by the deepening which had been made. 
 The license tax was therefore upon the use of boats in inter- 
 state commerce, and this was beyond the jurisdiction of the 
 State.2 
 
 On the other hand, where a foreign corporation is engaged 
 both in domestic and interstate commerce, its domestic busi- 
 
 1 147 IT. S. 396. Seibert, 143 U. S. 339; Western 
 
 2 Postal TeL Cable Co. v. Charles- Union TeL Co. v. Alabama, 132 U. S. 
 
 ton, 158 U. S. 693; Express Co. v. 473. 
 18 
 
274 TAXATION. 
 
 ness is subject to regulation by the Stata in wMcli it is con- 
 ducted. If a foreign corporation employs its capital in a 
 State and has its protection, there is no reason why it should 
 not be subjected, to the extent of its capital so employed, or 
 under some circumstances to the extent of its whole capital, 
 to State regulation. The tax is not imposed upon its property, 
 but is a condition of the grant of a privilege of doing do- 
 mestic business as a corporation within the State. In Horn 
 SiVoer Minvng Go. v. New York the company maintained an 
 office in New York for its officers and directors and kept 
 bank accounts there; it was subjected to a franchise tax 
 computed by a percentage of its whole capital stock, and 
 this was sustained.^ In People ex rel. Southern Cotton Oil 
 Co. V. Wenvple,^ it was shown that the relator was organized 
 under the laws of New Jersey. It maintained a sales agency 
 in New York, and imported into that State crude oil, which 
 was there refined and delivered to customers. It also main- 
 tained a warehouse in New York for storage of its products, 
 and kept a deposit in New York banks. It was held that 
 this corporation was engaged in a domestic business within 
 the State, and that the franchise of so engaging in business 
 was subject to taxation. 
 
 The general rule, therefore, is that license fees may be 
 required for the conduct of domestic » business although the 
 licensee may also be engaged in an interstate business,' but 
 a fee may not be required for the conduct of interstate 
 commerce,* either for selling goods from other States' 
 
 1 Horn SUver Mining Co. v. New Eeidsville, 101 N. C. 404; Telegraph 
 
 York, 143 U. S. 305. Co. v. Fremont, 39 Neb. 693, 43 Neb. 
 
 2131 N. Y. 64; State ex rel. Parke 499; Express Co. v. State, 55 Ohio 
 
 V. Eoberts, 91 Hun, 158. St. 69. See Telegraph Co. v. Missis- 
 
 8 Osborne v. Florida, 164 U. S. 650, sippi E. E. Commission, 74 Miss. 80. 
 affirming 38 Fla. 163; Postal Tel. Co. <MoCall v. California, 136 U. S. 
 V. Charleston, 153 U. S. 693; Gibson 104; Clyde S. S. Co. v. City Council 
 County V. Pullman Co., 43 Fed. Eep. of Charleston, 76 Fed. Eep. 46; City 
 573; Alabama, etc. E. Co. t. City of of San Bernardino v. Southern Pa- 
 Bessemer, 113 Ala. 668; City of An- cific Ey. Co., 107 Cal. 534. 
 niston v. Southern E. E. Co., 113 ^ Brennan v. Titusville, 153 U. S. 
 Ala. 557; Eiohmond, etc. Ey, Co. v. 389; Asher v. Texas, 138 U. S. 139; 
 
TAXATION. 
 
 275 
 
 or for purcliasmg goods for transpotrtatioii beyond the 
 State.i 
 
 Interstate traffic is free from, burdens imposed by State 
 laws. That a person is engaged both in interstate and domes- 
 tic business does not authorize a State to subject the whole 
 to its regulation. Before domestic business may be taxed it 
 must be separated from that which is foreign and interstate.'* 
 In no event can the payment of a tax be made a condition 
 precedent to the right of any person or corporation to en- 
 gage in interstate commerce.^ 
 
 After goods have passed from first hands * or after original 
 
 Eobbins v. Taxing District, 130 U. S. 
 489; Ex parte Hough, 69 Fed. Eep. 
 330 ; In re Mitchell, 63 Fed. Eep. 576 ; 
 In re Eozelle, 57 Fed. Eep. 155; In 
 re Flynn, 57 Fed. Eep. 498; In re 
 Tyerman, 48 Fed. Eep. 167; In re 
 Nichols, 48 Fed. Eep. 164 ; In re Spain, 
 47 Fed. Eep. 308; In re Houston, 47 
 Fed. Eep. 539; In re White, 43 Fed. 
 Eep. 913; In re Kimmel, 41 Fed. 
 Eep. 775; Ex parte Stockton, 33 
 Fed. Eep. 95; Stratford v. City 
 Council of Montgomery, 110 Ala. 
 619; Ex parte Murray, 93 Ala. 78; 
 State of Alabama v. Agee, 83 Ala. 
 110; McClelland v. Mayor, etc. of 
 City of Marietta, 96 Ga. 749; 
 Wrought Iron Eange Co. v. John- 
 son, 84 Ga. 754; City of Blooming- 
 ton V. Bourland, 137 Dl. 534; City 
 of Peoria v. Gugenheim, 61 111. App. 
 374; City of Huntington v. Mahan, 
 143 Ind. 695; Martin y. Town of 
 Eosedale, 130 Ind. 109; McLaughUn 
 V. City of South Bend, 136 Ind. 471; 
 City of Ft. Scott v. Pelton, 39 Kan. 
 764; McClellan t. Pettigrew, 44 La. 
 Ann. 356; Simmons Hardware Co. 
 V. McGuire, 39 La. Ann. 848; Over- 
 ton V. City of Vicksburg, 70 Miss. 
 558; Eichardsonv.State,llSo.Eep. 
 934; State v. Bracco, 103 N. C. 349; 
 State ex reL SeUiger v. O'Connor, 5 
 
 N. Dak. 639; Ex parte Eosenblatt, 
 19 Nev. 439; Baxter, Marshall v. 
 Thomas, 4 OkL 605; Hurford v. 
 State, 91 Tenn. 669; State v. Scott, 
 98 Tenn. 354; Ex parte Holman, 36 
 Tex. Crim. App. 355; State v. Lich- 
 tensteiQ (W. Va.), 38 S. E. Eep. 753; 
 People V. Eoberts, 47 N. Y. Supp. 
 949; Lewis v. Irby Cigar Co. (Tex. 
 Civ. App.), 45 S. W. Eep. 47& 
 
 1 Eothermel v. Meyerle, 136 Pa. St. 
 350. See Eothermel v. Zeigler, 7 
 Pa. Co. Ct. Eep. 505. 
 
 2 Eatterman v. Telegraph Co., 137 
 U. S. 411; United States v. Heming- 
 way, 39 Fed. Eep. 60; San Bernar- 
 dino Co. V. Southern Pac. Ey. Co., 
 107 Cal. 534. 
 
 SLeloup V. Mobile, 137 U. S. 640; 
 Telegraph Co. v. Massachusetts, 135 
 U. S. 530; Pickard v. Pullman's 
 Car Co., 117 U. S. 34; Moran v. New 
 Orleans, 113 U. S. 69; Aultman v. 
 Holder, 68 Fed. Eep. 467; City of 
 Bradford v. Telegraph Co., 11 Ey. & 
 Cor. L. J. 54 (Ct. Com. PI., McKean 
 Co., Pa.). Conf. People ex reL So. 
 Cotton Oil Co. V. Wemple, 131 N. Y. 
 64 
 
 * Waring t. Mayor, 8 WaU. 110; 
 Mayor of MobUe t. Waring, 41 Ala. 
 139; State v. Joyner, 81 N. C. 584. 
 See State v. Kibling, 63 Vt. 036. 
 
276 TAXATION. 
 
 packages have been broken,^ they are considered as mingled 
 with the mass 6f property in the State, and so long as no dis- 
 crimination be made against them on account of their origin, 
 their sale may be taxed or prohibited by State law. Dis- 
 crimination is always prohibited by the commerce clause, and 
 any law which imposes upon the goods or dealers of other 
 States or countries burdens which are not borne by domestic 
 goods or dealers is for this reason unconstitutional,^ and 
 Congress cannot authorize such discrimination.' 
 
 Upon this ground a State tax is invalid which is laid upon 
 purchases of goods outside the State, but not upon purchases 
 from dealers within the State who have paid an occupation 
 tax.* A license tax upon sale of goods cannot be sustained 
 where the amount of the tax is higher for the sale of goods 
 from other States or countries than for domestic goods;' or 
 where an exception is made in favor of persons having a 
 local place of business ; * or where there is an exemption in 
 favor of sales by local citizens;'' or where the tax discrim» 
 inates against imported goods,' or non-residents or foreign 
 
 1 State V. Parsons, 124 Mo. 436; Louisville, 84 Ky. 306; Daniel v. 
 Higgins T. Einker, 47 Tex 381, 393; Trustees, 78 Ky. 542; State v. North 
 Commonwealth v. Harmel, 166 Pa. & Scott, 27 Mo. 464; Albertson v. 
 St. 89. See State V. KibUng, 63 Vt Wallace, 81 N. C. 479; State v. 
 636. Nash, 97 N. C. 514; Sinclair v. State, 
 
 2 Corson v. State of Maryland, 120 69 N. C. 47; Missouri v. Browning, 
 U. S. 502, reversing 57 Md. 251; 62 Mo. 591; Borough of Danville v. 
 ■Webber V.Virginia, 103 U. S. 344, Leiberman, 16 Pa. 0. 0. 394; Ex 
 reversing 33 Gratt. 898; Cook v. parte Rollins, 80 Va. 314 See Graflty 
 
 ' Pennsylvania, 97 U. S. 566; Welton v. City of Rushville, 107 Ind. 502. 
 
 V. Missouri, 91 U. S. 375, reversing s In re Henniok, 1 Int. Com. Eep. 
 
 55 Mo. 288; Ward v. Maryland, 12 66. 
 
 Wall 418; Georgia Packing Co. v. * Albertson v. Wallace, 81 N. C. 
 
 Mayor, etc. of Macon, 60 Fed. Eep. 479. 
 
 774; Wen v. Calhoun, 25 Fed. Rep. « Ward v. Maryland, 12 Wall 418. 
 
 865; Bogan v. State, 84 Ala. 449; «Fecheimer v. Louisville, 84 Ky. 
 
 PoweU V. State, 69 Ala. 10; State 306. 
 
 V. Deschamp, 53 Ark. 490; State v. ' Daniel v. Trustees of Richmond, 
 
 Marsh, 37 Ark. 356; Ex parte 78 Ky. 543. 
 
 Thomas, 71 CaL 204; Town of Pa- 8 Cook v. Pennsylvania, 97 U. S. 
 
 ciflc Junction V. Dyer, 64 Iowa, 38; 566. 
 Fecheimer Bros. & Co. v. City of 
 
TAXATIOK. 27% 
 
 dealers ; ^ or where any exception is made in favor of do- 
 mestic products ; ^ or where the amount of the tax is deter- 
 mined by reference to stock held in another State.' 
 
 License Tax Upon Drummers. — Taxation of commercial 
 travelers is in many respects similar to taxation of the occu- 
 pation of merchants, the most obvious difference between 
 the two being that in the one case the licensee has a fixed 
 place of business, while iu the other he travels from place 
 to place. The business of the merchant, like that of the 
 traveling salesman, is the negotiation of contracts for the 
 sale of goods. 
 
 The difference in the method of doing business necessarily 
 affects the character of the tax by which the business can be 
 reached. In the case of the merchant with the fixed place 
 of business, it is possible to impose a tax which shall have 
 reference to the whole of the business done throughout the 
 year, and in effect amount to taxation of his stock in trade ; 
 while in the case of a traveling salesman, the only tax which 
 can be collected is upon the occupation of selling. Under 
 earlier cases this distinction was not important. Both oc- 
 cupations were within the doctrine of Osborne v. MdbUe, 
 which supported license taxes in one case as in the other.* 
 
 Under this rule the license tax was supported although 
 the goods were not in the State at the time of the sale ; * and 
 in some cases this tax was imposed only upon drummers 
 
 1 Singer Mfg. Co. v. Wrigiit, 33 ^Corson v. Maryland, 130 U. S. 
 Fed. Eep. 131; Bogan v. State, 84 503. 
 
 Ala. 449; McCreary v. State, 73 Ala. ^Ex parte Hanson, 38 Fed. Rep. 
 
 480; Powell v. State, 69 Ala. 10; 137; In re Rudolph, 6 Sawy. 395; 
 
 State V. Deschamp, 53 Ark. 490; Commonwealtli v. Fugate, 6 Gratt. 
 
 Pacific Junction v. Dyer, 64 Iowa, 693; Corson v. Maryland, 57 Md. 
 
 38; Danville v. Leiberman, 16 Pa. 351; Territory v. Famsworth, 5 
 
 Co. Ct. Rep. 394 Conf. Ex parte Mont. 303, 334; City of Titusville 
 
 Kinnebrew, 35 Fed. Rep. 53. v. Brennan, 143 Pa. St. 643. 
 
 2 "Webber V. Virginia, 103 U. S. 344; » Ex parte Hanson, 38 Fed. Rep. 
 Graffty v. Rushville, 107 Ind. 503; 137; In re Rudolph, 6 Sawy. 395; 
 State V. North, 27 Mo. 464; Crow v. Commonwealth v. Smith, 6 Bush 
 State, 14 Mo. 337. (Ky.), 303; Morkv. Commonwealth, 
 
278 
 
 TAXATION. 
 
 who had no regular place of business or residence in the lo- 
 cality where they were engaged.^ This doctrine is now 
 abandoned, and it is settled a State or Territory cannot tax 
 the occupation of drummers selling goods which are kept 
 without the limits of the State and shipped upon orders 
 which are procured by the drummers.' 
 
 "Where goods have been shipped into the taxing State there 
 has been some diversity of opinion as to the validity of license 
 taxes upon the occupation of negotiating their sale. Such 
 taxes have been sustained in a number of cases even when 
 the sales were made by the importer in original packages.' 
 
 6 Biish, 397; Speer v. Common- 
 wealth, 33 Gratt. (Va.) 935 ; Ex parte 
 Thornton, 4 Hughes, 330; District 
 of Columbia v. Humason, 3 Mac- 
 Arthur, 158; State v. Long, 95 N. C. 
 583; Ex parte Robinson, 13 Nev. 363; 
 Ex parte Asher, 33 Tex. Ct. App. 
 663, reversed in 138 U. S. 139. 
 
 iRobbins v. Taxing District of 
 Shelby Co., 13 Lea, 303; Speer v. 
 Commonwealth, 33 Gratt. (Va.) 935; 
 Ward V. State of Maryland, 31 Md. 
 379; State v. Richards, 33 W. Va. 
 348; Territory v. Famsworth, 5 
 Mont. 303. 
 
 2Brennan v. Titusville, 153 U. S. 
 389, reversing 143 Pa. St. 643; Asher 
 V. Texas, 138 U. S. 139; Corson v. 
 Maryland, 130 U. S. 503; Robbins 
 V. Shelby County Taxing District, 
 130 U. S. 489; Welton v. Missouri, 
 91 U. S. 375; Ward v. Maryland, 13 
 WalL 418; Ex parte Hough, 69 Fed. 
 Rep. 830; In re Mitchell, 63 Fed. 
 Rep. 576; In re Flinn, 57 Fed. Rep. 
 496; In re Rozelle, 57 Fed. Rep. 155; 
 In re Houston, 47 Fed. Rep. 539; 
 In re Spain, 47 Fed. Rep. 308; In re 
 White, 43 Fed. Rep. 913; In re Kim- 
 mel, 41 Fed. Rep. 775; Stratford v. 
 City Council of Montgomery, 110 
 
 Ala. 619; Ex parte Murray, 93 Ala. 
 78; State v. Agee, 83 Ala. 110; Mc- 
 Clelland v. Mayor of Marietta, 96 
 Ga. 749; Wrought Iron Range Co. 
 V. Johnson, 84 Ga. 754; City of 
 Himtington v. Mahan, 143 Ind. 695; 
 Martin v. Town of Rosedale, 130 
 Ind. 79; McLaughlin v. City of 
 South Bend, 136 Ind. 471; City of 
 Ft. Scott V. Pelton, 39 Kan. 764; 
 McClelland, Tax Collector, v. Petti- 
 grew, 44 La. Ann. 336; Coit v. Sut- 
 ton, 103 Mich. 334; Wilcox, etc. Co. 
 V. Mosher (Mich.), 73 N. W. Rep. 117 ; 
 Overton v. City of Vicksburg, 70 
 Miss. 558; Richardson v. State 
 (Miss.), 11 So. Rep. 934; Ex parte 
 Rosenblatt, 19 Nev. 439; Ex parte 
 Hohnan, 36 Tex. Crim. App. 355; 
 Hurford v. State, 91 Tenn. 669; Tal- 
 butt V. State (Tex. Civ. App.), 44 S. 
 W. Rep. 1091; Clements v. Town of 
 Casper, 4 Wyom. 494; State ex reL 
 SeUiger v. O'Connor, 5 N. D. 639; 
 City of Bloomington v. Bourland, 
 137 IIL 534; State v. Brocco, "103 
 N. 0. 349; In re Hennick, 5 Mackey, 
 489; Baxter v. Thomas, 4 OkL 605. 
 3 American Harrow Co. v. Shafler, 
 68 Fed. Rep. 750; In re Nichols, 48 
 Fed. Rep. 164; Hynes v. Briggs, 41 
 
TAXATION. 279 
 
 The "weiglit of authority, however, supports the rule that 
 no tax can be laid upon the occupation of selling goods 
 which have been introduced within the limits of the taxing 
 State, so long as the goods remain in the original imbroken 
 packages.^ 
 
 License Tax Upon Peddlers. — In some cases it has been 
 held that no tax could be laid upon the occupation of ped- 
 dling goods brought from other States.^ The courts have 
 recognized a difference, however, between a peddler and an 
 ordinary salesman. 
 
 From early times in England and America there have 
 been statutes regulating the occupation of itinerant peddlers 
 and requiring them to obtain licenses. It hag long been 
 considered that the business of a peddler traveling from 
 place to place among strangers, might easily be made a pre^ 
 tense or a convenience to those whose real purpose is theft 
 or fraud, and that for this reason the occupation came par- 
 ticularly vsdthin the police jurisdiction of the State. 
 
 It has been held, therefore, that where there is no dis- 
 crimination the State may require a license fee of peddlers, 
 and that such regulation is valid even as applied to those 
 who are engaged solely in peddling imported articles. Such 
 a regulation as this is not a prohibition of, or burden on, 
 their sale, but imposes what may be a necessary regulation 
 upon a particular method of sale.' 
 
 Fed. Eep. 468; Singer Mfg. Co. v. 'Emert v. Missouri, 156 U. S. 396, 
 
 Wright, 33 Fed. Eep. 131; "Weaver afiBrming s. C, 103 Mo. 341; Howe 
 
 v. State, 89 Gra. 639; Metz v. Hagerty, Machine Co. v. Gage, 100 U. S. 676; 
 
 61 Ohio St. 531 ; State v. Pinckney, American Harrow Co. v. Shaffer, 
 
 10 Eich. (S. C. L. E.) 474; Biddle v. 68 Fed. Eep. 750; HaU v. State, 39 
 
 Commonwealth, 13 Serg. & E. 405. Fla. 637 ; City of South Bend v. 
 
 1 In re Tyerman, 48 Fed. Eep. 167 ; Martin, 143 Ind. 31 ; Sears v. Board 
 State V. Shapleigh, 37 Mo. 344 See of Commissioners, 36 Ind. 367; Cole 
 Commonwealth v. Harmel, 166 Pa. v. Eandolph, 31 La. Ann. 535; State 
 St. 89. V. Snoddy, 138 Mo. 533; State v. 
 
 2 Commonwealth v. Walter, 3 Pa. Parsons, 134 Mo. 436; State v. Wes- 
 Dist. Eep. 534; Port Clinton v. sell, 109 N. C. 735; Wrought Iron 
 Shafer, 5 Pa. Dist. Eep. 583. Eange Co. v. Carver, 118 N. C. 328; 
 
380 
 
 TAXATION. 
 
 A State can require that peddlers give proof of good moral 
 character in order to obtain a license,^ and may lay a license 
 tax on peddlers seUiag imported goods; and this is true 
 though the peddUng be from a boat,' and, of course, where 
 the goods sold are not ta the original packages.' 
 
 A State may regulate sales of medicines.* But no license 
 tax on peddlers can discriminate against interstate or foreign 
 commerce.' 
 
 Tax Upon Auctioneers. — The same rule is applied to sales 
 by auctioneers, and license fees upon this occupation have 
 been sustained, when imposed alike upon all sales made 
 within the taxing jurisdiction, whether the goods are the 
 produce of the taxing State or not.' 
 
 Commonwealth v. Gardner, 133 Pa. 
 St. 284; Commonwealth v. Myer, 93 
 Va. 809 ; State v. Richards, 33 W. Va. 
 348; Rash v. Farley, 91 Ky. 344; 
 Howe Machine Co. v. Gage, 9 Bax- 
 ter (Tenn.), 518; Ex parte Butin, 28 
 Tex. App. 304; In re Wilson, 19 D. C. 
 341 ; Ex parte Hosier, 1 Toledo Leg. 
 N. 286; Morrill v. State, 38 Wis. 428; 
 Wynne v. Wright, 1 Dev. & Bat. 19; 
 Cowles V. Brittain, 3 Hawks, 304. 
 Conf. City of Carrollton v. Baz- 
 zette, 159 IlL 284. 
 
 1 Commonwealth v. Harmel, 166 
 Pa. St. 89. 
 
 2 Cole V. Randolph, 81 La. Ann. 
 585. 
 
 8 Wynne v. Wright, 1 Dev. & B. 
 (N. C.) 19; In re Wilson, 19 D. C. 
 ^41; Hall v. State, 39 Fla. 637; Peo- 
 ple V. Sawyer, 106 Mich. 438; State 
 V. Parsons, 134 Mo. 486; State v. 
 Smithson, 106 Mo. 149. 
 
 * State V. Wheelock, 95 Iowa, 577; 
 State V, Parsons, 124 Mo. 436; Com- 
 
 monwealth V. Newhall, 164 Mass. 
 338; State v. Smithson, 106 Mo. 149. 
 
 6 Welton V. State of Missouri, 91 
 IT. S. 275, reversing 55 Mo. 288; In 
 re Watson, 15 Fed. Rep. 511 ; Vines 
 V. State, 67 Ala. 78; State v. Mc- 
 Ginnis, 87 Ark. 362; Ex parte 
 Thomas, 71 CaL 304; Rogers v. Mc- 
 Coy, 6 Dak. 238; City of Marsliall- 
 town V. Blum, 58 Iowa, 184; Rash 
 V. Halloway, 83 Ky. 674; State v. 
 Furbnsh, 72 Me. 493 ; State v. Brown- 
 ing, 62 Mo. 591; State v. Adsit 
 (Mich.), 78 N. W. Rep. 881 ; Common- 
 wealth V. Simons, 3 Pa. Dist. Rep. 
 793; Rothermel v. Zeigler, 7 Pa. Co. 
 Ct. Rep. 505; Commonwealth v, 
 Myer, 93 Va. 809; State v. Pratt, 59 
 Vt. 590; Van Buren v. Downiag, 41 
 Wis. 133. Conf. South Bethlehem 
 V. Hackett, 7 Int. Com. Rep. XXXL 
 
 'Woodruff V. Parham, 8 Wall. 
 133, cited with approval in Emert 
 V. Missouri. 156 U. S. 296-314 
 
taxation. 281 
 
 Taxation of Pueohases and Sales. 
 
 Taxation of occupations by reference to the amount of 
 business done, wben applied to merchants buying and sell- 
 ing goods brought from other States, presents in somewhat 
 different form the questions presented by State taxation of 
 receipts from interstate transportation. 
 
 That such a tax rests usually upon the act of sale appears 
 from the fact that payment does not exempt the property 
 of the taxpayer from its regular taxation borne in common 
 with other property in the State, and also from the fact that 
 a tax upon receipts is not measured by the capital which a 
 merchant employs in his business, but by the number of 
 times his capital may be turned. An active merchant turn- 
 ing his stock four or five times a year will pay four or five 
 times the tax paid by a merchant having an equal capital,, 
 but who sells his stock once. A tax upon the amount of 
 purchases and sales is therefore a tax upon activity, and 
 is for this reason invalid when applied to goods brought 
 from or sent to other States ^ or foreign countries.^ 
 
 In some cases such taxation has been sustained," appar- 
 ently on the ground that the burden fell upon the goods 
 which are the subject of sale;* and where this is the fact, 
 and the goods are taxed like all other property in the State, 
 the circumstance that the tax is laid in the form of a license 
 is not alone sufficient to make it invalid.' 
 
 In most cases in which taxation of purchases and sales 
 has been sustained, the reasons for the decision given in the 
 opiaion of the court are clearly against current authority. 
 Thus, in State v. Pinchney^ it was considered that taxation 
 
 iFicklin v. Shelby County Tax- 566; Gelpi v. Schenok, 48 La. Ann. 
 
 ing District, 145 U.S.I. As to effect 635. 
 
 of decision in the Ficklin case, see ' Harrison v. Mayor of Vioks- 
 
 Brennan v. Titusville, 153 U. S. 389; burg, 3 Sm. & M. (Miss.) 581. 
 
 Stratford v. City Council of Mont- * Ex parte Brown, 48 Fed. Rep. 433. 
 
 gomery, 110 Ala. 619; Louisiana v. 6 Postal TeL Co. v. Adams, 155 
 
 Kennedy, 19 La. Ann. 897. U. S. 688. 
 
 2 Cook V. Pennsylvania, 97 TJ. S. » 87 S. C. L. 474 
 
282 TAxATioijr. 
 
 upon the subjects of interstate commerce "was valid until 
 superseded by Federal legislation. In State v. French ^ the 
 court sustained the tax both upon the ground that it did not 
 rest upon interstate commerce, and also upon the authority 
 of the Mwine Gross Beceipta Case? Neither of these reasons 
 is in accord with the weight of authority. The Maine case, 
 which sustained a tax upon receipts of a foreign corporar 
 tion for the privilege of exercising its franchises within the 
 State, is no authority for taxation of the income of a natural 
 individual. 
 
 In Ex;powie Brown^ the State law imposed, in addition to 
 an ad valorem tax upon stock, a further license tax of one- 
 tenth of one per cent, on the total amount of purchases in or 
 out of the State. Under the Constitution of North Carolina 
 the tax could not be supported as upon property, and could 
 only be sustained as a license tax upon the occupation of 
 buying or selling goods. In this aspect, as applied to the 
 occupation of selling goods brought from other States, it ap- 
 pears to be clearly within the prohibition of the Federal 
 Constitution. 
 
 In Dawis v. Dashiel * a tax of this nature, which discrim- 
 inated against the products of other States, was apparently 
 sustained on the ground that the act of offering the goods 
 for sale at retail brought them within the State jurisdiction, 
 a, doctrine which the same court subsequently disapproved. 
 Whether the tax be valid or not when equally laid, a dis- 
 criminating tax is always void.^ 
 
 1109 N. 0. 733; followed in Stats 45; Sears v. Board of Commission- 
 
 V. Stevenson, 109 N. C. 730. ers of Warren County, 36 Md. 267; 
 
 2 Maine v. Grand Trunk Ey. Co., Biddle v. State, 18 Serg. & E. 405. 
 143 U. S. 317. B Albertson v. Wallace, 81 N. C. 
 
 3 48 Fed. Eep. 435. 479; Daniel v. Trustees of Eich- 
 *61 N. C. 114; Traceyv. State, 3 mond, 78 Ky. 543; State v. North, 
 
 Mo. 3; Seymour v. State, 5'1 Ala, 37 Mo. 464. 
 S3. Conf . People v. Coleman, 4 CaL 
 
CHAPTER IX. 
 
 EEGULATION OF FEEIGHTS AND FAEES. 
 
 It has been said that the power of the States to tax inter- 
 state rates, and their power to regulate these rates, are both 
 determined by the same considerations, and that either tax- 
 ation or regulation of receipts from transportation produce 
 the same result. " It is impossible," said Mr. Justice Miller, 
 " to see any distinction in its effect upon commerce, — be- 
 tween a statute which regulates the charges for transporta- 
 tion, and a statute which levies a tax for the benefit of the 
 State upon the same transportation." ^ The conclusion has 
 therefore been drawn that, when taxation of this character 
 can be sustained, regulation may also be sustained. 
 
 There are, however, practical distinctions between taxa- 
 tion and regulation which have important bearing upon the 
 question. Taxation is measured by the needs and the pol- 
 icy of the State. Its amount is fixed by local conditions. 
 Interstate rates may therefore be taxed without regard to 
 that portion of the transportation which is beyond State 
 limits and jurisdiction. Regulation of rates, on the other 
 hand, necessarily involves consideration of the rate as a 
 whole, with reference to the complete act of transportation. 
 In the case of interstate rates this must always be beyond 
 the power of any single State. " How can Illinois deter- 
 mine what is a reasonable charge for carriage across Indiana, 
 Ohio or Pennsylvania? The reasonableness of such a rate 
 depends, among other things, upon the cost of construction 
 and wages paid beyond her jurisdiction, the amount of cap- 
 italization allowed, and taxes and assessments exacted by 
 other jurisdictions ; the terms of contracts for the interchange 
 
 1 Wabash R. R Co. v. Illinois, 118 Bridge Co. v. Kentucky, 154 XT. S. 
 U. S. 557, 570; Covington, etc. 304, 233. 
 
284 EEGULATION OF FEEIGHTS AND FAEES. 
 
 of freigM between carriers made and allowed under the laws 
 of other States; and the amount of traffic carried, which 
 may, in turn, be affected by laws of the other States govern- 
 ing the acquisition of, or consolidation with other lines. 
 These, and many others, are the elements of the cost of car- 
 riage, and before the reasonableness of a rate can be deter- 
 mined, the cost must be ascertained." ^ 
 
 If one State might regulate with reference to mileage the 
 charges to be made by interstate carriers for transportation 
 within its limits, another State might regulate the charge 
 with reference to expense, and the result might be that the 
 carrier would be so limited in the several States through 
 which he operated that he could not coUect for the whole 
 service a total charge which would be reasonable under the 
 laws of all States. It is therefore weU settled that a State 
 may not regulate interstate rates,^ though it may tax them 
 under certain conditions.' 
 
 State Regulation of Domestic Bates. — Unless restrained 
 by valid contract a State may, directly by the legislature, 
 or indirectly by a commission, regulate freights and fares for 
 
 1 Swift V. Philadelphia, etc. R. E. mutes, 94 Ala. 131 ; State v. Chicago, 
 
 Co., 58 Fed. Eep. 858, 860; Smyth v. etc. E. Co., 70 Iowa, 163; Carton v. 
 
 Ames, 169 U. S. 466, 171 U. S. 361; Illinois Central E. Co., 59 Iowa, 148; 
 
 Fitzgerald v. Construction Co., 41 Commonwealth v. Housatonic, etc. 
 
 Neb. 374. E. Co., 148 Mass. 264; Southern Pa- 
 
 8 Covington, etc. Bridge Co. v. oiflo E. Co. v. Haas (Tex.), 17 S. W. 
 
 Kentucky, 154 U. S. S04; Wabash Eep. 600; Texas, etc. E. Co. v. Clark, 
 
 E. E. Co. V. lUinois, 118 U. S. 557, 4Tex;Civ. App.611; Eailroad Com- 
 
 reversing s. C, 105 111. 336; Mobile, missioners v. Eailroad Co., 33 S. C, 
 
 etc. Ey. Co. v. Sessions, 28 Fed. Eep. 320; Gulf, eta E. R Co. v. Miami 
 
 593; Fai-mers' Loan & Trust Co. v. S. S. Co., 86 Fed. Eep. 407. Conf. 
 
 Stone, 20 Fed. Eep. 270; Illinois Chicago, B. & O. E. E. Co. v. Iowa, 
 
 Central E. Co. v. Stone, 30 Fed. Eep. 94 U. S. 154; Peik v. Chicago & N. 
 
 468; LouisviUe, etc. E. Co. v. EaU- W. Ey. Co, 94 U. S. 164; Stone v. 
 
 road Commission of Tennessee, 19 Yazoo, etc. E. Co., 62 Miss. 607; 
 
 Fed. Eep. 679, 713; Pacific Coast Hall v. South Carolina E. Co., 25 
 
 Steamship Co. v. EaUroad Commis- S. C. 564; ante, p. 183. 
 sioner, 18 Fed. Eep. 10; Kaeiser v. 3 Maine v. Grand Trunk Ey. Co., 
 
 Illinois, etc. E, Co, 18 Fed. Rep. 143 U. S. 217. 
 151; Mobile, etc. Ey. Co. v. Dis- 
 
EEGULATION OF FEEIGHTS AND FAEES. 285 
 
 transportation -wholly witliin its limits; provided, however, 
 that carriage is not required upon terms that amount to the 
 depriving of liberty or property without due process of law 
 or a denial of the equal protection of the law;^ and that 
 what is done does not amount to a regulation of foreign or 
 interstate commerce.* 
 
 In its regulation of rates for transportation beginning 
 and ending within the State, the reasonableness of the charge 
 must be determined with reference solely to the business 
 done by the carrier within the State, and without regard to 
 its interstate business or profits. " The state cannot justify 
 unreasonably low rates for domestic transportation, consid- 
 ered alone, upon the ground that the carrier is earning large 
 profits on its interstate business, over which, so far as rates 
 are concerned, the state has no control. Nor can the carrier 
 justify unreasonably high rates on domestic business upon 
 the ground that it will be able only in that way to meet 
 losses on its interstate business. ... It is only rates for 
 the transportation of persons and property between points 
 within the state that the state can prescribe ; and when it 
 undertakes to prescribe rates not to be exceeded by the car- 
 rier, it must do so with reference exclusively to what is just 
 and reasonable, as between the carrier and the public, in re- 
 spect of domestic business." ' 
 
 It has been argued that an exception to the rule should be 
 made in favor of corporations which derive their franchises 
 from the Federal government and whose authority to charge 
 
 1 Fourteenth Amendment, U. S. Co., 116 U. S. 307; Ruggles v. 1111- 
 Const. nois, 108 U. S. 531; Granger Cases, 
 
 2 Smyth V. Ames, 169 TJ. S. 4€6; 94 U. S. 155, 164, 180; Chicago, B. & 
 Eeagan v. Farmers' Loan & Trust Q. R. Co. v. Jones, 149 IlL 861; Bal- 
 Co., 154 U. S. 363; Brass v. North timore & Ohio JEt. E. Co. v. Mary- 
 Dakota, 158 U. S. 391; Budd v. New land, 31 Waa 456; Chicago & N. 
 York, 148 U. S. 517; Railway Co. v. W. E. Co. v. Dey, 85 Fed. Eep. 866; 
 Minnesota, 134 U. S. 418; Dow v. Ames v. Union Paciflo E Co., 64 
 Beidelman, 185 U. S. 680; Georgia Fed. Eep. 165; Central Union Tele- 
 Eaikoad and Banking Co. v. Smith, phone Co. v. State, 118 Ind. 194 
 138 U. S. 174; Wabash E. R. Co. v. 3 Smyth v. Ames, 169 U. S. 466, 
 IlHnois, 118 U. S. 557 ; Stone v. Trust 541. 
 
286 EEQULATION OF FEEIGHTS AJSB FAEES. 
 
 and collect tolls is not derived from the State. It is well 
 established, however, that while Congress might remove 
 such a corporation in all its operations from State control, 
 nevertheless, in the absence of an express provision, the fact 
 alone that the corporation affected derives its charter powers 
 from the Federal government does not deprive the States of 
 the right to regulate freights and fares for domestic trans- 
 portation.* 
 
 In Shipper v. Permsylvcmia Ry. Co? an instance may be 
 found of regulation of domestic rates which would prob- 
 ably under present decisions be considered unconstitutional. 
 In this case the question concerned the rate to be charged 
 by the railway company for transportation of flour from 
 Pittsburg to Philadelphia. It was shown that the flour was 
 manufactured in Yirginia and sent by the owner to Pitts- 
 burg, where it was delivered to the carrier. The railway, in 
 accordance with a State law which required, it to make a 
 reduction of charges for the transportation of local freight 
 equal to a tonnage duty imposed thereon by the State, 
 charged the shippers a greater rate for carriage from Pitts- 
 burg to Philadelphia than was required for the transporta- 
 tion of flour manufactured in the State. This discrimination 
 was upheld. The result of such a statute is the imposition of 
 a burden upon goods imported from foreign States by reason 
 of their foreign origin; and this, whether under the guise of 
 a regulation of domestic transportation or not, is, according 
 to the modern rule, beyond the power of any State. 
 
 Federal Regulation of Interstate Rates. — It has been 
 argued that the commerce clause of the Constitution does 
 not confer upon Congress the power to flx rates for inter- 
 state transportation. Commerce, it is said, includes the sale 
 and exchange of commodities as well as their transportation, 
 and if a power to fix prices is derivable from the word " reg- 
 
 1 Smyth V. Ames, 169 U. S. 466; U. S. 413; Ames v. Union Pao. R. R. 
 Reagan v. MercantUe Trust Co., 154 Co., 64 Fed. Rep. 165. 
 
 2 47 Pa. St. 338. 
 
EEGTJLATION OF FEEIGHTS Am> FAF-ES. 287 
 
 ulate," it would include as mucli the prices for which sub- 
 jects of commerce should be sold as the rates for which they 
 should be carried. 
 
 In any event the relation of Congress to interstate coni- 
 merce is different from that of the States to domestic com- 
 merce. E.ailroad franchises, with few exceptions, are granted 
 by the States, not by the Federal government. 
 
 It is necessarily admitted, however, that Congress has the 
 power to prevent unjust discrimination in interstate trans- 
 portation, and to provide for actions at law to recover for 
 unreasonable charges. If Congress may prohibit unreason- 
 able charges, it must have power to establish what charges 
 shall be reasonable. "When the framers of the Constitution 
 granted to Congress power to regulate commerce, they con- 
 ferred upon the Federal government the power of commer- 
 cial regulation as it was then known, varying in extent with 
 the subject to which it was applied. That regulation of 
 charges of common carriers was a commercial regulation 
 was well understood; but it was equally weU understood 
 that there were many private transactions over which gov- 
 ernmental power was more limited. It was recognized that 
 the States could regulate charges of common carriers for 
 domestic carriage. If they were deprived of this power over 
 interstate transportation, it must have been lodged some- 
 where, and it is now settled is found in the clause which gives 
 to Congress plenary powers of regulation of rates for inter- 
 state^ and foreign^ commerce, subject to the constitutional 
 limitations ; for instance, such as are contained in the Fifth 
 Amendment, that no person shall be deprived of liberty or 
 property without due process of law, and that private prop- 
 
 1 Covington & Cincinnati Bridge 168; Kattffman Milling Co. v. Mis- 
 Co. v. Kentucky, 154 TJ. S. 304; Air sonri Pacific Ey. Co., 3 Int. Com. 
 lantic & Pacific Ry. Co. v. United Eep. 400. 
 
 States, 76 Fed. Rep. 186; Canada 2 New York Board of Trade v. 
 
 Southern Ry. Co. v. International Pennsylvania R. Co., 3 Int. Com. 
 
 Bridge Co., 8 Fed. Rep. 190; BuUard Rep. 417; In re Grand Trimk Ry. 
 
 V. Northern Pacific R. Co., 10 Mont. Co., 2 Int. Com. Rep. 496. 
 
288 EEGULATION OF FEEIGHTS AND FAEES. 
 
 erty shall not be taken for public use "without just compen- 
 sation. 
 
 The Interstate Commerce Act. — This authority Congress 
 has exercised by the passage of the act to regulate com- 
 merce.^ The first section of this act requires all charges by 
 railway carriers, engaged in interstate transportation, to be 
 reasonable, and prohibits every unjust and unreasonable 
 charge for such service. The second section defines unjust 
 discrimination. The third section prohibits undue or unrea- 
 sonable preferences to persons or localities, and requires that 
 carriers, subject to the provisions of the act, afford equal 
 facilities for the interchange of traffic Avith other lines, and 
 prohibits discrimination by carriers between connecting Lines. 
 The fourth section, known as the long and short haul clause, 
 prohibits a greater charge for a shorter than for a longer 
 distance over the same line, in the same direction, under 
 substantially similar circumstances and conditions. Upon 
 application to the Commission, however, the carrier may, in 
 special cases, after investigation by that body, be authorized 
 to charge less for longer than for shorter distances.^ In the 
 fifth section it is made unlawful for any carrier, subject to 
 the provisions of the act, to enter into any pooling contract 
 with other carriers. The sixth section requires publication 
 of rates, forbids change of rates except upon public notice, 
 requires carriers to file with the Commission copies of traffic 
 contracts with other carriers and of schedules of joint tariffs 
 of rates, and prohibits collection of other charges than those 
 specified in such schedules. 
 
 The eleventh section establishes a Commission known as 
 the Interstate Commerce Commission, which by the twelfth 
 section is charged with the duty of inquiring into the man- 
 agement of the business of common carriers and of executing 
 
 1 Act of Feb. 4, 1887, 34 Stat. L. L. 443; Interstate Commerce Com- 
 
 379, Supp. Ebt. Stat. 539, amended mission v. B. & O. E. Co., 145 U. S. 
 
 by acts of March 3, 1889, 35 Stat. L. 363. 
 
 855, Supp. Eev. Stat. 684; Feb. 10, 2 As to validity of this clause, see 
 
 1891, 26 Stat. L. 743, oh. 128, 1 Supp. post, pp. 813, BIB. 
 Eev. Stat. 891 ; Feb. 11, 1898, 37 Stat 
 
EEGinATION OF FREIGHTS AND FAKES. 289 
 
 the provisions of the act. The Commission is authorized to 
 issne subpoenas requiring attendance of witnesses and pro- 
 duction of books and papers, and, in case of refusal of any 
 witness to attend and testify, the order of the Commission 
 is to be enforced by the United States Circuit Court upon 
 application of the Commission. 
 
 In effect, " subject to the two leading prohibitions that 
 their charges shall not be unjust or unreasonable, and that 
 they shall not unjustly discriminate^ so as to give undue 
 preference or disadvantage to persons or traffic similarly 
 circumstanced, the Act to regulate commerce leaves common 
 carriers as they were at the common law, free to make special 
 contracts looking to the increase of their business, to clas- 
 sify their traffic, to adjust and apportion their rates so as to 
 meet the necessities of commerce, and generally to manage 
 their important interests upon the same principles which 
 are regarded as sound, and adopted in other trades and 
 pursuits." ' The railroads are limited, however, to the rates 
 which they have fixed and published, and a contract to trans- 
 port goods at a different rate cannot be enforced.^ 
 
 The provisions which have been referred to, and which 
 adopt certain of the common-law duties of carriers as part 
 of the Federal law, have been substantially unquestioned, 
 but the portions of the statute which relate to the powers of 
 the Interstate Commerce Commission have been the subject 
 of considerable litigation. 
 
 The Commission is undoubtedly an executive body. It 
 cannot be judicial, for its members are not appointed to hold 
 office during good behavior; ' and it is equally clear that it 
 
 'Interstate Commerce Commis- S.W.Rep.609; Gerber v. Wabash R 
 
 sion V. Railway Co., 167 U. S. 479, Co., 63 Mo. App. 145; Raleigh, etc. 
 
 493 ; Interstate Commerce Commis- R. Co. t. Swanson (Ga.), 38 S. E. Rep. 
 
 sion V. B. & O. Ry. Co., 43 Fed. 601. Contra, Mobile, etc. R. Co. v. 
 
 Eep. 37. Dismukes, 94 Ala. 133. 
 
 2 Chicago, etc. R. Co. v. Hubbell, ^ Kentucky Bridge Co. v. Louis- 
 
 64 Kan. 332; Savannah, etc. R. Co. v. viUe & N. R. R. Co., 87 Fed. Rep. 
 
 Bundick, 94 Ga. 775; Houston, etc. 567, 613. 
 R. Co. V. Dumas (Tex. Civ. App.), 43 
 19 
 
290 EEGULATION OF FEEIGHTS AlTD FABES. 
 
 is not a legislative body.^ The duties with, which it is 
 charged — to enforce the provisions of the act — require that 
 it shall investigate the management of railway companies ; 
 determine in specific cases whether the rates charged are 
 reasonable or not, and whether the carriers have been guilty 
 of unjust discrimination. It has no authority to prescribe 
 mEiximum or minimum or absolute rates, and this result can- 
 not be secured indirectly by determining what rates were 
 reasonable in the past, and then procuring from the courts 
 an order that, in the future, carriers adopt these rates. To 
 prescribe future rates is a legislative act which the Oommis- 
 sion is not authorized to perform.* 
 
 It is weU established that the inquiry as to the past — 
 whether rates which have been charged and coUeoted were 
 reasonable — is judicial,' and it has been urged that this in- 
 vestigation is as much beyond the power of an executive 
 body as would be the exercise of legislative functions. 
 
 The Brimson Case. — This difficulty appears even more 
 strongly in cases where the Commission has attempted to 
 compel attendance and testimony of witnesses to determine 
 whether the law had been violated. Investigation to deter- 
 mine whether or not parties were guilty of past violations of 
 law, it has been argued, is essentially of a judicial nature, 
 and in conducting such an investigation the Commission, in 
 effect, duplicates the functions of the grand jury. 
 
 'Interstate Commerce Commis- Fed. Eep. 611; Thatcher v. Fitch- 
 
 sion V. Railway Co., 167 U. S. 479 burg R. Co., 1 Int. Com. Rep. 356; In- 
 
 501. terstate Commerce Commission v. 
 
 2 Interstate Commerce Commis- Lehigh Valley R Co., 74 Fed. Rep. 
 
 sion V. Alabama Midland Ry. Co., 168 784 ; Interstate Commerce Commis- 
 
 U. S. 144, affirming 74 Fed. Rep. 715 ; sion v. Northeastern R. Co., 74 Fed. 
 
 Interstate Commerce Commission Rep. 70; Interstate Commerce Com- 
 
 V. Railway Co., 167 U. S. 479; Inter- mission v. L. & N. R. Co., 73 Fed. 
 
 state Commerce Commission V. Cin- Rep. 409; Cary v. Eureka Springs 
 
 cinnati, N. O. & T. Pac. Ry. Co., 163 R. E. Co., 7 Int. Com. Rep. 386. 
 
 U.S. 184; Farmers' Loan & Trust Co. 'Interstate Commerce Commis- 
 
 V. Northern Pacific Ry. Co., 83 Fed. sion v. Cincinnati, New Orleans, 
 
 Rep. 349; Interstate Commerce Com- etc. R. Co., 167 U. S. 479, 499. 
 mission v. Northeastern R. Co., 83 
 
EEGULATIOIf OF FREIGHTS AND FAEES. 291 
 
 If Congress may authorize such inquiry by a commission 
 of distiaguislied citizens, it may confer lite power on a single 
 individual for the entire country, or on a different individual 
 for each State or county, or may attach it as a duty to an 
 existiag office, such as that of postmaster or United States 
 marshal. It may thus constitute an indefinite number of 
 citizens into examiners, armed with inquisitorial authority 
 and a roving commission. Such investigations have no bear- 
 ing on legislation; for, even if it were discovered that exist- 
 ing laws have been violated, the remedy is not to pass more 
 laws, but to punish the violators. 
 
 It has been also argued that the Interstate Commerce Act 
 imposes no duty upon witnesses to answer the questions of 
 the Commission. 
 
 " It is true that authority is conferred upon the commis- 
 sion to obtain information, but the act does not impose the 
 duty to furnish it upon all persons interested ia interstate 
 commerce ; and Congress cannot invest the commission with 
 discretionary powers to create or not create a duty. . . . 
 Suppose a law was enacted making criminal the refusal to 
 answer questions put by a commission, (and a statute would 
 be necessary before such refusal could be adjudged criminal, 
 for there are no common-law offenses against the United 
 States — United States v. Eaton, 14A TJ. S. 6YY) would it not 
 be necessary that the statute define the questions, or at 
 least the scope of the questions to be asked ? Would not an 
 act be void for indefiniteness, and lack of certainty, which 
 simply made criminal the refusal to answer relevant ques- 
 tions in any proper investigation carried on before a com- 
 mission." ^ 
 
 Turthermore, it was said that, whether a duty were cre- 
 ated or not, there was no case or controversy of which a 
 Federal court could take jurisdiction. 
 
 An application to compel a witness to answer a question, 
 it has been said, is not a case. The statute itself appears to 
 recognize that the investigation is elsewhere than in court, 
 1 Dissenting opinion of Mr. Justice Brewer, 155 IT. S. 3. 
 
292 BEGULATION OF FEEIGHTS AND TABES. 
 
 for the terms of the law are that the Commission " may invoke 
 the aid of any court of the United States, in requiring the 
 attendance and testimony of witnesses," etc. If every time 
 the Commission claimed the right to an answer to a question, 
 and the witness denied the right, a case or controversy had 
 arisen under the Constitution, the witness could make every 
 separate question the subject of a separate application to the 
 court, with the consequent right of appeal. This would pre- 
 sent the extraordinary spectacle of the Supreme Court or 
 Circuit Court of Appeals deciding in succession a series of 
 objections to evidence arising in a controversy carried on 
 before an executive body. 
 
 As concerned the powers of the Commission the alterna- 
 tive appeared to be, therefore, that if the subject-matter of 
 the investigation committed to the Commission were judi- 
 cial, that body was incompetent, under the Constitution, to 
 carry them out; while, on the other hand, if the subject- 
 matter were such as could be committed to an executive 
 body, it must be non-judicial in character and beyond the 
 " aid " of the Federal courts. These objections were consid- 
 ered in the case of Interstate Commerce Commiission v. Crim- 
 son} The majority of the court in that case held that the 
 act of Congress authorizing the Commission to summon wit- 
 nesses and requiring the production of books and papers is 
 a valid provision, imposing an obligation upon every one 
 within Federal jurisdiction. As each citizen is bound to 
 obey the law and yield obedience to constituted authorities 
 acting within the law, this power conferred upon the Com- 
 mission imposed upon any one summ.oned by that body the 
 duty to appear and testify. • The question whether the Com- 
 mission is, under the law, entitled to the evidence it seeks, 
 and whether the refusal of the witness to testify is, or is not, 
 in violation of his duty or in derogation of his rights, when 
 it arises and is presented in the form prescribed by the act of 
 Congress, is a judicial question, and constitutes a case. It is 
 
 1154 U. S. 447. For opinion of In re Interstate Commerce Com- 
 dissenting justices, see 155 U. S. 3; mission, 53 Fed. Rep. 476. 
 
EEGULATION OF FREIGHTS AUD FARES, 293 
 
 substantially the question whicli would arise if the witness 
 were proceeded agaiast by an indictment. 
 
 Congress has plenary power, subject to the limitations im- 
 posed by the Constitution, to prescribe the rule by which 
 commerce among the several States is to be governed. It 
 cannot be disputed that the prohibition of unjust charges, 
 discriminations or preferences by carriers engaged in inter- 
 state commerce is a proper regulation. Such prohibition 
 may be enforced by criminal proceedings. Eefusal of wit- 
 nesses to testify to facts within their knowledge, showing 
 whether or not the law had been violated, might be punished 
 by indictment and trial under the criminal law. If Congress 
 has power to accomplish this result indirectly by particular 
 forms of judicial procedure, it must have power to accom- 
 plish the same result directly and by a different proceeding, 
 judicial in form. An adjudication that Congress could not 
 establish an administrative body with authority to investi- 
 gate the subject of interstate commerce, and with power to 
 call witnesses and to compel the production of books and 
 papers, would go far to defeat the object for which the peo- 
 ple of the United States placed commerce among the States 
 under national control. 
 
 Eule in the Absence of Federal Statute. — In some cases 
 State regulations affecting interstate rates have been sus- 
 tained upon the ground that a State has jurisdiction, not 
 over the rates, but over the charter of the carrier. An un- 
 just discrimination, whether for interstate or domestic trans- 
 portation, it is said, is a misuse of the corporate franchise, 
 and may be remedied by the State from which the franchise 
 is derived.' This rule, if sustained, would indirectly bring 
 within State control the whole field of interstate commerce, 
 which, by the Constitution, is given to the Federal govern- 
 ment, and the rule; which is supported by the weight of au- 
 thority, is that a State cannot, by regulation of charter or 
 
 1 State V. Cincinnati, etc. R. E. Coal Co. v. Providence & Worces- 
 Co., 47 Ohio St. 130; Providence ter E. E. Co., 15 E. I. 303. 
 
294 EEGTTLATION OF FBEIGHTS AISTD FAEES. 
 
 otherwise, forbid discrimination by railroad companies in 
 rates for interstate transportation.^ 
 
 Begulation of Warehouse Bates. — The business of assort- 
 ing and handling grain in "warehouses and elevators is af- 
 fected with a public interest, and subject to the police power 
 of the State in the regulation of its rates ^ and obligations.' 
 
 In Buddj V. JVew York * the court called attention to the 
 fact that a large proportion of the surplus cereals of the 
 country passes through the elevators on the lakes, by the Erie 
 canal and Hudson river, to the seaboard of New York, 
 where it is distributed to the markets of the world ; that 
 the business of elevating grain is incident to transportation, 
 and that elevators are indispensable instrumentalities in the 
 business of the common carrier, in a broad sense themselves 
 performing the work of carriers; that by their means trans- 
 portation of grain from the upper lakes to the seaboard is 
 rendered possible, and that the business of elevating grain 
 has thus a vital relation to commerce in one of its most im- 
 portant aspects, so that every excessive charge made in the 
 course of the transportation of grain is itself a tax upon com- 
 merce. 
 
 It would seem that the regulation of such a business might 
 well have been considered as beyond the power of the State. 
 The decision of the court is, however, that regulation of 
 warehouse rates operating only within the limits of a single 
 State is analogous to the regulation of wharfage and other 
 similar charges.* 
 
 Local Regulations Affecting Bates. — Many regulations 
 which incidentally affect freights and fares derived from in- 
 
 iGatton V. Chicago, etc. E. E. 2 Muim v. Ulinois, 94 U. S. 13,3, 69 
 
 Co., 95 Iowa, 113; "Wigton v. Penn. 111. 80; In re Pinto, 50 Him, 413. 
 
 E. E. Co., 8 Pa. C, C. Eep. 191 ; Louis- » Brass v. Dakota, 153 U. S. 391, 2 
 
 vUle, etc. E. Co. v. Eailroad Com- N. Dak. 482. 
 
 mission of Tennessee, 19 Fed. Eep. * 143 IT. S. 517. 
 
 679, 711. Contra, GuK, etc. E. E. 6Id.; Brassv.Stoeser,153I7.S.391, 
 
 Co. V. Barry, — Tex. Civ. App. — , afBnning the same case, 3 N. Dak. 
 
 45 S. W. Eep. 814 482. 
 
EEGULATION OF FKEIGHTS AITD FAKES. 295 
 
 terstate commerce are regarded as police regulations within 
 the power of a State. Of this class is the requirement that 
 rates of interstate transportation should be made public and 
 posted in a certain manner, -which it has been held, in the ab- 
 sence of Federal legislation, is within the authority of the 
 State.i This subject being now covered by Federal legisla- 
 tion is not open to State legislation. It is still held, how- 
 ever, that States may require railroad companies, before the 
 arrival of passenger trains at stations where there is a tele- 
 graph office, to post information whether the train is on 
 schedule time.^ A statute providing that railroad companies 
 should not increase rates after the tender of freight has also 
 been sustained as applied to interstate shipments.' 
 
 lEailroad Co. v. Fuller, 17 WaU. 2 state v. Indiana, etc. E. R. Co., 
 
 560; Fuller V. Eailroad Co., 31 Iowa, 133 Ind. 69; State v. Pennsylvania 
 
 187, 211 ; Eailroad Co. v. Hefley, 158 R. E. Co., 133 Ind. 700. 
 
 U. S. 98, 103; Stone v. Eailroad Co., ' Chicago, etc. E. E. Co. v. Wol- 
 
 116 TJ. a 307, 334 cott, 141 Ind. 267. 
 
CHAPTER X. 
 REGULATION OF CORPORATE FRANCHISEa 
 
 A franchise, as defined by Mr. Justice Bradley in Calif or- 
 nia V. Rail/road, Co.^ " is a right, privilege or power of pub- 
 lic concern, which ought not to be exercised by private 
 individuals at their mere will and pleasure, but should be 
 reserved for pubUo control and administration, either by the 
 government directly, or by public agents, acting under such 
 conditions and regulations as the government may impose 
 in the public interest, and for the public security." 
 
 For the purpose of this consideration, franchises may be 
 divided into two classes : those of corporate existence and 
 those of corporate powers ; or, to use a common phrase, fran- 
 chises to be and franchises to do. " "When the legislature 
 grants a charter of incorporation, it confers upon the grantees 
 of the charter the right or privilege of forming a corporate 
 association, and of acting within certain limits in a corpo- 
 rate capacity, and this right or privilege is called the corpo- 
 rate franchise. . Sometimes charters of incorporation 
 confer additional rights which do not pertain to the forma- 
 tion of the association, as, for example, the right to take 
 private property under the power of eminent domain, or the 
 exclusive right of establishing a ferry and charging tolls. 
 These rights are also called franchises." ^ 
 
 An examination of the cases shows that, as regards cor- 
 porations engaged in interstate commerce, franchises of the 
 first class may be taxed by the State by which they were 
 granted. Franchises of the second class, so far as exercised 
 in interstate commerce, cannot be taxed or directly regu- 
 
 1 137 U. S. 40. tions, sea 933, citing Paul v, Vir- 
 
 2 Morawetz on Private CJorpora- ginia, 8 Wall 168, 
 
KEGTJIATION OF OOEPOEATB FEAJS'OHISES. 297 
 
 lated by the State;' for, if the corporation derives from the 
 State the power to exercise these franchises within its lim- 
 its, its further right to esercise them in commerce between 
 States is an added grant conferred by the Federal Consti- 
 tution. An illustration of the difference between the power 
 of the States in the two classes referred to is found in Wig- 
 gins Ferry Co. v. East St. Louis? In this case a license tax 
 laid by the city of East St. Louis upon a corporation of Illi- 
 nois for the privilege of maintaining a ferry across the Mis- 
 sissippi river was sustained. 
 
 The right to maintain a ferry, it was said, is, like a grant 
 of incorporation, a sovereign grant. The power of the State 
 to impose a license tax on trades or callings generally, espe- 
 cially those which are quasi-public, cannot be disputed. Dray- 
 men may be compelled to pay a license tax on every dray 
 owned by them, and hackmen on every hack. The Consti- 
 tution of the United States does not protect the keeper of a 
 ferry from a similar tax upon the boats which he employs, 
 for the tax is not upon interstate commerce, but upon the 
 right derived from the State to maintain a ferry, and is the 
 same whether the ferry-keeper is or is not engaged in inter- 
 state commerce. The fact that the ferry crosses a river 
 which divides two States cannot of itself change the nature 
 of the exaction. 
 
 A tax on the corporate franchise is a tax on the privilege 
 of corporate existence with the possession of certain pow- 
 ers. Such existence has no relation to interstate commerce 
 without the exercise of the powers conferred. To tax the 
 creature, or the means whereby it is brought into being, is 
 a tax on the corporate franchise, not a tax upon operations 
 of the creature in interstate commerce. It would hardly be 
 
 iCase of State Freight Tax, 15 vania, 136 IT. S. 114; Maine v. Grand 
 
 WaU. 332; State Tax on Gross Trunk Ey. Co., 143 U. S. 317; San 
 
 Freight Receipts, 15 Wall 384; Francisco v. Telegraph Co., 96 CaL 
 
 Fargo V. Michigan, 131 U. S. 330; 140. 
 
 Steamship Co. v. Pennsylvania, 133 2 107 U. S. 365. 
 U. S. 336; Railroad Co. v. Pennsyl- 
 
298 EEGULATION OF COEPOKATE FEANOHISES. 
 
 doubted that, as far as interstate commerce is concerned, a 
 tax on the corporate franchise of a railroad company -would 
 be valid, although activity had ceased with the completion 
 of its organization, and it had made no attempt to exercise 
 its other franchises. A tax on a corporation is not invalid 
 merely because it has the power of engaging in interstate 
 commerce. It must actually be so engaged to secure im- 
 munity.^ 
 
 On the other hand, the exercise of the franchise to engage 
 in interstate commerce may not be burdened. If, in the 
 Wiggins case, the tax had been laid upon the number of 
 times the boats crossed the Mississippi river or landed on the 
 Illinois side, it would have been a tax upon franchises of 
 the second class enumerated above, and beyond the power 
 of the State. This was the decision in Gloucester Ferry Co. 
 V. Pennsyh)cmia^ where the question concerned the validity 
 of a law of Pennsylvania taxing a proportionate share of 
 the capital stock of a ferry company created by Delaware. 
 This tax rested partly upon its business in landing and re- 
 ceiving passengers at the wharf in Philadelphia, and was 
 therefore unconstitutional. A tax or burden imposed upon 
 the property of a domestic or foreign corporation because used 
 to carry on interstate commerce, or upon the exercise of its 
 powers in the transaction of interstate commerce, is invalid. 
 
 Stimulations in Charters. — A State may exact a bonus for 
 the grant of a franchise, and this exaction may take any form 
 which is agreed upon by the parties. The State may im- 
 pose as a condition of the grant, as well as also of its con- 
 tinued exercise, the payment of a specijB.c sum each year, or 
 may require a portion of the receipts of the corporation, and 
 may prescribe such mode in which the sum shall be ascer- 
 tained as may be convenient and just. There is no consti- 
 tutional inhibition against the adoption of any mode to 
 
 1 Honduras, etc. Association v. 163 U. S. 167; Central Pacific R. R. 
 State Board, 54 N. J. L. 279; Sonth- Co. v. California, 163 TJ. S. 91. 
 em Pacific E. E. Co. v. California, =114 U. S. 196, 311- 
 
EEGULATION OF CORPOEATE FBANOHISES. 299 
 
 arrive at the sum which the State will exact as a condition 
 of the creation of the corporation or of its continued existr 
 ence.^ 
 
 In Bail/road Go. v. Marylcmd'^ the charter of the company 
 contained a stipulation that at the end of every six months 
 one-fifth of the whole amount received for the transporta- 
 tion of passengers should be paid to the State. This stipu- 
 lation was sustained as a compensation for the grant of 
 franchises which the State had the right to grant or to with- 
 h jld, at its discretion. 
 
 In liwritcm cfe Delwwa/re Bay R. B. Co. v. Deloma/re & Bar- 
 item Ganal Co.^ a charter requirement that a railroad com- 
 pany should pay the State ten cents for each passenger was 
 considered a valid contract between the State and the car- 
 rier, even as applied to interstate commerce.* The same 
 conclusion was reached in the case of Camden & Amboy 
 By. Co.^ where a restriction in the charter upon the amount 
 of transportation charges was held to apply to interstate 
 transportation; and in Missouri it has been held that a State 
 may, as a condition for the grant of a ferry license over a 
 river between States, limit the charge to be made for the 
 round trip.* 
 
 It has also been held that a stipulation in a charter by 
 which the State gives to the grantee the exclusive right of 
 transportation for a certain period is a valid contract. No 
 State can be compelled to make a railroad, a canal, or any 
 other highway, nor can it be compelled to keep in repair 
 those highways which it may have constructed or author- 
 ized. If, then, it may exercise a discretion to build, or to 
 refuse to build, a road, it follows that it may agree to ab- 
 stain for a definite period from building a certain road. 
 
 1 Horn Silver Mining Co. v. New ' 18 N. J. Eq. 546. 
 
 York, 143 U. 8. 305, 313; Co-vington, *See also Pennsylvania R. Ca 
 
 etc. Bridge Co. v. Kentucky, 154 v. Commonwealth, 3 Grant's Cas. 
 
 U. S. 204, 210. 128. 
 
 2 21 Wall. 456; S. C, 34 Md. 344; 5 33 n. J. Law, 628. 
 
 Bailroad Co. v. Maryland, 45 Md. « state v. Sickmann, 65 Mo. App, 
 696. 499. 
 
300 EEGULATIOU OF COEPOEATE FEAJSTCHISES. 
 
 Whether a given improvement is, or will be, required within 
 a certain time is a question addressed to the discretion of 
 the legislative department of the government.^ 
 
 The difference between an obligation which the company 
 thus voluntarily assumes by contract in its charter or other- 
 wise, and a tax laid upon its receipts, is in the purpose of the 
 payment. A tax upon receipts is a tax because of transpor- 
 tation, and is therefore a tax upon transportation. The 
 sum paid by the railroad company to the State as a condi- 
 tion of the grant of a franchise is a compensation paid for the 
 franchise itself, and is one of the expenses of maintenance, 
 its origin being found in a commercial contract voluntarily 
 made, and not in. a governmental regulation imposed. The 
 same rule has been applied to foreign corporations seeking 
 a grant of corporate power from another State. In Ashley v. 
 Syam, ^ it was held that a State, in permitting a foreign cor- 
 poration to become one of the constituent elements of a con- 
 solidated corporation organized under its laws, may impose 
 such conditions upon the grant of its franchises as it deems 
 proper, and the acceptance of the franchises implies a sub- 
 mission to the condition without which they could not have 
 been obtained. In this case the State required a payment 
 by the corporation based upon its entire authorized capital 
 stock. This requirement, if imposed as a tax, would have 
 been invalid. It was, however, within the discretion of the 
 State to withhold or to grant the privilege of corporate ex- 
 istence, and it followed that it might impose whatever con- 
 
 iRaritan & Delaware Bay Ey. shall v. Grimes, 41 Miss. 37; Mayor 
 Co. V. Delaware & Earitan Canal of New York v. Starin et aL, 106 
 Co., 18 N. J. Bq. 546; Fanning v. N. Y. 1; Mayor of New York v. 
 Gregoire, 16 How. 534; Burlington N. J. Steamboat Navigation Co., 106 
 & Henderson Ferry Co. v. Davis, 48 N. Y. 38; Nixon v. Eeid, 8 S. Dak. 
 Iowa, 188; Phillips v. Town of 507; MUls v. County of St. Clair, 3 
 Bloomington, 1 Greene (Iowa), 498; GiL 197; Newport v. Taylor's Exec- 
 United States V. Fanning, 1 Morris utors, 16 B. Mon. 699. See Opiaion 
 (Iowa), 348; Conway v. Taylor's of Mr. Justice Field ia Pensacola 
 Executor, 1 Black, 603; Challiss v. TeL Co. v. W. U. TeL Co., 96 U. S. 1. 
 Davis, 56 Mo. 35; CarroU v. Camp- 2 153 xj. S. 436. 
 bell, 108 Mo. 550, 110 Mo. 557; Mar- 
 
KEGIILATION OF COKPOEATE FEAJJOHISES. 301 
 
 ditions it deemed fit, as a prerequisite of corporate life. The 
 exaction therefore constituted no tax upon interstate com- 
 merce or the instruments thereof, and its enforcement in- 
 volved no attempt on the part of the State to extend its 
 taxing power beyond its tetritorial limits.^ 
 
 A State may not, however, even by charter stipulations or 
 by contract with the carrier, acquire the right to regulate 
 foreign or interstate commerce.^ Keservations in the charter 
 which give the State something more than compensation for 
 its franchises are invalid. The State may not, for instance, 
 acquire by contract authority to regulate rates, or the order 
 in which goods shaU be forwarded, or the accommodations 
 of passengers. 
 
 It is probable, too, that here, as elsewhere, discrimination 
 against other States would be within the constitutional pro- 
 hibition. In OoThswm&rs' , etc. Gas Co. v. JffaHess ' it was held 
 that the State, while conferring the power of eminent do- 
 main upon corporations organized to transport natural gas 
 and petroleum from point to point within the State, might 
 deny that power to corporations.organized to transport these 
 products out of the State. It is doubtful whether this de- 
 cision is in accord with present doctrine. The power of emi- 
 nent domain is, it is true, within the right of a State to grant 
 or withhold. It may be denied to aU corporations, or may 
 be given only to a favored few, and the exercise of the leg- 
 islative discretion in this respect, if otherwise constitutional, 
 is not open to review. When, however, a privilege is granted 
 to domestic carriers which is denied to interstate carriers, a 
 burden is imposed upon the exercise of a constitutional right. 
 An analogous case may be found in those statutes by Avhich 
 States have sought to make it a condition of the right of 
 
 1 Ashley V. Eyan, 153 TJ. S. 436; 138. Conf. Moline Plow Co. v. Wil- 
 
 Maine v. Grand Trunk Ey. Co., 143 kinson, 105 Mich. 57. 
 
 U. S. 317; Home Insurance Co. v. 2 LouigyjUe, etc. E. Co. v. Eailroad 
 
 New York, 134 IT. S. 594; Calif omia Commission of Tennessee, 19 Fed. 
 
 V. Pacific Ey. Co., 137 U. S. 40 ; Perm. Eep. 679. 
 
 E. E. Co. V. Comm., 8 Grant's Cas. 3 131 ind. 446. 
 
302 EEGULATION OF COEPOKATE FEANCHISES. 
 
 foreign corporations to do business "within their limits that 
 they renounce the right of removal to the Federal courts of 
 suits brought against them. As concerns corporations not en- 
 gaged in interstate commerce, a State may, in its discretion, 
 refuse the right of entrance, but it cannot make its decision 
 depend upon the renunciation by the corporation of this con- 
 stitutional right.^ 
 
 Begulations of Domestic Franchises. — Corporate fran- 
 chises which have been granted by a State still remain sub- 
 ject to its regulation to a certain extent; but having been 
 granted, no further compensation for the grant can be ex- 
 acted of the companies which have received them. In the 
 case of a corporate franchise to maintain a bridge across the 
 Ohio river, it was held that although the charter was sub- 
 ject to amendment or repeal at the will of the legislature, 
 nevertheless it was beyond the power of the State to regu- 
 late the charges made by the bridge company for interstate 
 commerce.^ 
 
 The franchise of corporate existence is by the law of 
 most States personal property, subject to taxation by the 
 State of its grant, and the extent of such a tax is beyond 
 the jurisdiction of the Federal court.' 
 
 " Nearly aU the railways in the country have been con- 
 structed under state authority, and it cannot be supposed 
 that they intended to abandon their power over them as 
 soon as they were finished. The power to construct them 
 involves necessarily the power to impose such regulations 
 upon their operation as a sound regard for the interests of 
 the public may seem to render desirable. In the division 
 of authority with respect to interstate railways. Congress 
 
 1 Barron v. Bumside, 121 U. S. Trunk Ey. Co., 143 IT. S. 317; Dela- 
 186. ware Ky. Tax Case, 18 WaU, 206; 
 
 2 Covington & Cincinnati Bridge Lumberville Bridge Co. v. State 
 Co. V. Commonwealth, 154 U. S. 324 Board of Assessors, 55 N. J. Law, 
 
 3 Horn Silver Mining Co. v. New 539. 
 York, 143 U. S. 305; Maine v. Grand 
 
EEGTJLATION OF COEPOEATB FEANCHISES. 303 
 
 reserves to itself the superior right to control their com- 
 merce and forbid interference therewith; while to the States 
 remains the power to create and to regulate the instruments 
 of such commerce, so far as necessary to the conservation of 
 the public interests." ^ 
 
 If it be assumed that the States may not forbid consolida- 
 tion of competing lines, it would follow that Congress could 
 authorize such consolidation in defiance of State legislation, — 
 a proposition which only needs to be stated to demonstrate 
 its unsoundness.^ 
 
 It is generally held that the use to which corporate fran- 
 chises may be put, and the circumstances under which they 
 may be forfeited, are questions which belong peculiarly to 
 the State by which the franchise was granted. 
 
 The power to purchase, or to combine or consolidate with, 
 competiug lines is one which the State may grant or with- 
 hold.« 
 
 Upon this principle it has been held in Texas that corpo- 
 rations created under the laws of that State which have 
 entered into a combination to control both domestic and in- 
 terstate rates may be restrained by a State court from carry- 
 ing out the combination in violation of law.* 
 
 1 Louisville, etc. R Co. v. Ken- Tex. 306; State v. Atchison, etc. Ry. 
 tucky, 161 U. S. 677, 703. Co., 24 Neb. 143; Hafer v. Cincin- 
 
 2 LouisviUe & N. E. Co. v. Ken- nati, H. & D. R. Co., 29 Weekly 
 tucky, 161 U. S. 677, 702. See Louis- L. B. 68; Currier v. Concord R. R. 
 ville & N. R. Co. V. Commonwealth, Co., 48 N. H. 321; Texas & P. R. 
 97 Ky. 677. Co. v. Southern Pac. R. Co., 41 La. 
 
 sLouisviUe & N. R. Co. v. Ken- Ann. 970; Clark v. Central E. R. 
 
 tucky, 161 TJ. S. 677, 703, citing Co., 50 Fed. Rep. 838; Hamilton v. 
 
 Montgomery's Appeal, 136 Pa. St. Savannah, etc. R E. Co., 49 Fed. 
 
 96; Pennsylvania R R. Co. v. Com- Rep. 412; KimbaU v. Atchison, T. 
 
 monwealth (Pa. St.), 7 Atl. Rep. & S. F. R Co., 46 Fed. Rep. 888; 
 
 368; Boardman V. Lake Shore, etc. Langdon v. Branch, 87 Fed. Rep. 
 
 Ry. Co., 84 N. Y. 157 ; Gulf, C. & S. F. 449. 
 
 Ry. Co. V. State, 72 Tex. 404; East *Gulf, etc. Ey. Co. v. State, 73 
 
 Line, etc. Ry. Co. v. Rushing, 69 Tex. 404 
 
CHAPTEE XL 
 
 THE FEDERAL LEGISLATIVE POWEE. 
 
 Congress appears to recognize in its legislation a differ- 
 ence in the extent of its power to regulate the three branches 
 of commerce mentioned in the clause. 
 
 Over foreign commerce its power has been used to raise 
 national revenue, to influence foreign relations, and to pro- 
 tect American trade and manufacture. The first protective 
 tariff was enacted by Congress on the ith of July, 1789, and 
 while question was later raised as to the constitutionality 
 of such taxation, it seems to be settled, by long practice, that 
 this is a legitimate application of the Federal power of tax- 
 ation and commercial regulation.^ Congress may levy a tax 
 upon the admission of foreigners;'' it may prohibit persons of 
 certain classes ' and certain, nationalities * from entering the 
 country, and may regulate proceedings for the deportation 
 of such persons as enter the country in violation of these 
 laws.' Congress has even laid, by embargo, a total prohibi- 
 tion upon foreign commerce, and it is probable that this reg- 
 ulation is within the constitutional grant of power.* It seems, 
 
 1 As to constitutionality of boun- * Chinese Exclusion Case, 130 U. S. 
 ties, see United States v. Realty 581; Feng Yue Ting v. United States, 
 Co., 163 U. S. 427. 149 U. S. 698. 
 
 2 Head Money Cases, 113 U. S. 580 ; ^ Fong Yue Ting v. United States, 
 Edye y. Robertson, 18 Fed. Rep. 149 U. S. 698; United States v. Will- 
 135; Act of Aug. 8, 1883, 23 Stat, iams, 83 Fed. Rep. 997; Chan Gun 
 L. 214, Supp. R. S. 370; Act of Aug. v. United States, 9 App. Cas. (D. C.) 
 18, 1894, 38 Stat. L. 838. 290. 
 
 ^Post, p. 387; Lees v. United « Elliott's Debates, voL 5, p. 455; 
 
 States, 150 U. S. 476; Church of Life and Letters of Justice Story, 
 
 Holy Trinity v. United States, 143 pp. 185, 186; Hamilton's Works, ed- 
 
 U. S. 457; NishimuraEkiuv. United ited by Lodge, yoL 8, pp. 179, 203; 
 
 States, 143 U. S. 651; United States Story on Constitution, sec. 1389; 
 
 V. Craig, 28 Fed. Rep. 795. Von Hoist, Const. Hist, of U. S., 
 
THE FEDERAL LEGISLATIVE POWER. 305 
 
 too, ttat without the consent of Congress no one may estab- 
 lish a physical connection by telegraph cable between the 
 shores of this country and of any foreign country.' 
 
 Over interstate commerce no such extensive authority has 
 been claimed. The right to engage in such commerce is one 
 of the rights reserved to the people, and one of the privi- 
 leges and immunities of citizenship. Congress cannot lay 
 an embargo upon interstate commerce, nor can it, in national 
 matters, make restrictions of unequal operation among the 
 States.^ The purpose with which the grant was made — to 
 seciu'e freedom of transportation throughout the country 
 unembarrassed by differing regulations at State lines — meas- 
 ures not only the power of the States, but also the power of 
 Congress. 
 
 Over trade with the Territories the Federal power is less 
 restricted. The Territories of the United States are not or- 
 ganized under the Constitution, but are the creation exclu- 
 sively of Congress and subject to its control. The United 
 States is the only government which can impose laws upon 
 them, and it is held that Congress can forbid traffic with 
 them in certain articles, and may vary its regulations to meet 
 the special need of each locality.' 
 
 The Preference Clause. — It was perhaps considered by 
 the f ramers of the Constitution that the nature and purpose 
 of the commercial power granted to the Federal govern- 
 ment rendered any express statement of this limitation un- 
 necessary; but on the 14th of September, 1Y87, as one of the 
 last acts of the Convention before its adjournment, — perhaps 
 as a precaution against misconstruction, perhaps to relieve 
 Southern apprehensions, — a clause was adopted providing 
 
 voL 1, pp. 203, 204; ■Wynhamer v. i United States v. Compagnie 
 
 The People, 20 Barb. 567; United Franoaise, 77 Fed. Rep. 495. 
 
 States V. The Brig William, 2 Hall's * Opinion of Mr. Justice McLean 
 
 L. J. 255. See note on Embargo in Groves v. Slaughter, 15 Pet. 449, 
 
 Acts of 1807, 1809, 2 Stat. L., p. 451 ; 506. 
 
 United States v. Marigold, 9 How. ^Endleman v. United States, 86 
 
 660. Fed. Eep. 456. 
 20 
 
306 THE TEDEEAL LEGISLATIVE POWEE. 
 
 that "no preference shall be given by any regulation of 
 commerce or revenue to the ports of one State over those of 
 another: nor shall vessels bound to, or from, one State, be 
 obliged to enter, clear, or pay duties ia another." ^ 
 
 At the time of the adoption of the Constitution, naviga- 
 tion "was the only means of conducting commerce on a large 
 scale. Eegulation of navigation and the imposition of a 
 tariff were the principal commercial regulations contem- 
 plated by the Convention, and it may well be that, in secur- 
 ing equal rights of navigation for aU the States, it "was 
 considered that the field of Federal commercial regulation 
 "was practically covered by a provision "which required uni- 
 form regulation in all national matters. It is probable that 
 the construction which "wiU be given to the clause "will be in 
 accordance "with this broad purpose. Freedom of transpor- 
 tation from conflicting, discriminating and burdensome re- 
 strictions was the purpose of the Constitution; and while the 
 language employed was almost necessarily such as referred 
 to the means of transportation then in existence and within 
 the knowledge of the Convention, nevertheless the operation 
 of the Constitution is not confined to the instrumentalities of 
 commerce then known, but keeps pace with the progress of 
 the country, and is adapted to new developments of time 
 and circumstance." 
 
 "Within a hundred years the means of transportation has 
 so changed that the commerce among the States conducted 
 by land is more important than that conducted by water. 
 Provisions of the Constitution which at first were applied 
 only to navigation may therefore now be applied to rail- 
 ways, as in the case of the clause which forbids the States 
 from laying any duty of tonnage ; ' and the same view may 
 also be taken of the preference clause. 
 
 It is e"vident from the history of the origin and adoption 
 
 1 Constitution of United States, 1, pp. 266, 270, 279, 280, 311, 375; 
 art. 1, sec. 9; Madison's Journal of vol. 5, pp. 478, 488, 603, 545. 
 Convention, edited by Scott, pp. 610, ^ Telegraph Co. v. Telegraph Co., 
 618, 647, 648; Elliott's Debates, vol. 96 XJ. S. 1. 
 
 'Ante, pp. 196, 199, 325, 335. 
 
THE FEDEEAL LEGISIATIVE POWER. 307 
 
 of this clause that it was intended solely as a limitation 
 upon the powers of Congress, and not of the States; and this 
 is the view accepted by the courts,^ though it has been said 
 that it limits also the powers of the States.^ 
 
 The preference clause was not violated by legislation of 
 Congress during the rebenion, regulating commercial inter- 
 course with the insurrectionary districts, requiring persons 
 who conduct such commerce to take out a permit and to pay 
 a tax upon imports into the sections in rebellion ; ' nor by an 
 ordinance of the city of Charleston imposing a tax on capi- 
 tal invested by its citizens in shipping;* nor by a tonnage 
 tax on vessels performing regular voyages to the port of 
 Charleston from the States of North Carolina and Georgia, 
 though none was imposed on vessels belonging to Georgia 
 plying regularly within its limits.* 
 
 Control of Interstate Highways. — At an early period 
 Congress exercised extensive jurisdiction in respect to water- 
 ways, the national highways of the country. Over railways, 
 its first general legislation is in the act of June 15, 1866.* 
 For the purpose of Federal control these highways are sub- 
 ject to all requisite legislation by Congress. This power 
 necessarily includes the power to keep them open and free 
 from any obstruction by the States or otherwise ; to remove 
 such obstructions when they exist; to provide against the re- 
 currence of the evil, and for the punishment of offenders. 
 For these purposes Congress possesses all the power which 
 existed in the States before the adoption of the Ilfational 
 Constitution, and which has always existed in the Parliament 
 of England.'' 
 
 iMunn V. Dlinois, 94 U.S. 113; * State ex reL Ea venal v. Charles- 
 Baker T. "Wise, Governor, etc., 16 ton, 4 Rich. (S. C. L.) 286. 
 Gratt. 139; Opinion of Mr. Justice « Alexander, Harbor Master, v. 
 Johnson in Gibbons v. Ogden, 9 Wilmington E. R. Co., 3 Strobh. 594. 
 Wheat. 1, 239. « U. 8. Rev. Stat., sec. 5258. 
 
 2 Opinion of Mr. Justice Wayne ^in re Debs, 158 U. S. 564, 586; 
 
 in Passenger Cases, 7 How. 283, 314. Gilman v. Philadelphia, 3 WalL 713, 
 
 s Folsom V. United States, 4 Ct. 724 
 of Claims, 366. 
 
308 THE FEDEBAL LBGISLATIVB POWEE. 
 
 Most cases in which this power has been considered have 
 involved the constitutionality of State statutes. The Fed- 
 eral power is not limited, however, to a control of the State, 
 but extends to the removal of any obstruction in the way 
 of the freedom of interstate commerce and the execution of 
 Federal laws. This power may be exercised in appropriate 
 cases directly by the executive branch of the government. 
 " If the emergency arises, the army of the Nation and all its 
 militia are at the service of the Nation to compel obedience 
 to its laws." ' 
 
 A striking instance of such necessity is found in the at- 
 tempt, during the Kansas-Nebraska struggle, to prevent, by 
 force, immigration to those Territories,^ and is sometimes 
 illustrated in periods of social disturbance. Without this 
 power, the whole interest of the nation in commerce among 
 the States would be at the mercy of a portion of the inhabit- 
 ants of different States. 
 
 The Federal authority to protect commerce is not limited 
 to the exercise of executive power, but may be exercised 
 through the courts. Congress has legislated concerning the 
 highways of the country,' and the courts may enforce this 
 
 > In re Debs, 158 U. S. 564, 583. March 3, 1889, ch. 383, 35 Stat. L. 855, 
 ^Cong. Eec, 34th Congress, Sd and amendment of Feb. 10, 1891, 
 Session, pp. 13, 13, 41. ch. 138, 26 Stat L. 743, and amend- 
 ' "Waterways made post-roads, ment of Feb. 8, 1895,28 Stat. L. 643; 
 Act of Jime 8, 1873. See also Act Arbitration between railroads and 
 of June 8, 1872, Rev. Stat., sec. 3964; employees. Act of Oct 1, 1888, ch, 
 RaUroads authorized to engage in 1063, 25 Stat L. 501, Act of June 
 interstate transportation, Act of 1, 1898; Combinations in restraint 
 June 15, 1866, ch. 134, 14 Stat L. 66, of trade. Act of July 2, 1890, ch. 647, 
 Eev. Stat. 5258; Regulation of trans- 26 Stat. L. 209; Safety appliances, 
 portation of live-stock. Act of Act of March 2, 1893, ch. 196, 27 Stat 
 March 3, 1873, ch. 253, 17 Stat L. 584, L. 531; Other highways: All pub- 
 Rev. Stat 4386-4389; Transporta- lie roads and highways declared 
 tion of diseased live-stock forbid- post-roads. Act of March 1, 1884, 33 
 den. Act of May 29, 1884 ch. 60, sec. 6, Stat L. 3, Supp. Rev. Stat, p. 433; 
 23 Stat L. 31, 33; Interstate Com- Act of June 8, 1873, Rev. Stat, sec. 
 merce Act of Feb. 4, 1887, ch. 104, 34 3964; Telegraph companies. Rev. 
 Stat L. 379, with amendment of Stat, tit LXV. 
 
THE FEDEBAL LEGISLATIVE POWEE. 309 
 
 legislation, and secure freedom of commerce from unauthor- 
 ized interference.^ 
 
 Federal Legislative Power May Not le Delegated.— The 
 power to regulate commerce is given to Congress, and this 
 legislative authority may not be delegated to any person or 
 body, nor even to one of the States.^ Congress cannot sanc- 
 tion a State law passed in violation of the Constitution, and 
 if it can adopt such a law as its own, it must be one which 
 it could enact.' 
 
 Congress may, however, in some cases, without delegation 
 of power, establish the line of distinction between such local 
 matters as are within the jurisdiction of the State, and those 
 national matters which are subject to Federal regulation 
 alone.* Such legislation may be found in the "Wilson Act; ' 
 in the act subjecting certain explosives, in transportation 
 from one State to another, to the jurisdiction of the several 
 States within whose territorial limits they pass,® and in acts 
 which declare where the navigability of a stream ends.'' A 
 Federal statute giving to a court power to fix the amount of 
 toUs to be paid for the use of a bridge has also been sus- 
 tained.^ 
 
 The subject was considered at some length in Field v. 
 Cla/rk? That case concerned the validity of a provision of 
 
 iln re Debs, 158 U. S. 564 See WalL 41; Gunn v. Barry, 15 Wall 
 
 Charge to Grand Jury, 63 Fed. Rep. 610, 633. 
 
 838; Charge to Grand Jury, 63 Fed. ^In re Rahrer, 140 U. S. 545; In 
 
 Rep. 834; Thomas v. Cincinnati, N. re Spickler, 43 Fed. Rep. 653. 
 
 O. & T. P. Ry. Co., 63 Fed. Rep. 803; 8 26 Stat. L. 313, Supp. Rev. Stat, 
 
 Charge to Grand Jury, 63 Fed. Rep. oh. 738, p. 779. 
 
 840; United States v. EUiott, 63 « U. S. Rev. Stat., sec 4280. 
 
 Fed. Rep. 801; Charge to Grand 7 Conf. Act of July 13, 1868, Rev. 
 
 Jury, 63 Fed. Rep. 436. Stat., sec. 524a 
 
 ^Stoutenburg v. Hennick, 139 » Canada So. Ry. Ca v. Interna- 
 
 U. S. 141. tional Bridge Co., 8 Fed. Rep. 190. 
 
 »In re Rahrer, 140 U. S. 545, 560; Conf. Chicago, etc. R. Ca v. Dey, 35 
 
 Cooley V. Port Wardens, 13 How. Fed. Rep. 866. 
 
 399; United States v. Dewitt, 9 » 143 U. a 649. 
 
310 THE FEDEEAL LEGISLATIVE POWEE. 
 
 the act of October 1, 1890,^ authorizing the President to sus- 
 pend the free importation of certain articles when satisfied 
 that the country producing such articles imposes upon sim- 
 ilar American products exactions which he may deem un- 
 reasonable. Such provisions have been very common in the 
 legislative history of the nation. The Embargo Acts of 
 March 1, 1809,^ and of March 10, 1810,' contained provisions 
 under which the President could suspend the operation of 
 the act, and these provisions were sustained in the case of 
 Ths Brig Av/rora,^ upon the ground that Congress had not 
 transferred legislative power to the President, but had en- 
 acted that in certain contingencies the law should be sus- 
 pended, the President being made the means of determining 
 whether or not the contemplated contingency had occurred. 
 In Field v. Gla/rh many other similar provisions were re- 
 ferred to, and it was the conclusion of the court, after this 
 review of precedents, that in the judgment of Congress it 
 was often desirable, if not essential, for protection against 
 discriminating regulations of foreign governments, to invest 
 the President with large discretion arising out of the execu- 
 tion of statutes relating to trade and commerce with other 
 nations. In the tariff act under consideration the President 
 was authorized, in case of hostile discrimination by other 
 countries, to suspend the operation of the act permitting free 
 introduction of certain articles ; but Congress had prescribed 
 in advance the duty to be levied upon such articles while the 
 suspension lasted, and nothing was left to the President but 
 to determine whether or not hostile discrimination was made. 
 As the suspension was absolutely required when the Presi- 
 dent ascertained the existence of this fact, it could not be 
 said that he exercised the function of law-making. " What 
 the President was required to do was simply in execution of 
 the act of Congress. It was not the making of law. He 
 was the mere agent of the law-making department to ascer- 
 
 1 26 Stat. L., pp. 567, 613. » 3 Stat. L. 605. 
 
 « 3 Stat. L. 538. < 7 Cranoh, 383, 388. 
 
THE FEDEEAL LEGISLATIVE POWEE. 311 
 
 tain and declare the event upon which its expressed will 
 was to take effect." ^ 
 
 The test determining the validity of a delegation of discre- 
 tionary power, therefore, appears to be that if the controlling 
 rule is fixed by the legislature, and the power delegated is 
 a power to apply this general rule to specific facts, or to de- 
 termine some fact upon which the legislature makes its action 
 depend, then the law is vaUd; but a statute which delegates 
 a discretionary power to fix the rule by which conduct shall 
 be judged or rights measured is unconstitutional. 
 
 It is competent for Congress, having authorized the con- 
 struction of a bridge of a given height over a navigable 
 water, to empower the Secretary of War to pass upon the 
 details of construction so as to avoid unnecessary obstruc- 
 tion to commerce.^ Congress may, in general terms, author- 
 ize the improvement of a navigable river, and removal of a 
 wreck therefrom,' leaving the details to the Secretary of 
 War. It may authorize the construction of a bridge across 
 a stream, leaving the Secretary of War to fix the point where 
 the least obstruction to navigation will thereby be created ; * 
 may require his approval of the plans of construction;^ and 
 may delegate power to prescribe rules for the navigation 
 and administration of canals owned or controlled by the 
 United States.^ 
 
 It may authorize the Interior Department to supervise 
 and approve or disapprove contracts, made by whites with 
 members of the Indian tribes, for the collection of claims;'^ 
 and it has been held that Congress may empower the Presi- 
 dent to regulate or prohibit the importation of distilled 
 
 1 Field V. Clark, 143 U. S. 649, 693. « Oregon City Trans. Co. v. Co- 
 
 2 Miller v. New York, 109 U. S. Inmbia Bridge Co., 53 Fed. Eep. 549; 
 885; MiUer v. New York, 18 Blatoh. Hatch v. Willamette Irqn Bridge 
 213; People v. KeUey, 76 N. Y. 475. Co., 7 Sawy. 137, 141. 
 
 8 Removal of Obstruction to Navi- « United States v. Ormsbee, 74 
 
 gation, 15 Op. Atty. Gen. 384; United Fed. Eep. 307. Conf. United States 
 
 .States V. City of Moline, 83 Fed. v. Eaton, 144 U. S. 677. 
 
 Rep. 593. ^ EoUins v. Eastern Band of Cher- 
 
 < United States v. Milwaukee & okee Indians, 87 N. C. 339, 
 St. P. Ry. Co., 5 Biss. 410, 430. 
 
312 THE FEDBEAL LEGISLATIVE POWER. 
 
 liquor into the district of Alaska;' and where Congress has 
 authorized the construction of a bridge, it may determiae the 
 municipal law which shall govern its use.* 
 
 On the other hand, where a bridge has been built across 
 a navigable river under authority of Congress, the Secretary 
 of "War cannot be authorized to require its removal if he be- 
 lieves it to be an obstruction to navigation,' nor to require 
 its alteration so as to make navigation free;* for to permit 
 such a delegation of power would be, in effect, to authorize 
 the Secretary of War to repeal an act of Congress. 
 
 It seems that section 7 of the act of September 19, 1890,' 
 is, upon the strength of the cases referred to above, open to 
 some question. That section forbids obstruction in naviga- 
 ble waters, or alteration of the channel of any navigable 
 waters, unless the changes contemplated are first submitted 
 to and approved by the Secretary of "War. For the deter- 
 mination of the question so submitted the statute furnishes 
 no general rule. Obstructions in navigable waters, except 
 such as may be authorized by the Secretary, are prohibited, 
 and in the power to be exercised by him no difference is 
 made between minor obstructions and those which would 
 seriously interfere with navigation. It may have been con- 
 templated that, following a wise discretion, the Secretary 
 would refuse to sanction serious obstructions, but no such 
 limitation is placed upon his authority. The power dele- 
 gated is to authorize any obstruction, complete or partial, 
 in any navigable water of the United States. 
 
 Similar criticism may be made upon the authority given 
 to the Interstate Commerce Commission to suspend the oper- 
 ation of that section of the act which is commonly known 
 
 1 The Louisa Simpson, 2 Sawy. 57; ' United States v. Keokuk & H. 
 Endleman v. United States, 86 Fed. Bridge Co., 45 Fed. Eep. 178. 
 
 Eep. 456; United States v. Fifty < United States v. Keokuk & H. 
 
 Cases of Distilled Spirits, 83 Fed. Bridge Co., 45 Fed. Eep. 178; United 
 
 Eep. 1000. States v. Eider, 50 Fed. Eep. 406. 
 
 2 Commissioners of Parks, etc. v. ' Supp. Eev. Stat., voL 1, p. 801, 
 Common Council of Detroit, 80 amended Act of July 13, 1893, 27 
 Mich. 668. Stai L., p. 110. 
 
THE FEDERAT. LEGISLATIVE POWEB. 313 
 
 I 
 
 as the " long and short haul clanse." This authority the Com- 
 mission is authorized to exercise upon application by any 
 interested carrier, ia special cases, and after investigation.*^ 
 Congress has not defined the circumstances under -which a 
 carrier should be relieved of the operation of this provision. 
 The duty imposed upon the Commission is apparently to in- 
 vestigate all applications for relief and to grant a few. It 
 does not meet the difficulty to say that all rates for interstate 
 carriage must be reasonable and without discrimination, and 
 that the Commission may suspend the clause only to effect 
 this result; for such a construction would practically repeal 
 the clause and leave the carriers subject to the single obliga- 
 tion to make their rates reasonable and without discrimina- 
 tion in all cases. 
 
 The act of March 2, 1893,' requiring all common carriers 
 engaged in interstate commerce to equip their cars and loco- 
 motives with certain safety appliances, provides that the 
 Interstate Commerce Commission may, from time to time, 
 upon full hearing and for good cause, extend the period 
 within which any carrier shall comply with its provisions. 
 
 No attempt is made in the act to define the phrase " good 
 cause." The delegation of power is in general terms, and 
 apparently authorizes the Commission to take into consider- 
 ation any cause which Congress itseK might have considered 
 in fixing the day when the law should take effect. If this 
 grant of power can be sustained, it would seem that the 
 Commission might be authorized, " upon good cause," to ad- 
 vance the operation of a statute, making it take effect before 
 the day fixed by Congress, to suspend its operation after it 
 had gone into effect, or even to repeal it. 
 
 Internal Improvements. — Practical administration of the 
 government has long settled in favor of the Federal govern- 
 ment the question of its power to authorize internal improve- 
 ments. For the purpose of carrying its constitutional powers 
 into effect. Congress may incorporate railroad, bridge and 
 
 1 Act February 4, 1887, Snpp. Rev. ^ 27 Stat. L., ch, 196, p. 531. 
 Stat,, p. 530. 
 
3M 
 
 THE FEDEEAi LEGISLATIVE POWEH. 
 
 highway compames,' with power to engage ia commerce 
 among the States, and to condemn private property within 
 a State.^ 
 
 The United States may make surveys of the coast, rivers 
 and harbors,' and for this purpose may authorize entry upon 
 private property upon making compensation therefor;* it 
 may condemn land within the limits of a State by proceed- 
 ings in a Federal court,* or by authority of the State in a 
 
 1 Pacific Eemoval Cases, 115 U. S. 
 1; CaUfomia v. Pacific Ey. Co., 127 
 U. S. 1; Cherokee Nation v. So. 
 Kansas Ry. Co., 135 IT. S. 641; Lux- 
 ton V. North Eiver Bridge Co., 153 
 U. S. 525. For discussion concern- 
 ing Federal power to construct 
 Cumberland Eoad, see Schouler, 
 Hist. U. S., ToL III, pp. 348-354, 395, 
 445; Views of President Monroe 
 upon internal improTements, in- 
 closed in message to Congress, May 
 4, 1832. 
 
 2 Luxton V. North Eiver Bridge 
 Co., 153 U. a 525; Stockton v. Balti- 
 more & N. Y. Ey. Co., 32 Fed. Eep. 
 ■9; Chesapeake & Ohio Canal Co. 
 V. Union Bank of Georgetown, 4 
 branch (C. C), 75; Cherokee Nation 
 V. So. Kansas Ey. Co., 33 Fed. Eep. 
 900; Cherokee Nation v. So. Kansas 
 Ey. Co., 135 IT. S. 641. Conf. Postal 
 TeL Co. V. Morgan's Eailway Co., 49 
 La. Ann. 58. 
 
 8 United States v. Rhodes, 1 Abb. 
 28, 49. 
 
 4 Orr V. Quimby, 54 N. H. 590. 
 
 6 Kohl V. United States, 91 U. S. 
 367; United States v. Oregon Ey. 
 & Nav. Co., 16 Fed. Rep. 525. See 
 In re Petition of United States, 
 96 N. Y. 237. Conf. Trombley v. 
 Humphrey, 23 Mich. 471. 
 
 Act of August 1, 1888, to author- 
 ize condemnation of land for pub- 
 
 lic buildings, etc. 25 Stat. L. 337, 
 Supp. Rev. Stat., ch. 738, p. 60L 
 
 On the construction of this act, 
 see 45 Fed. Eep. 396; 19 Op. Atty. 
 Gen. 673. As to its effect as declar- 
 atory of powers already possessed 
 by the officers named, see Kohl v. 
 United States, 91 U. S. 367; 16 Op. 
 Atty. Gen. 339; 17 Op. Atty. Gen. 
 509; 18 Op. Atty. Gen. 353. As to 
 damages recoverable in such oases, 
 see Alexander v. United States, 35 
 Ct. of Claims, 87, 339; Wetzel v. 
 United States, id. 377. 
 
 The following additional in- 
 stances of Federal laws authoriz- 
 ing the exercise of the power of 
 eminent domain are cited in a note 
 in Supp. Rev. Stat., ch. 738, p. 601: 
 
 Rev. Stat., sees. 4870-4873, au- 
 thorizing the Secretary of War to 
 purchase land for national ceme- 
 teries, or obtain the same by ap- 
 praisement and payment, after ap- 
 plication to proper circuit or district 
 court. 
 
 Act of March 8, 1875, ch. 130, 
 par. 3, Supp. Rev. Stat., p. 73, au- 
 thorizing the Secretary of the Treas- 
 ury to acqture, by donation or pur- 
 chase, the right to occupy sites for 
 life-saving stations, etc. 
 
 Act of March 3, 1883, ch. 143, 
 par. 1, Supp. Rev. Stat., p. 420, au- 
 thorizing the Secretary of the Treas- 
 
THE FEDERAL LEGISLATIVE POWEK. 
 
 315 
 
 State court ;^ but in all cases th.e rigM to just compensation 
 for the property taken is so inseparably connected with the 
 right of condemnation that it may be said to exist not as a 
 separate principle, but practically as part of the right of 
 condemnation.^ 
 
 Federal Power to Incorporate a Bank. — It has long been 
 established that Congress may incorporate a bank to act as 
 a fiscal agent for performance of governmental functions.' 
 It is possible, also, that such action may be taken under the 
 general power to regulate commerce. 
 
 The view that Congress is without authority to regulate 
 the means of exchange implies that commerce, as the word 
 is used in the Constitution, is Umited to barter and cash sales, 
 
 ury to acquire land for public 
 buildings and light-houses by pri- 
 vate purchase or condemnation, and 
 to defray the expenses incident to 
 the procuring of sites from the ap- 
 propriations for the construction 
 of the buildings. See 18 Op. Atty. 
 Gen. 174, 484. 
 
 Act of April 34, 1888, ch. 194, 
 Supp. Rev. Stat., p. 584, authoriz- 
 ing the Secretary of War to cause 
 proceedings to be instituted for the 
 condemnation of any land, right of 
 way or material required for the 
 improvement of rivers and harbors, 
 or, in his discretion, to purchase the 
 same or accept donations of land 
 or materials. 
 
 Act of August 18, 1890, ch. 797, 
 Supp. Eev. Stat., p. 780, authoriz- 
 ing the Secretary of War to cause 
 proceedings to be instituted for the 
 condemnation of land or right per- 
 taining thereto, for fortifications 
 and coast defenses, or to purchase 
 the same or accept donations of 
 such lands or rights. See 45 Fed. 
 Rep. 546. 
 
 See also Act of July 13, 1893, 37 
 Stat. L. 103, providing for condem- 
 nation of land for improvements 
 at the mouth of the Yazoo river; 
 the proceeding to be governed by 
 the laws of the State of Mississippi 
 as far as applicable to condemna- 
 tion of private property for public 
 use. 
 
 1 In re Petition of United States, 
 96 N. Y. 337, affirming 67 How. 
 Prac. 131 ; United States v. Jones, 
 109 U. S. 513 ; Jones v. United States, 
 48 Wis. 385; Gilmer v. Lime Point, 
 18 Cal. 339; Burt v. Merchants' Ins. 
 Co., 106 Mass. 356; United States v. 
 Dumplin Island, 1 Barb. 34. Con- 
 tra, Trombley v. Hximphrey, 33 
 Mich. 471. 
 
 2 Monongahela Navigation Co. v. 
 United States, 148 U. S. 313; Pum- 
 peUy V. Green Bay Co., 13 WaU. 
 166, 178. 
 
 3 Hist, of U. S. Bank, by Clarke & 
 Hall (Gales & Seaton, Washington, 
 1893); McCulloch v. Maryland, 4 
 Wheat. 316; Osborne v. Bank of 
 United States, 9 Wheat. 738. 
 
316 THE FEDEKAL LEGISLATIVE POWEB. 
 
 without the use of the great modern agency of credit. This 
 is clearly not true. The powers conferred on Congress keep 
 pace with the progress of the country and adapt themselves 
 to new developments of time and circumstance.' 
 
 Under present conditions a bill of exchange is essential to 
 most of the larger operations of commerce. Eegulations 
 occasioning but a slight rise in the price of exchange might 
 embarrass or ruin commercial operations which would other- 
 wise be conducted with profit, and removal of impediments 
 to free exchange may open new channels of trade and in- 
 crease existing trade. It is admitted that a biU of exchange 
 is as much an instrument of commerce as is money itself.'' 
 
 It may be, therefore, that the creation of a bank has so in- 
 timate a relation to purposes within the Federal jurisdiction 
 as to come within the commercial power of Congress.' 
 
 Teade-maeks. 
 
 By the act of July 8, 1870,* Congress provided for the 
 registration of trade-marks for exclusive use within the 
 United States, and, by a subsequent statute, counterfeiting a 
 registered trade-mark was made criminal. 
 
 These statutes were not limited in their operation to trade- 
 marks used in interstate or foreign commerce. Trade-marks, 
 it was argued, are not of local but of general interest, and 
 for efiiciency require uniformity of regulation. It might be 
 admitted that in the single instance of an article bought and 
 sold in one State only, so that its trade-mark never crossed 
 State lines, the United States would have no jurisdiction; 
 but in all other cases the injury done by fraudulent trade- 
 marks would not be limited to a single State, but would ex- 
 
 iPensacola TeL Co. v. Western on Incorporation of International 
 
 Union TeL Co., 96 U. S. 1. American Bank, June 13-18, 1898, 
 
 SNathanv. Louisiana, 8 How. 73. Cong. Eeo., voL 81, pp. 6538-6548, 
 
 'House Report No. 3054, 54th 6609,6623-6633,6708-6710. Seeonfe, 
 
 Congress, Second Session; House pp. 46-49. 
 
 Eeport No. 985, 52(1 Congress, First <Eev. Stat., sees. 4937-4947. 
 
 Session. See Discussion in Senate 
 
THE FEDEEAl LEGISLATIVE POWER. 317 
 
 tend to every market where goods simulated under the false 
 device are sold. This argument was disapproved by the 
 Supreme Court.' 
 
 It was doubtful, the court said, whether trade-marks could 
 be the subject of Federal control even where that control 
 was limited to interstate and foreign trade. " Every species 
 of property which is the subject of commerce, or which is 
 used or even essential in commerce, is not brought by this 
 clause within the control of Congress. The barrels and 
 casks, the bottles and boxes in which alone certain articles 
 of commerce are kept for safety and by which their contents 
 are transferred from the seller to the buyer, do not thereby 
 become subjects of congressional legislation more than other 
 property." * It was therefore left undecided whether a trade- 
 mark bears such a relation to commerce as to bring it within 
 congressional control, even when applied to interstate and 
 foreign commerce. It was clear, however, the court said, 
 that Congress had no jurisdiction over trade-marks used 
 solely in domestic commerce, and for this reason the statute 
 was unconstitutional. 
 
 In 1881 Congress passed the present statute in relation to 
 trade-marks, limiting its operation to such marks as are used 
 in commerce with foreign nations or with Indian tribes,' and 
 this statute is sustained. It seems, also, that it may operate 
 upon goods before they become subjects of transportation, 
 the suggestion being that, if intended for exportation, the 
 trade-mark may be within Federal protection.'' 
 
 The Fedeeal Aim-TEUST Law. 
 
 The act of July 2, 1890," commonly known as the Sherman 
 Anti-Trust Law, by its first section forbids any contract or 
 combination in the form of trust or otherwise in restraint of 
 trade or commerce among the States or with foreign nations, 
 
 1 Trade-mark Cases, 100 U. S. 82; 3 Act of March 3, 1881, 31 Stat. L. 
 Leidersdorf v. Flint, 8 Biss. 337. 503, Supp. Rev. Stat. 333. 
 
 2 Trade-mark Cases, 100 U. S. 83, * Ryder v. Holt, 138 U. S. 535. 
 
 95. *S6 Stat. L., p. 309, Supp. R. S. 
 
 763. 
 
318 THE FEDEEAl LEGISLATIVE POWEB. 
 
 and makes violation of this act a misdemeanor. The second 
 section makes it also a misdemeanor to monopolize trade or 
 commerce among the several States or with foreign nations. 
 The third section extends the prohibition of the first section 
 to contracts in restraint of trade or commerce between Ter- 
 ritories, States and Territories, and Territories and foreign 
 nations. The fourth section gives to the circuit courts of the 
 United States jurisdiction to prevent or restrain the violation 
 of the act, and makes it the duty of the district attorneys 
 in their respective districts, under the direction of the At- 
 torney-General, to institute proceedings in equity to prevent 
 or restrain such violation. In the exercise of this jurisdic- 
 tion it is provided by section 5 that the court before which 
 proceedings are pending may, in its discretion, cause parties 
 to be summoned, whether they reside in the district in which 
 the court is held or not. Section 6 enacts that any property 
 owned under any contract, or by any combination, or pur- 
 suant to any conspiracy (and being the subject thereof) men- 
 tioned in the first section of the act, and in transportation 
 from one State to another, or to a foreign country, shall be 
 forfeited to the United States by Kke proceedings as pro- 
 vided for condemnation of property imported into the United 
 States contrary to law. 
 
 Section T gives to any person who shaU be injured in his 
 business or property by any other person or corporation, by 
 reason of anything forbidden by the act, the right to sue in 
 the Circuit Court of the United States in which the defend- 
 ant resides or is found, without reference to the amount in 
 controversy, and to recover treble damages, with costs and 
 attorney's fees. 
 
 It will be noticed that the provision of section 6 relating 
 to forfeiture of property applies to goods in transit from 
 State to State or to foreign countries. The statute which 
 relates to the importation of articles under contracts in re- 
 straint of trade from foreign countries is in section 13 of the 
 Tariff Act of August 27, 1894,^ and is substantially similar 
 
 1 28 Stat. L., oh. 349, p. 570. See Act of July 24, 1897, sec. 34. 
 
THE FEDERAL LEGISLATIVE POWEK. 319 
 
 to the statute of 1890, except that it prohibits contracts in 
 restraint of lawful trade, or free competition in lawful trade 
 and commerce. 
 
 TJie Extent of the Prohibition. — The first iuterpretation 
 placed upon the act of July 2, 1890, was that it forbade 
 only such contracts in restraint of trade as were unenforci- 
 ble at common law. It was said that when Congress creates 
 an offense and uses common-law terms, the courts may prop- 
 erly look to that body of law for the true meaning of the 
 terms used, and for the definition of the offense. At the 
 time that the Anti-Trust Act was passed, the rule had be- 
 come established in the jurisprudence both of England and 
 of the United States that the validity of contracts restrict- 
 ing competition was to be determined by the reasonableness 
 of the restriction, and in the early cases this rule controlled 
 the interpretation of the statute.^ 
 
 In Urdted States v. Freight Association ^ the doctrine was 
 announced that the law prohibited aU restraints of trade, 
 and not those alone which were illegal at common law. 
 
 The statute, it was said, is general, and forbids every con- 
 tract in restraint of trade. To construe this broad prohi- 
 bition so as to make it cover only those contracts which 
 unreasonablv restrain trade would read into the act a Hm- 
 itation not inserted by Congress. The common law recog- 
 nized two classes of contracts which were in restraint of 
 trade: those in which the restraint was unreasonable and 
 those in which it was reasonable. "When Congress used this 
 language and prohibited aU contracts in restraint of trade, 
 without exception or limitation, the court must apply that 
 prohibition without iuserting exceptions which were omitted 
 by Congress. 
 
 From this decision Mr. Justice White, Mx. Justice Field, 
 
 1 United States v. Trans-Missouii ison, etc. R'y Co., 73 Fed. Eep. 438; 
 
 Freight Ass'n, 58 Fed. Eep. 58, 53 Dueber Watch. Co. v. Howard 
 
 Fed. Eep. 440; United States v. Watch Co., 55 Fed. Eep. 851. 
 
 Joint Traffic Ass'n, 76 Fed. Eep. 2166U, S. 390. 
 895; Prescott, etc. Ey. Co. v. Atch- 
 
320 THE FBDEEAL LEGISLATIVE POWEB. 
 
 Mr. Justice Gray and Mr. Justice Sliiras dissented. In de- 
 livering the opinion of the minority, Mr. Justice White 
 called attention to two conceded propositions : that only such 
 contracts as unreasonably restrain trade were violative of 
 the common law, and that the contract involved in the case 
 under consideration imposed no unreasonable restraint on 
 trade. To hold that Congress had prohibited a reasonable 
 contract was therefore tantamount to an assertion that the 
 act of Congress was itself unreasonable. " The difficulty of 
 meeting, by reasoning, a premise of this nature, is frankly 
 conceded, for, of course, where the fundamental proposition 
 upon which the whole contention rests is that the act of 
 Congress is unreasonable^ it would seem conducive to no 
 useful purpose to invoke reason as applicable to and as con- 
 trolling the construction of a statute which is admitted to 
 be beyond the pale of reason." 
 
 It is perhaps true that the principle by which contracts in 
 restraint of trade were held to be illegal was first under- 
 stood to embrace aU contracts which in any decree accom- 
 plished these results. " But as trade developed it came to be 
 understood that if contracts which only partially restrained 
 the freedom of the subject or of trade were embraced in the 
 rule forbidding contracts in restraint of trade, both the free- 
 dom of contract and trade itself would be destroyed." Hence 
 arose the distinction that where contracts operated only as 
 a partial restraint they were not, in contemplation of law, 
 contracts in restraint of trade. This appears to be recog- 
 nized in the title of the Federal statute, which is " An Act 
 to Protect Trade and Commerce Against Unlawful Eestraints 
 and Monopolies." 
 
 In Gulf, etc. B. B. Co. v. Miarm S. S. Oo.^ the Court of 
 Appeals of the Fifth Circuit showed an inclination to return 
 to the interpretation of the statute which obtained before 
 the Freight Association decision. In this case it was held 
 that railway companies doing business at Galveston could 
 lawfully combine to give their business to one of two steam- 
 
 1 86 Fed. Eep. 407. 
 
THE FEDEEAL LEGISLATIVE POWEK. 321 
 
 ship companies operatinsj between that port and New York, 
 and, by requiring the prepayment of freight and refusing to 
 join in through bills of lading, to withhold their business, so 
 far as possible, from the other steamship company. A com- 
 mon carrier, it was said, is not bound to carry beyond its 
 own line, and if it contract to do so it may, in the absence 
 of statutory regulations, determine for itself what agencies 
 it will employ. The suggestion in the argument of the 
 court appears, therefore, to be that the companies could 
 combine to exercise the right which belonged to each com- 
 pany separately. This theory is clearly at variance with 
 the present rule.' Each company which was a member of 
 the Trans-Missouri Freight Association had the right, and 
 was under the duty, of establishing reasonable rates, but it 
 was not at liberty to combine with other companies to fix 
 rates without the restraining influence of competition.^ 
 
 The operation of the act is limited to those contracts 
 which are actually iu restraint of trade. A person who has 
 given service or property to another is not, by this statute, 
 forbidden to recover fair compensation therefor, although 
 at the time of the service or sale he may have been a mem- 
 ber of an illegal combination.' So in the Miami Steamship 
 Company case it was held that the separate contracts made 
 by the railway companies with the steamship company were 
 validj^although they were made in performance of an illegal 
 combination. 
 
 2%e Operation of the Act Includes Railroads. — It was 
 
 argued also that the Anti-Trust Act was not intended to oper- 
 
 1 United States v. Hopkins, 83 House of Lords, Dec, 1807; 11 Har- 
 
 Fed. Eep. 539. Gonf., also, the fol- vard Law Review, 449; Chitty on 
 
 lowing authorities ia which the Contracts (11th Am. ed.), vol. 3, 
 
 statute was not involved: Jackson p. 983; Wald's Pollock on Contracts, 
 
 V. Stanfleld, 137 Ind. 593; Curran p. 310. 
 
 V. Galen, 153 N. Y. 33; Vegelaha v. ^ United States v. Trans-Missouri 
 
 Guntner, 167 Mass. 93; Bohn Mfg. Freight Ass'n, 166 U. S. 390. 
 
 Co. V. Northwestern Lumbermen's ^ The Charles E. Wisewall, 86 Fed. 
 
 Ass'n, 54 Minn. 333; Macauley v. Eep. 671, 74 Fed. Rep. 803. 
 
 Tierney, 19 R. 1 355; Allen v. Flood, * 86 Fed. Rep. 407. 
 31 
 
322 THE FEDERAL LEGISLATIVE POWER. 
 
 ate upon the business of transportation, but upon the mercan- 
 tile business of the country, and to cover a field vliicli had 
 not been covered by the Interstate Commerce Act. The 
 Anti-Trust law is a general statute, and " no rule is better 
 settled than, where a general statute has been enacted, which 
 might include, in the absence of other provisions, a subject- 
 matter which has already received consideration at the hands 
 of the legislature by a special act, the general act will not 
 be construed to embrace the subject contained in the spe- 
 cial act, unless it clearly appears from the language employed 
 that it was the intention of the legislature that it should be 
 included."* 
 
 That it was not the intention of Congress to include the 
 business of transportation within the act, it was said, ap- 
 peared from a comparison of the statutes. The execution 
 of the Commerce Act is in the hands of the Commission, 
 while the Anti-Trust law makes no reference to the Com- 
 mission, imposes no duty upon it, and is enforced by the 
 Attorney-General. 
 
 In their detail, too, it was said, the laws were without ref- 
 erence to each other. To make both acts cover the same 
 field would bring railway pooHng within the penalties of 
 both ; and if the latter act were to prevail it would repeal 
 the provision of the Interstate Commerce Act making each 
 day of the continuance, of a railway pool a separate offense, 
 and would substitute the rule of the Anti-Trust law, which 
 makes the offense a single instead of a daily crime. A sim- 
 ilar inconsistency between the acts is found in the provisions 
 which relate to the remedy of individuals injured by their 
 violation. Under the Interstate Commerce Act, compensa- 
 tory damages only are given in such cases, while under the 
 Anti-Trust Act treble damages and attorney's fees are al- 
 lowed. 
 
 In United States V. Freight AssooiaUon^ this argument was 
 considered by the Supreme Court and overruled. While 
 
 1 United States v. Trans-Missouri 2 166 U. S. 390. 
 Freight Ass'n, 53 Fed. Eep. 440, 455. 
 
THE FEDEKAL LEGISLATIVE POWBE. 323 
 
 there is a difference, it was said, between corporations for 
 trade and those organized for transportation, nevertheless 
 all are engaged ia commerce, and there is no reason why a 
 railroad company should not be included ia general legis- 
 lation aimed at the prevention of that kind of crime in 
 restraint of trade, which may exist in aU cases, which is sub- 
 stantially of the same nature wherever found, and tends in 
 every case toward the same results. It is entirely appropri- 
 ate to subject corporations, or persons in trade or manufact- 
 ure, to different rules from those applicable to carriers, when 
 the circumstances are different; but when the evil to be rem- 
 edied is the same, there is no reason why the same rule 
 should not be applied to both cases. 
 
 Restraint of Trade hy Lahor Unions. — In an early case 
 it was considered that the Anti-Trust Act applied only to 
 such conspiracies as seek to engross or monopolize the mar- 
 ket, and not to combinations to drive competitors out of the 
 field by annoyance, intimidation or otherwise.^ This con- 
 struction has not been followed. The means by which a re- 
 straint may be effected — whether by contract, by violence 
 or intimidation — is immaterial. All restrictions upon inter- 
 state and foreign commerce are prohibited. 
 
 In its application to labor troubles, the statute was first 
 considered in United States v. Wbrkingmen's OownGil? In 
 this case a dispute which had arisen between warehousemen 
 at New Orleans and their employees had resulted ia con- 
 certed action by a large number of labor associations in the 
 city to prevent the employment of non-union men. To effect 
 this compulsion the associations enforced a discontinuance of 
 labor in all kinds of business in New Orleans, including the 
 transportation of goods and merchandise from State to State 
 and to and from foreign countries. In some branches of 
 business the effort was made to replace the striking men by 
 other workmen, but this was resisted by the intimidation 
 
 1 United States v. Patterson, 55 2 54Fed.Eep. 994,1000. 
 Fed. Eep. 605. 
 
324 THE FEDEEAL LEGISLATIVE POWEE. 
 
 springing from large crowds of union men assembling in the 
 streets, and in some instances by violence, so that transporta- 
 tion was effectually stopped. 
 
 The question whether these facts made out a case within 
 the statute was, the court said, tantamount to the question 
 whether there could be a case under the statute. " It is con- 
 ceded that the labor organizations were at the outset lawful. 
 But, when lawful forces are put into unlawful channels, — 
 i. e., when lawful associations adopt and further unlawful 
 purposes and do unlawful acts, — the associations themselves 
 become unlawful. The evil, as weU as the unlawfulness, of 
 the act of the defendants, consists in this: that, until certain 
 demands of theirs were compUed with, they endeavored to 
 prevent, and did prevent, everybody from moving the com- 
 merce of the country." 
 
 In United States v. ElUott ^ the bill made a number of offi- 
 cers of a labor organization defendant, and charged that 
 they had combined to prevent railroads radiating from St. 
 Louis from conducting their customary business of transpor- 
 tation between points in Missouri and other States ; that they 
 induced persons employed by the railway companies to leave 
 the service ; that they had issued orders directing members 
 of their organization to cease operating trains of the com- 
 panies in whose service they were employed, and that they 
 had asserted a purpose to prevent any operation by the rail- 
 ways which refused to accede to certain demands. Such a 
 combination, the court said, was within the fair intent of the 
 act of 1890. An organization whose object is to prevent the 
 operation of important railroads until they have acceded to 
 certain demands made upon them, whether these demands 
 are iu themselves reasonable or unreasonable, just or unjust, 
 is an unlawful conspiracy in restraint of interstate commerce. 
 A preliminary injunction was therefore granted uader the 
 statute, to restrain further violation of the law by the de- 
 fendants. Upon argument of a demurrer to the bUl, the case 
 
 1 63 Fed. Eep. SOL 
 
THE FBDEEAL LEGISLATIVE POWEE. 325 
 
 was again considered and the former decision affirmed.^ The 
 statute, it was said, declares every act of combination in re- 
 straint of trade or commerce among States, or with foreign 
 nations, illegal, and this prohibition includes any restriction 
 or hindrance created by application of external force. The 
 fact that the bill charged the commission of acts which when 
 done would be crimes does not limit the jurisdiction granted 
 to the courts. The law would be very imperfect if a num- 
 ber of irresponsible men could conspire to destroy property 
 and interrupt commerce, and nevertheless be beyond the 
 reach of the only order by which the courts could give ade- 
 quate protection. 
 
 Similar decisions have been rendered in a number of other 
 cases.^ In United States v. Deis ' the same rule was followed 
 after a very full consideration of the statute. In its nature. 
 Judge Woods said, the act could not apply to one class of 
 monopolies alone. Suppose, for example, some manufactur- 
 ers of sleeping cars, competing with the Pullman company, 
 should, in their own interests, combine with railroad em- 
 ployees to prevent the use of Pullman cars, — would it not 
 be evident that the combination would, in any view of the 
 statute, be within its terms ? But if the officers or agents of 
 car companies, who might or might not be capitalists, are 
 indictable for such offense, how could their feUow conspir- 
 ators be exempt ? Can workingmen acting by themselves, 
 upon their own motion, and for their own purpose, whether 
 avowed or secret, do things forbidden by the statute, without 
 criminal responsibility, and yet be criminally responsible for 
 the same things done at the instance of others, and to promote 
 purposes not their own ? or will it be said that under this 
 statute one who is not a capitalist may, without criminality, 
 
 1 United States v. Elliott, 64 Fed. Charge to Grand Jury, 63 Fed. Rep. 
 Rep. 37. 834; Charge to Grand Jury, 63 Fed. 
 
 2 Thomas v. Cincinnati Ry. Co., Rep. 840; Waterhouse v. Comer, 55 
 63 Fed. Rep. 803; United States v. Fed. Rep. 149; United States v. 
 Agler, 63 Fed. Rep. 834; Charge to Cassidy, 67 Fed. Rep. 698. 
 
 Grand Jury, 63 Fed. Rep. 838; 3 64 Fed Rep. 734. 
 
326 THE FEDERAL LEGISLATIVE POWEE. 
 
 assist capitalists in the doing of tMngs wMch on their part 
 are criminal ? 
 
 Such questions, which must arise if the statute is given 
 partial operation, show that it is the character of the act 
 committed, and not of the defendant, which fixes guilt or 
 innocence under the statute. The law condemns combina- 
 tions, not only when they take the form of trusts, but in 
 whatever form they may be found, if they restrain trade. 
 
 In this case the defendants were adjudged guilty of con- 
 tempt of court in violating an injunction, and this order was 
 approved by the Supreme Court upon application for a writ 
 of habeas corjpus, but without basing its decision on the stat- 
 ute.' 
 
 Tlie Line Between State and Federal Authority. — The 
 
 Federal statute is limited in its operation to those subjects 
 which are within Federal jurisdiction. It cannot operate 
 upon the internal commerce of a State,* but begins when inter- 
 state or foreign commerce begins, and ends when that com- 
 merce ceases. It does not apply to the production, control 
 or disposition of property except in their relation to inter- 
 state or foreign commerce. 
 
 In United States v. K O. Kmght Co? this principle was 
 applied to the case of a corporation which had acquired 
 nearly complete control of the manufacture of refined sugar 
 within the United States. The corporation was organized 
 under the laws of New Jersey, and owned all the sugar re- 
 fineries in the country except five. In March, 1892, by the 
 issue of additional stock, it acquired the capital stock of four 
 of these companies, and thereupon a bill was filed by the 
 United States against the purchasing company and the four 
 companies which had sold out, charging the defendants with 
 conspiracy, in violation of the act of July 2, 1890, and pray- 
 
 1 In re Debs, 168 U. S. 664 » 156 U. S. 1, 17, afiE'g 60 Fed. Rep. 
 
 2 National Distilling Co. V. Cream 806, Id. 984; Merz Capsule Co. v. 
 City Importing Co., 96 Wis. 852; United States Capsule Co., 67 Fed, 
 The Charles E. WisewaU, 74 Fed. Rep. 414 
 
 Rep. 803, 86 Fed. Rep. 671. 
 
THE FEDEKAL LEGISLATIVE POWEE. 327 
 
 ing an injunction to prevent the further performance of the 
 agreements. In delivering the opinion of the court, Mr. 
 Chief Justice Fuller said that the object of the combination 
 was manifestly private gain in the manufacture of sugar, but 
 not the control of interstate or foreign commerce. " It is 
 true that the bUl alleged that the products of these refineries 
 were to be sold and distributed among the several States 
 and that all the companies were engaged in trade or com- 
 merce with the several States and with foreign nations, but 
 this was no more than to say that trade and commerce served 
 manufacturer, to fulfill its function. Sugar was refined for 
 sale, and sales were probably made at Philadelphia for con- 
 sumption, and undoubtedly for re-sale by the first purchasers 
 throughout Pennsylvania and other States, and refined sugar 
 was also forwarded by companies to other States for sale. 
 JSTevertheless, it does not f oUow that an attempt to monopo- 
 lize, or the actual monopoly of, the manufacture was an at- 
 tempt, whether executory or consummated, to monopolize 
 commerce, even though, in order to dispose of the product, 
 the instrumentality of commerce was necessarily invoked." 
 In Re Greene ^ a similar decision was rendered by Judge 
 Jackson, afterward of the Supreme Court of the United 
 States. This was a petition for a writ of habeas cor^s to 
 release the petitioner from custody of the United States 
 marshal, by whom he was held under a warrant of a com- 
 missioner, awaiting an order for his removal to the District 
 of Massachusetts, to answer an iadictment for alleged vio- 
 lation of the act. The first count of the indictment charged 
 that Greene, and others in several States, had combined to 
 restrain trade and commerce in distillery products, and that 
 for this purpose they had organized a corporation known as 
 the Distilling & Cattle Feeding Company, which had ob- 
 tained control, by purchase or lease, of a large part of the 
 distilleries in the United States; that these distilleries at the 
 
 153 Fed. Eep. 104 To same ef- Fed. Eep. 205; In re Terrell, 51 Fed. 
 feet, United States v. Greenhut, 50 Rep. 313. 
 Fed. Eep. 469; In re Coming, 51 
 
328 THE FEDEEAL LEGISLATITE POWEE. 
 
 time of their purchase were in competition; that their prod- 
 uct amounted to seventy-five per cent, of all of the distillery 
 products made and sold in the country, and that by control 
 of these plants the petitioner and his associates were enabled 
 to control the market in these articles, and to control and 
 fix the price at which dealers would sell to citizens of the 
 several States; that in pursuance of this plan the Cattle 
 Feeding Company made a sale at the city of Boston, within 
 the District of Massachusetts, of a large amount of alcohol, 
 then within the State of Illinois; that by reason of the con- 
 trol of the market in the United States, the vendor fixed the 
 price at which the purchaser should and did sell the alcohol 
 within the District of Massachusetts, and compelled the pur- 
 chaser to seU alcohol at no less price than that so fixed. 
 
 The other counts of the indictment were substantially 
 similar so far as jurisdiction was concerned. 
 
 In passing upon the questions thus presented. Judge Jack- 
 son said that while Congress may place restrictions upon 
 the rights of corporations organized under its authority, to 
 acquire, use and dispose of property, and may also impose 
 restrictions upon citizens in respect to the exercise of a pub- 
 lic privilege or franchise conferred by the United States, 
 it may not limit or restrict the rights of corporations cre- 
 ated by the States, or the citizens of the States, in the acqui- 
 sition, control and disposal of property. " Neither can Con- 
 gress regulate or prescribe the price or prices at which such 
 property, or the products thereof, shall be sold by the owner 
 or owners, whether corporations or individuals. It is equally 
 clear that Congress has no jurisdiction over, and cannot 
 make criminal, the aims, purposes and intentions, of persons 
 in the acquisition and control of property, which the States 
 of their residence or creation, sanction and permit. It is not 
 material that such property, or the products thereof may be- 
 come the subject of trade or commerce among the several 
 States or vsdth foreign nations." The Federal jurisdiction 
 begins when the article is actually delivered to a carrier for 
 transportation, or when its movement to another State is 
 
THE FEDEKAL LEGISLATIVE POWEE. 829- 
 
 actually commenced, and ends when the article reaches an- 
 other State and becomes mingled with the general mass of 
 property there. 
 
 After transportation of commodities from one State to 
 another has ceased, and they have become mingled with the 
 general mass of property in the State of destination, their 
 subsequent disposition by sale, use or consumption is not 
 part of interstate commerce. So, where a brewing com- 
 pany shipped beer from Wisconsin into Texas, the contract 
 of sale containing a provision that the purchaser should 
 deal only in the seller's beer, and that the seller would not 
 dispose of beer to any dealer in competition with the buyer, 
 it was held that the first of these provisions operated upon 
 the parties after the delivery of the beer in Texas, and 
 brought the contract within the State law against monopo- 
 lies, which prevented any recovery for the purchase price.' 
 
 The report of the case strongly suggests, thougli it does 
 not clearly show, that the buyer was engaged in retail trade, 
 and that the expressions of the court were made with refer- 
 ence to this accepted fact. In Waters-Pierce Oil Co. v. State'' 
 the same subject was again considered, and it was held that 
 State laws against monopolies could not operate upon the 
 sale of imported goods in ol-iginal packages, but only where 
 the package had been broken or the goods had passed from 
 first hands. 
 
 But where a contract to buy, sell or exchange goods to be 
 transported among the several States operates to restrain 
 trade, it is in violation of the Federal law. The purchasCj 
 sale or exchange of commodities is as much a part of inter- 
 state commerce as is transportation itself; and if a combina- 
 tion of persons to prevent movement across State lines may 
 be prevented by the Federal authorities, so may also a com- 
 bination to prevent dealiag in commodities for transporta- 
 
 ^Fuqua v. Pabst Brewing Co., 90 2 "vVaters-Pierce Oil Co. v. State 
 Tex. 398; s. C. (Tex. Civ. App.), 36 (Tex. Civ. App.), 44 S. W. Kep. 936. 
 S. W. Eep. 479. 
 
330 THE FEDEBAL LEGISLATIVE POWEE. 
 
 tion. In United States v. Jellico Mountam Coal & Coke Co} 
 a petition was filed under the act against the members of 
 the Nashville Coal Exchange. The membership of this ex- 
 change consisted of mining companies operating mines in 
 Kentucky and Tennessee, and of persons and firms dealing 
 in coal at NashviUe. The purpose of the exchange, among 
 other things, was to establish prices at which coal should be 
 sold in that city, and to fix the share of the mine owners and 
 dealers in the proceeds. Mine operators who were mem- 
 bers of the exchange were prohibited from selling coal to 
 any person in Nashville not also a member, and dealers were 
 prohibited from buying coal from operators who were not 
 members. This contract, the court said, was within the 
 prohibition of the statute. Most of the coal mines were in 
 Kentucky. The coal was to be mined for a certain price, 
 and the agreement contemplated its shipment to Nashville. 
 Its transportation was a necessary incident to the agree- 
 ment, and without it execution would have been impossible. 
 It was to aU intents and purposes trade among the States, 
 and so conducted as to evidence an intent to monopolize a 
 part of this trade. 
 
 United States v. Addyston Pijpe <& Steel Co? was a proceed- 
 ing in equity begun by petition filed by the Attorney-Gen- 
 eral on behaK of the United States, against six corporations 
 engaged in the manufacture of cast-iron pipe, charging them 
 with a combination in violation of the act of 1890. It was 
 shown that the defendant companies entered into a combi- 
 nation to raise the price of pipe for all States west and south 
 of New York, Pennsylvania and Yirginia. Their joint out- 
 put was two hundred and twenty thousand tons, while the 
 total capacity of all the other pipe manufacturers was one 
 hundred and seventy thousand five hundred, of which an 
 important part was manufactured at places so far distant 
 from the places of considerable demand that necessary freight 
 rates excluded competition. The mills of the defendants 
 
 1 46 Fed. Eep. 433 ; United States v. 2 78 Fed. Eep. 713. 
 Coal Dealers' Ass'n, 85 Fed. Rep. 353. 
 
THE FEDEEAL LEGISLATIVE POWEE. 331 
 
 were situated, two in Alabama, two in Tennessee, one in 
 Kentucky, and one in Ohio. Custom required the seller to 
 deliver the pipe at the place where it was to be used by the 
 buyer, and to include in the price the cost of delivery. 
 Under the agreement every request for bids was submitted, 
 except in the case of certain cities which were " reserved " 
 lor particular members of the combination, to the central 
 committee, which fixed a price and awarded the contract to 
 the member which would agree to pay, for the benefit of the 
 other members of the association, the largest bonus. The 
 contract of association restrained every defendant, except 
 the one selected to receive the contract, from soliciting in 
 good faith, or making, a contract for pipe with the intend- 
 ing purchaser, and restrained the defendant so selected from 
 making the contract except at the price fixed by the com- 
 mittee. The Circuit Court held that the case was not within 
 the Federal jurisdiction. In the Circuit Court of Appeals 
 this judgment was reversed, an exhaustive and careful opin- 
 ion being rendered by Judge Taft, Mr. Justice Harlan and 
 Judge Lurton concurring.^ 
 
 It is apparent, the court said, that in the case of pipe 
 to be purchased in any one of the thirty-six States within 
 the territory covered by the contract, each defendant, by his 
 conduct, restrained his freedom of trade in respect to mak- 
 ing a contract in that State for the sale of pipe to be deliv- 
 ered across State lines; five of the six defendants agreeing 
 not to make such a contract at aU, and the sixth agreeing not 
 to make the contract below a fixed price. No sale could 
 therefore be suggested within the scope of the contract with 
 respect to which it did not restrain some of the parties 
 thereto from the exercise of the freedom, which but for the 
 contract would have been theirs, of selling in one State pipe 
 to be delivered from another State, at any price which they 
 might see fit to fix. Such a contract was clearly, the court 
 said, in restraint of interstate trade and commerce. 
 
 In United States v. H(ypkms ^ the rule was applied to an 
 
 1 85 Fed. Rep. 271. ^ 83 Fed. Rep. 539. 
 
332 THE FEDEEAL LEGISLATIVE POWEE. 
 
 association of brokers dealing in cattle. The business of the 
 Stock Yards Company, at the place where the association 
 was located, consisted in loading and unloading stock from 
 cars, and in caring for them while in public market. Cattle 
 were sent to the yards from aU cattle-raising States in the 
 "West, and many were subsequently shipped to other States 
 and to foreign countries. JSTotwithstanding these facts, it 
 has been held, following the rule of Mwrm v. llUnois,^ that 
 the business of the Stock Yards Company was of a local 
 nature, and in the absence of Eederal legislation the State 
 statutes regulating charges for its services were sustained.^ 
 
 Buyers and sellers of live-stock naturally congregate at 
 such a place, and the association in question was an organi- 
 zation composed of about three hundred persons dealing in 
 live-stock upon commission. 
 
 Their business consisted in soliciting shipments of cattle 
 from stock-raisers in other States, in receiving the cattle 
 sent to them, and causing them to be cared for by the Stock 
 Yards Company, and in negotiating sales, at the yards, to 
 local and foreign dealers. 
 
 The rules of the association fixed the price which the 
 members should charge for these services, and in other ways 
 regulated the manner in which the business should be trans- 
 acted. Such a combination, the court said, was forbidden 
 by the Federal statute. 
 
 The business of the brokers in making contracts for ship- 
 ment of cattle to them from other States was clearly inter- 
 state commerce, and their services in negotiating sales, 
 whether rendered before or after the cattle had arrived at 
 the yards, were analogous to the services rendered by a 
 drummer, and as much a part of interstate commerce as 
 was the transportation itself. When it was shown that the 
 association was engaged in interstate commerce, and that 
 their rules were in restraint of trade, it followed that the 
 
 1 94 U. S. 113. ting v. Kansas City Stock Yards 
 
 2 Getting v. Kansas City Stock Co., 83 Fed Eep. 850. 
 Yards Co., 79 Fed. Eep. 679; Cot- 
 
THE FEDEEAL LEGISLATIVE POWEK. 333 
 
 organization was within the statute. It was immaterial, the 
 court said, that their rules might be reasonable; for the act 
 of Congress is aimed against all restrictions of interstate 
 commerce, and to permit commerce among the States to 
 flow in its natural channels, unrestricted by any combina- 
 tions, contracts, conspiracies or monopolies whatsoever. 
 
 Radical Nature of the Present Rule. — The foregoing re- 
 view of the decisions shows the radical nature of the rule 
 by which the Federal statute is now applied. It matters not 
 how innocent a combination may be in purpose or beneficial 
 in effect, — if it restrain interstate or foreign commerce it is 
 prohibited. " This act of Congress is aimed against all re- 
 strictions of interstate commerce, and we need not discuss 
 the reasonableness of such restrictions." ^ 
 
 Under this rule an organization of laborers which seeks by 
 peaceful and proper means to maintain a reasonable standard 
 of wages or proper hours of labor becomes illegal as soon as 
 it falls within the Federal jurisdiction. 
 
 The large number of mercantile exchanges and boards of 
 trade throughout the country show the demand for some 
 organization by which buyers and sellers can be brought 
 together, and experience shows the necessity, in such cases, 
 of having a known standard by which commissions and other 
 charges may be fixed. Any rule which would make such 
 organizations illegal would cause great embarrassment to 
 the commercial intercourse of the country. 
 
 If the statement of the doctrine given by the courts be ac- 
 cepted literally, and every contract which in any degree 
 restricts interstate commerce be illegal, it would seem that 
 the formation of partnerships or corporations would be for- 
 bidden.^ 
 
 As a practical matter, no such application of the statute is 
 possible, and, if it were, a rule which prohibited reasonable 
 contracts would probably be unconstitutional as in violation 
 
 1 United States v. Hopkins, 82 2 Conf. United States v. Addyston 
 Fed. Rep. 529, 537. Pipe & Steel Co., 85 Fed. Rep. 271. 
 
334 THE FEDEEAL LEGISLATIYE POWEB. 
 
 of the fifth amendment to the Constitution. In construing 
 the similar provisions in the fourteenth amendment -which 
 limit the powers of the States, it has been held that the con- 
 stitutional right to liberty includes not only the right to be 
 free from physical restraint, but also the right to the free 
 enjoyment of one's faculties, to pursue any proper avocation, 
 and for that purpose to enter into all contracts which may 
 be proper, necessary and essential to these ends.' 
 
 Some modification of the present rule seems, therefore, to 
 be inevitable. What that modification wiU be is a difficult 
 question. In United States v. Addyston Pvpe & Steel Co? the 
 Circuit Court of Appeals seems to have acknowledged these 
 difficulties so far as to base its decision upon common-law 
 grounds, not upon the absolute rule of the Trans-Missouri 
 Freight Association case. 
 
 In considering the condition of the common law upon the 
 subject, the court, after a learned review of the cases and 
 principles, concludes that " no conventional restraint of trade 
 can be enforced unless the covenant embodying it is merely 
 ancillary to the main purpose of a lawful contract, and nec- 
 essary to protect the covenantee in the enjoyment of the 
 legitimate fruits of the contract, or to protect him from 
 the dangers of an unjust use of those fruits by the other 
 party." 
 
 This distinction affords some practical relief from a rule 
 which otherwise would have been intolerable. It finds a 
 justification for the contract by which a partner binds him- 
 self not to engage in the same business in such a way as to 
 injure the firm, while at the same time it is not in conflict 
 with the decision of the Supreme Court upon the facts in 
 the Trans-Missouri case. The difficulty vrith this theory, 
 however, is that it amounts to a little more than an an- 
 nouncement that, in these cases, the end may justify the 
 means, — that that which is illegal in itself, both at common 
 
 ijlhgeyer v. Louisiana, 165 U. S. N. Y. Sup. Ct., Appellate Biv., de- 
 578. ' cided May 6, 1898, 51 N. Y. Supp. 
 
 2 85 Bed. Eep. 271; Brett v. Ebel, 573. 
 
THE FEDEEAL LEGISLATIVE POWEB. 335 
 
 law and by statute, is permitted when it is " merely ancil- 
 lary to the main purpose of a lawful contract." In the sec- 
 ond place, the rule presents a diflEloulty ia that it does not 
 go far enough to answer the public necessity. Many in- 
 stances might be named in which restriction of competition 
 is the principal purpose of a contract, which, nevertheless, 
 the best interests of the public demand. 
 
 On the other hand, there are difficulties in the way of 
 adopting any rule by which the validity of a contract would 
 depend alone upon the view which a court might take of its 
 reasonableness. 
 
 Injunctions to Restrain Violations of the Act. — The stat- 
 ute gives individuals no new right to bring suits in equity, 
 and authorizes issuance of injunctions only in suits brought 
 by the United States.^ Combinations in restraint of trade 
 are, however, by the act made unlawful ; and where such 
 a combination threatens irreparable injury under circum- 
 stances which, upon general principles of equity, authorize 
 the relief, an injunction will be granted.^ A court cannot, 
 by virtue of this statute, grant a mandatory injunction by 
 which persons will, in effect, be compelled to enter into con- 
 tracts. Thus, in Oulf, etc. M. JR. Oo. v. Mia/rm S. S. Oo? it 
 was held that the fact that a number of railroads had united 
 to withhold their business so far as possible from a steam- 
 ship company, and had entered into traffic arrangements 
 with a rival company, did not authorize the court, for the 
 purpose of preventiug discrimination, to compel the railroads 
 to make with the complaining company contracts similar to 
 those which they had made with its competitor. 
 
 Eelation of Wilson Act to State Statutes Against Monop- 
 olies, — The Wilson act was one of the consequences of the 
 
 1 Blindell v. Hagen, 54 Fed. Eep. 40, 56 Fed. Eep. 696; Gulf, etc. R R. 
 40; Hagen v. Blindell, 56 Fed. Eep. Co. v. Miami S. S. Co., 86 Fed. Eep. 
 696 ; Pidcock -s. Harrington, 64 Fed. 407, 420. Conf . Shelton v. Piatt, 139 
 Kep. 821; Greer v. StoeUer, 77 Fed. U. S. 591. 
 
 Rep. 1. 3 86Fed. Eep. 407. 
 
 2 Blindell v. Hagen, 54 Fed. Rep. 
 
336 THE FEDEEAL LEGISLATIVE POWEE. 
 
 decision of the Supreme Court in Leisy v. Hardin,^ and was 
 passed to enable each State to regulate, or prohibit, traffic 
 carried on within its limits. The terms of the statute are 
 general, and make aU intoxicating liquors, upon arrival within 
 a State, subject to the laws of that State which are enacted 
 in the exercise of its police powers; and it has been held that 
 this provision is broad enough to bring within the operation 
 of State laws prohibiting restraint of trade the contract 
 by which the liquor is imported iuto the State. Thus, in 
 Fuqua v. Pabst Brewing Go.^ where beer was shipped from 
 "Wisconsin into Texas upon a contract which provided that 
 the purchaser should handle only the beer manufactured 
 by the seUer, and that the manufacturer should sell to no 
 dealer iu competition with him, it was held that these pro- 
 visions of the contract in restraint of interstate trade were, 
 by the "Wilson act, brought within the operation of the Anti- 
 Trust Law of Texas ; that the contract was, under that law, 
 Ulegal, and that no recovery could be had upon it. 
 
 It seems, however, that this decision is not in accord with 
 principle. Contracts in restraint of interstate trade are gov- 
 erned by the Federal law; and while the "Wilson act permits 
 State legislation to operate upon the subjects of interstate 
 commerce in certain cases, it does not restrict the operation 
 of the Federal statute. It is equally clear that State stat- 
 utes and the Federal statute upon this subject cannot both 
 operate upon the same contract at the same time. 
 
 " If Congress have a constitutional power to regulate a 
 particular subject, and they do actually regulate it iu a given 
 manner, and in a certain form, it cannot be that the state 
 legislatures have a right to interfere, and, as it were, by way 
 of complement to the legislation of congress, to prescribe 
 additional regulations, and what they may deem auxiliary 
 provisions for the same purpose. In such a case, the legis- 
 lation of congress, in what it does prescribe, manifestly in- 
 dicates, that it does not intend that there shall be any further 
 
 1135 U. S. 100. 2 90 Tex. 298. 
 
THE FEDEEAL LEGISLATIVE POWEE. 337 
 
 legislation to act upon the subject-matter. Its silence as to 
 what it does not do, is as expressive of what its intention is 
 as the direct provisions made by it." ^ " 
 
 Fedeeal Police Eegulation of Commeeob. 
 
 The Federal power of commercial regulation includes nec- 
 essarily a power of police supervision. 
 
 Immigration. — Congress has passed a large number of 
 statutes regulating the transportation of persons to the 
 United States from foreign countries. Idiots, insane per- 
 sons and persons liable to become a public charge, persons 
 suffering from a loathsome or dangerous contagious disease, 
 persons who have been convicted of a felony or other in- 
 famous crime or misdemeanor involving moral turpitude, 
 and polygamists, are excluded from the United States.^ 
 
 Every alien passenger is subject to a duty of one dollar.' 
 The money thus collected constitutes a fund used to defray 
 the expense of regulation of immigration and for the relief of 
 immigrants in distress. It is forbidden to prepay transpor- 
 tation or to assist or encourage immigration of aliens to the 
 United States under contracts for their service or labor.* 
 Ooolies and Chinese are also excluded.* The transportation 
 
 1 Prigg V. Pennsylvania, 16 Pet. Act of March 3, 1891, 36 Stat. L. 
 
 539,617. Conf.TlieChtisan,2Stoiy, 1084, Supp. Eev. Stat. 934; Act of 
 
 466. March 3, 1893, 27 Stat. L. 569; LeeS 
 
 2ActofMaroh3, 1891, 26 Stat. L. v. United States, 150 U. S. 476; 
 
 1084, Supp. Eev. Stat. 934; Act of Church of Holy Trinity v. United 
 
 March 3, 1893, 27 Stat. L. 569; Act States, 143 U. S. 457; In re Florio, 
 
 of Aug. 3, 1882, 23 Stat. L. 214, Supp. 43 Fed. Eep. 114; In re Cummings, 
 
 Eev. Stat. 370; Act of March 3, 1875, 32 Fed. Eep. 75; The Federal Con- 
 
 18 Stat. L. 477, Supp. Eev. Stat. 87. tract Labor Law, Harvard Law 
 
 3 Act of Aug. 18, 1894, 28 Stat. L. Eeview, voL XI, p. 525. 
 391. 5 Eev. Stat., tit. XXIX, Immigra- 
 
 < Act of Feb. 26, 1885, 23 Stat. L. tion, sees. 3158-2164; Act of March 
 
 332, Supp. Eev. Stat. 479; Act of 3, 1875, 18 Stat. L. 477, Supp. Eev. 
 
 Feb. 23, 1887, 34 Stat. L. 414, Supp. Stat. 86; Act of May 6, 1883, 33 
 
 Eev. Stat. 541; Act of Oct. 19, 1888, Stat. L. 58, Supp. Eev. Stat. 343; 
 
 ^5 Stat. L. 565, Supp. Eev. Stat. 633; Act of July 5, 1884, 33 Stat. L. 115, 
 33 
 
338 THE FEDERAL LEGISLATIVE POWEB. 
 
 of passengers by sea is mutually regulated by statutes pro 
 Tiding for accommodations, food and treatment.' 
 
 Adulterated Food. — It is unlawful to import into the 
 United States any adulterated or unwholesome food or drug, 
 or any vinous, spirituous or malt liquor adulterated or mixed 
 with any ingredient injurious to health.^ 
 
 Inspection of Animals and Animal Products.— The im- 
 portation or exportation of neat cattle, sheep and other rumi- 
 nants and swine which are diseased or infected, or which 
 have recently been exposed to infection, is prohibited, and 
 the Secretary of Agriculture is authorized to establish quar- 
 antine regulations to enforce these provisions.' Transportar 
 tion from State to State of live-stock affected with contagious 
 or communicable disease is prohibited.* 
 
 By the act of August 30, 1890, the Secretary of Agricult- 
 ure was also authorized to cause inspection of salted pork 
 and bacon intended for exportation, to determine whether 
 it is wholesome, sound and fit for human food, whenever any 
 foreign country to which such articles are to be exported 
 shall require inspection thereof, and also whenever any dealer 
 in meats intended for exportation shall request inspection.' 
 
 By the act of March 3, 1891,® these requirements are ex- 
 tended to compel inspection of all cattle intended, or whose 
 meat is intended, for exportation to foreign countries, and 
 
 Supp. Rev. Stat. 458; Act of Sept. 'Act of August 30, 1890, 26 Stat. 
 
 13, 1888 (see note 1, Supp. Rev. Stat. L. 414, Supp. Rev. Stat. 794. 
 
 625); Act of Oct. 1, 1888, 25 Stat. L. < Act of May 29, 1884, 23 Stat. L. 
 
 504, Supp. Rev. Stat. 635; Act of 31, Supp. Rev. Stat. 435. As to the 
 
 May 5, 1893, 27 Stat. L. 25; Feng scope of this act, see Mullen v. 
 
 Yue Ting v. United States, 149 U. S. Western Union Beef Co. (Colo.), 49 
 
 698. Pac. Rep. 425; Davis v. Texas, etc. 
 
 1 Act of Aug. 3, 1883, 23 Stat. L. Ry. Co., 12 Tex. Civ. App. 427. 
 186, Supp. Rev. Stat. 863. ^26 Stat. L. 414, Supp. Rev. Stat. 
 
 2 Act of Aug. 80, 1890, 36 Stat. L. 794. 
 
 414, Supp. Rev. Stat. 794; Act of « 36 Stat. L. 1089, Supp. Rev. Stat 
 March 3, 1897; Sang Lung v. Jack- 937. 
 son, 85 Fed. Rep. 502. 
 
THE FEDBEAL LEGISLATIVE POWEE. 339 
 
 of all cattle, sheep and hogs which are subjects of interstate 
 commerce and about to be slaughtered, and whose meat is 
 to be transported to any other State for consumption. 
 
 It is doubtful whether these two statutes, so far as they 
 pertain to inspection of slaughtering and packing, are within 
 the constitutional power of Congress. In United States v. 
 Boyer} — an indictment for attempting to bribe an inspector 
 appointed under these acts to consent that condemned car- 
 casses might be made into food products, — the court held 
 that slaughtering and packing of cattle intended for transpor- 
 tation to other States and Territories was not interstate com- 
 merce or subject to regulation by Congress ; that inspection 
 of meat during the process of packing belongs to the States ; 
 that the inspector was not performing a duty as a Federal 
 officer, and therefore the attempt to bribe was not a Federal 
 offense. 
 
 It is probable that the most conclusive method of deter- 
 mining whether meat is fit for food is by inspection at the 
 slaughter-house. It may be argued, therefore, that, as the 
 United States has the right to inspect subjects of interstate 
 transportation, it may, where necessary, make its examina- 
 tion at the time of slaughtering and packing, before trans- 
 portation has begun. The difficulty is that, as the State has 
 undoubted power to inspect the preparation of the meat, 
 and to make regulations to give effect to such inspection, 
 and prevent unsound meat from being packed or prepared 
 for market, a Federal inspection, with attendant regulations 
 for its enforcement, would cause a conflict of rules, and result 
 in a serious interference with the execution by the State of 
 
 its admitted power. 
 
 185 Fed Eep. 435. 
 
CHAPTEE XII. 
 RELATIONS WITH THE INDIAN TEIBEa 
 
 The Constitution contains but t"wo references to the Indian 
 tribes. The first, providing that representatives and direct 
 taxes shall be apportioned among the States according to 
 their respective numbers, counting the whole number of 
 persons in each State and excluding Indians not taxed,' sug- 
 gests the inference that the framers of the Constitution con- 
 templated that some of the Indians would not be included 
 in the general mass of the population of the different States, 
 and would not be subject to State jurisdiction. 
 
 The second provision upon the subject is found in the com- 
 merce clause. During the convention, Mr. Madison, on the 
 18th of August, 1Y8Y, moved that Congress should be given 
 authority " to regulate affairs with the Indians as well within 
 as without the limits of the United States." The committee 
 to which the proposition was referred reported September 
 4th, and upon their recommendation the words, " and with 
 the Indian tribes," were added to the clause.'' Other pro- 
 visions of the Constitution have also been referred to as the 
 source of powers belonging to the Federal government over 
 the Indians. These are the powers to declare war, includ- 
 ing that of bringing war to an end and securing peace; to 
 protect the States against invasion; to make all needful rules 
 and regulations respecting the territory of the United States ; 
 the treaty-making power, and the power of Congress to make 
 all laws necessary and proper to carry these powers into 
 effect.' 
 
 None of the clauses mentioned define the relation of the 
 
 1 Const U. S., art. 1, sec. 3, 14th 1, pp. 533-534; Journal of Conven- 
 Amendment. tion, Madison (edited by Scott), p. 549. 
 
 2 Curtis' Const. History (1897), voL 8 gee generally concerning Indian 
 
EELATIONS WITH INDIAN TBIBES. 341. 
 
 United States with the Indian tribes, and it is probable that 
 a strict construction, such as was at one time adopted with 
 other portions of the Constitution to restrict the Federal 
 power, would practically deprive Congress of all effective 
 control over the Indian tribes. 
 
 Definition of Indian Commerce. — In examining the history 
 of Federal legislation upon this subject, it is difficult to trace 
 to its appropriate source in the Constitution each authority 
 which has been exercised, and to say what cases are illustra- 
 tions of the exercise of a certain power and what are not.* 
 This is particularly true of the power of commercial regula- 
 tion, which has in a general way been referred to as the 
 basis of jurisdiction over intercourse which had no commer- 
 cial nature whatever, and where there was no act of trans- 
 portation, — as in the case of the intercourse of a white mis- 
 sionary living among the Indians.^ 
 
 Other illustrations of the variety of cases in which' the 
 commerce clause has been referred to are found in the 
 decision that a State Probate Court had no jurisdiction to ad- 
 minister upon the estate of an Indian who had lived upon a 
 tract of land in a State reserved to him alone,' and that 
 State courts could not take jurisdiction of a prosecution 
 against an Indian for adultery committed with a white per- 
 son upon an Indian reservation in a State, although the 
 white person was within the State jurisdiction.* 
 
 It is probable, however, that no Federal jurisdiction over 
 the Indians can arise from this clause that is not commercial 
 in character, and that to constitute commerce with the Indi- 
 ans the same elements must exist which are essential to com- 
 
 relations, Story on the Constitu- i Von Hoist, Const. Law o£ U. S., 
 
 tion, sees. 3 et seq., 153 et seq., 1065, sec. 38, p. 136, note 3. 
 
 1097, 1101, 1933; Kent's Commen- ^See conourring opinion of Mr. 
 
 taries (14th ed.), vol. 1, pp. 257, 258, Justice Washington in Worcester 
 
 p. 64j note; voL 2, pp. 72, 73; voL 3, v. Georgia, 6 Pet 515, 581, 590. 
 
 pp. 378-399; The Federalist, No. s United States v. Shanks, 15 Minn. 
 
 XLIL 
 
 estate V. Campbell, 53 Minn. 354. 
 
34:2 EELATIONS WITH INDIAN TEIBES. 
 
 merce with foreign nations or among the States.^ At the 
 same time it should be noticed that the extent and purpose 
 of the Federal control over commerce is much greater over 
 that with the Indians than over interstate or foreign com- 
 merce. The purpose with which this power was given to 
 Congress was not merely to prevent burdensome, conflicting 
 or discriminating State legislation, but to prevent fraud and 
 injustice upon the frontier, to protect an uncivUized people 
 from wrongs by unscrupulous whites, and to guard the white 
 population from the danger of savage outbreaks. 
 
 A grant made with such a purpose must convey a different 
 power from one whose purpose was to insure the freedom of 
 commerce. Congress has, in the case of the Indians, prohib- 
 ited trade in certain articles, it has limited the right to trade 
 to persons licensed uader Federal laws, and ia many ways 
 asserted a greater control than would be possible over other 
 branches of commerce. 
 
 Indian Tribes Occupying Federal Territory. — In the 
 
 memorable decisions of Cherokee NaUon v. State of Georgia,^ 
 and Worcester v. State of Georgia,^ it was held that although 
 the United States had in some ways treated the Indian tribes 
 as independent sovereignties, and had entered into treaties 
 with them, nevertheless they were not foreign nations withia 
 the meaning of the Constitution. 
 
 They are within the geographical limits of the United 
 States. They and their country are considered by foreign 
 nations, as well as by the United States, as so completely 
 under the Federal control that any attempt to form a polit- 
 ical connection with them, or to acquire their land, would be 
 an invasion of the rights of the United States government 
 and an act of hostility. " They occupy a territory to which 
 we assert a title independent of their wUl, which must take 
 
 1 See opinion of Mr. Justice Bald- 2 5 pet. 1, 
 
 win, Cherokee Nation v. Georgia, 5 '6 Pet. 515, 536. See also Eoffi v. 
 
 Pet. 31, 43; Opinion of Mr. Justice Bumey, 168 U. 8. 318; Maokey v. 
 
 Thompson, id. 50; United States v. Coxe, 18 How. 100. 
 Kagama, 118 U. S. 375, 378. 
 
EELATIONS WITH INDIAIT TEIBES. 3i3 
 
 effect in point of possession wlien their right of possession 
 ceases. Meanwhile they are in a state of pupilage. Their 
 relation to the United States resembles that of a ward to his 
 guardian." ' 
 
 In United States v. Kagcuma ^ this subject was fully con- 
 sidered. Over Indians upon land under territorial govern- 
 ment, it is said, the power of Congress arises principally 
 from the ownership of the country. The rights of exclusive 
 sovereignty must exist in the national government, for they 
 can be found nowhere else. " Perhaps the power of govern- 
 ing a Territory belonging to the United States, which has 
 not, by becoming a State, acquired the means of self-govern- 
 ment, may result necessarily from the fact that it is not 
 within the jurisdiction of any particular State, and is within 
 the power and jurisdiction of the United States. The right 
 to govern, may be the inevitable consequence of the right to 
 acquire territory. "Whichever may be the source whence 
 the power is derived, the possession of it is unquestioned." ' 
 The country which is thus occupied by Indians is a part of 
 the territory of the United States, assigned to the different 
 tribes, but subject to the Federal authority, like aU other 
 land within its domain.* 
 
 Indian Tribes WitJiin a State. — When a tribe of Indians 
 occupies land within the boundaries of a State, the question 
 of Federal jurisdiction presents somewhat different aspects. 
 The police powers of the several States with reference to 
 the Indian, tribes must, so far as affected by the Constitution, 
 be equal; but the actual power which any State may exer- 
 cise depends upon the legislation of Congress and the degree 
 of control exercised by the United States over the tribes in 
 that State. In the original States a more extensive police 
 power in relation to Indian tribes has been sanctioned by 
 
 1 Cherokee Nation v. Georgia, 5 ter, 1 Pet 511, 543; United States v. 
 Pet. 1, 17. Kagama, 118 U. S. 375, 380. 
 
 2 118 'CT. S. 375. * United States v. Rogers, 4 How. 
 
 8 American Insurance Co. v. Can- 567; United States v. Kagama, 118 
 
 U. S. 375. 
 
344 EELATIONS WITH INDIAN TRIBES. 
 
 the Federal government than in some of the new States 
 created out of Federal territory. The different history and 
 circumstances of the tribes has led to diverse degrees of 
 control and correspondingly varied scope of local legisla- 
 tion. It is to be noted, too, with reference to other than 
 commerce powers, that some of the original States had the 
 pre-emptive title to lands occupied by Indian tribes,^ while 
 in the States created from Federal territory the pre-emptive 
 title was in the United States. 
 
 Congress, in the Enabling Acts for the formation of new 
 States, has sometimes legislated on the subject of control 
 over the Indian tribes and their reservations; and such 
 enactments have occasionally prevented local action.^ Be- 
 fore the Eevolution each colony managed its own Indian 
 affairs, and even after the adoption of the Constitution this 
 practice stiU continued to a considerable extent. In some 
 States, as in Maine and ISTew York, the authority over In- 
 dians within their borders has long been unquestioned, and 
 it was argued that the principles which established the Fed- 
 eral authority over Indians occupying lands of the United 
 States established State authority over Indians occupying 
 lind belonging to a State. Some recognition of this doc- 
 trine appears in the provision of the Trade and Intercourse 
 Act of 1802, that it shall not be so construed " to prevent 
 any trade or intercourse with Indians living on lands sur- 
 rounded by settlements of the citizens of the United States^ 
 and being within the ordinary jurisdiction of any of the 
 individual States."^ 
 
 It was apparent that some controlling jurisdiction over 
 such tribes was necessary. The Indians could not possess an 
 independent government within the limits of a State, for by 
 the Constitution no new State shaU be founded or erected 
 within the jurisdiction of any other State without its con- 
 sent. If, therefore, Congress could not erect a Federal State 
 
 iInreNarragansettIndiaiis(R.L), '3 U. S. Stat. L. 139 to 146 incL 
 40 AtL Rep. 347. See In re Narragansett Indians 
 
 2 The Kansas Indians, 5 WalL 73T. (R. I.), 40 Atl. Rep. 347. 
 
EELATIONS WITH INDIAN TBIBES. 34& 
 
 within the territory of one of the States of the Union, much 
 less could it allow a foreign and independent government to 
 establish itself there.^ 
 
 It followed, then, that if the Indians could not erect in- 
 dependent governments, they must be under the jurisdiction 
 either of individual States or of the United States, for these 
 are the only governments within the geographical limits of 
 the nation. As between them the United States alone was 
 adequate, either in the extent of its powers, or in the means 
 at its disposal, to exercise control. The States could make 
 no treaties, could not declare war, nor even keep the troops 
 which in time of peace must be kept as a protection against 
 attack. The Federal government had these powers, and 
 moreover it could regulate commerce with the Indian tribes. 
 This included not only power to regulate traffic in commod- 
 ities, but all commercial intercourse with the tribes, and in- 
 volved control over the personal conduct of those engaged 
 in that intercourse.'^ The Federal government could exercise 
 its power in any locality, whenever there was a subject to> 
 act upon, although within the limits of a State.' 
 
 Its jurisdiction over the Indians is therefore well estab- 
 lished, and continues as long as the tribal organization con- 
 tinues. So long as an Indian tribe is recognized by the 
 executive department of the Federal government, the fact 
 that the primitive habits and customs of the tribe have been 
 broken into by their intercourse with whites does not au- 
 thorize a State to regard their tribal organization as gone, 
 and to extend its jurisdiction over them.* 
 
 Nature of Federal Jurisdiction. — Commerce with foreign 
 nations and among the several States is that commerce which 
 
 1 Message of President Jackson, United States v. Martin, 14 Fed. 
 December, 1839, 37 Niles Eeg. 347. Rep. 817; United States v. Bridle- 
 
 2 United States v. Bridleman, 7 man, 7 Fed. Eep. 894 See Ward 
 Fed. Rep. 894; United States v. v. Race Horse, 163 U. S. 504 
 HoUiday, 3 WalL 407. * The Kansas Indians, 5 Wall 737, 
 
 3 United States v. Forty-three overruling Blue Jacket v. Corn- 
 Gallons of Whiskey, 93 U. S. 188; missioners of Johnson Comity, $ 
 In re Race Horse, 70 Fed. Rep. 598; KaiL 299. 
 
34:6 EELATIONS WITH INDIAlir TEIBES. 
 
 involves transportation across State lines, and is put within 
 Federal control to avoid discriminating, conflicting and bur- 
 densome State legislation. Commerce with the Indian tribes 
 frequently involves no such transportation. It may be car- 
 ried on wholly within the limits of a single State. Control 
 over this branch of commerce was given to Congress, not 
 that transportation might be free, but that an inferior and 
 dependent race might be protected from the rapacity of trad- 
 ers, and that the frontier might be protected from the savage 
 wars which result from injustice and aggression by either 
 side. In this case, therefore, the power of Congress is not 
 determined by the locality of the traffic, but extends wher- 
 ever intercourse with Indian tribes, or with any member of 
 an Indian tribe, is found, although it may originate and end 
 within the limits of a single State.^ The jurisdiction is there- 
 fore personal rather than economic in its nature. 
 
 The power which the United States has exercised over the 
 Indians may not be justified by the commerce clause alone, 
 but results from the nature and general power of the national 
 government, and from the necessities of the case.^ 
 
 In the exercise of this jurisdiction Congress has prescribed 
 minute regulations of Indian affairs, governing the inter- 
 course of Indians with each other and with the whites, and 
 has established both a oivU and criminal jurisdiction. 
 
 Criminal Jurisdiction Over the Indians. — The power to 
 define and punish under Federal law crimes committed by, 
 or against, tribal Indians, or on their reservations, can to a 
 limited degree only be based on the commerce clause, and 
 must be found principally in other constitutional provisions. 
 
 It was held in a famous case that Georgia could punish 
 the murder of one Indian by another, although committed 
 within an Indian reservation in the State,' and although the 
 Federal treaties recognized the criminal jurisdiction of the 
 
 1 United States v. HoUiday, 3 ^ United States v. Kagama, 118 
 WaU. 407. Conf. Territory v. Guy- U. S. 375. 
 
 ■ott, 9 Mont. 46. ^ Worcester v. State of Georgia, 
 
 6 Pet. 515. 
 
EELATIOirS WITH INDIAN TEIBES. 347 
 
 tribe. The same claim of jurisdiction received the attention 
 of the Supreme Court of the United States upon the indict- 
 ment of one Samuel A. Worcester, a native of Yermont, 
 who had resided upon the Cherokee reservation in Georgia 
 as a missionary, and who was indicted by the grand jury of 
 Gwinnett county, Georgia, for so doing without a license 
 from that State. Upon this indictment Worcester was con- 
 victed and sentenced to confinement in the State penitentiary 
 at hard labor for a period of four years. A writ of error being 
 taken from the Supreme Court of the United States, it was 
 held by that court that the State law in question was repug- 
 nant to the Constitution and void, and the judgment against 
 Worcester reversed. The State of Georgia, however, refused 
 to pay attention to its proceedings. No counsel appeared 
 on its behalf at the time the case was argued, no attention 
 was paid to the order of reversal, and " through every de- 
 partment of her Government she treated the mandate and 
 the writ of error with contempt the most profound. She 
 did not even protest against jurisdiction as she had done in 
 the case of ChisTwlm's Ex^r. But she kept Worcester and 
 Butler in the penitentiary, and she executed in the Creek Na- 
 tion the laws, for violating which, they had been put in the 
 penitentiary." ^ 
 
 These claims of sovereignty have of course long since 
 disappeared with the doctrine of State rights upon which 
 they were based, and the Federal power is now unquestioned. 
 
 Commerce Clause and Criminal Jurisdiction. — In some 
 cases where commerce was not involved the clause was con- 
 sidered as throwing light upon the relations of the Federal 
 government and of the State to the Indian tribes. It has 
 been held that Congress can provide for the punishment of 
 manslaughter committed by a white man against an Indian 
 upon a reservation within a State,^and by an Indian against 
 
 1 Padelford v. Mayor of Savan- IV, p. 234; 1 Greeley's EecoUeo- 
 nah, 14 Ga. 440, 448, 483; Schouler, tions, 106. 
 
 History of the United States. voL 2 United States v. barnJiart, »a 
 
 Fed. Eep. 285. 
 
34:8 EELATIONS "WITH INDIAN TEIBBS. 
 
 a white man on such a reservation,^ or in a Territory;^ and 
 murder of one citizen by another on a reservation;' that a 
 State can punish a white man for the murder of an Indian 
 within country occupied by an Indian tribe in a State;* that 
 it may forbid and punish the sale of liquor to Indians; ' and 
 that it may punish an Indian for adultery committed while 
 on a reservation.* On the other hand, it is held in Minne- 
 sota that, while a State may punish a non-tribal half-breed 
 for such an offense, it cannot punish a tribal Indian.' It is 
 also held that so long as tribal customs are maintaiaed, and 
 while subject to the management of the Federal Indian 
 agent, the Indians upon a reservation within a State are not 
 subject to State laws regulating marriage and inlieritance.* 
 The criminal as well as civil jurisdiction of a State over its 
 own citizens on an Indian reservation in its limits, and over 
 Indians in common with aU other persons within the State 
 and not upon a reservation, is not excluded in the absence 
 of conflicting Federal legislation.^ 
 
 The Civil and CriminalJurisdiction of the Tribe. — Until 
 recently, while their relations to the Federal government 
 were controlled by treaties, the Indian tribes were permitted 
 to control their internal affairs. 
 
 In 18Y1 the United States, after an experience of a hun- 
 dred years, abandoned this system and made all Indians 
 subject to the acts of Congress. The statute which marks 
 the change provides that " no Indian nation or tribe within 
 the territory of the United States shall be acknowledged or 
 recognized as an independent nation, tribe, or power with 
 
 1 TTnited States v. Martin, 14 Fed. * Caldwell v. State, 1 Stewart & 
 Eep. 817. Porter (Ala.), 337. 
 
 2 United States v. Cha-ta-kah-na- » Territory v. Guyott, 9 Mont. 46. 
 pe-sha, Hemp. 37; Act of Aug. 15, « State v, Harris, 47 Wis. 298; 
 1876, 19 Stat, at L. 176, Supp. R. S. State v. Doxtater, 47 Wis. 278. 
 ■^21, ' State V. Campbell, 53 Minn. 354 
 
 s Conf. United States v. Bailey, 1 » Boyer v. Dively, 58 Mo. 510. 
 McLean, 234 9 United States v. YeUow Sun, 1 
 
 DilL 271. 
 
EELATI0N8 WITH INDIAN TEIBES. 34:9 
 
 whom the TJmted States may contract by treaty; but no 
 obligation of any treaty lawfully made and ratified with 
 any such Indian nation or tribe prior to March third, eighteen 
 hundred and seventy-one, shall be hereby invalidated or im- 
 paired." ^ In 1885 this policy was followed by enacting that 
 thereafter Indians guilty of certain crimes mentioned, against 
 the person or property of another Indian, etc., within a Ter- 
 ritory, should be subject to its laws and tried in the same 
 courts as other persons charged with such crimes, and where 
 they commit the offenses within a reservation in a State 
 they shall be subject to the same laws and tried in the same 
 courts as other persons committing such crimes within the 
 exclusive jurisdiction of the United States ; * and this statute 
 has been sustained as applied to an offense committed by one 
 Indian against another upon a reservation within the limits 
 of a State.' 
 
 Offenses committed upon an Indian reservation by an In- 
 dian against the person or property of another are not within 
 State jurisdiction.* Offenses committed by Indians within 
 a State and without the reservation are generally subject to 
 State jurisdiction;' but violation of the Federal statutes re- 
 lating to trade and intercourse may be punished without 
 reference to the place where the act of violation was com- 
 mitted, whether within the limits of a reservation or outside 
 the reservation and within a State.* Congress may punish 
 the sale of intoxicating liquors by one tribal Indian to an- 
 other,' and a sale to Indians whose tribal organization has 
 been abandoned, and who have become electors and hold 
 
 1 Act of March 3, 1871, U. S. R. S., Contra, State v. Foreman, 8 Yerg. 
 sec. 2079. 256. 
 
 2 Act of March 3, 1885, 23 Stat. h. » Whart Crim. L. (10th ed.), sec. 
 385, Supp. R. S., pp. 482, 483. 282a. 
 
 3 United States v. Kagama, 118 « United States v. Forty-three Gal- 
 U. S. 375; United States V.Thomas, Ions of Whiskey, 93 U. S. 188, re- 
 151 U. S. 577. versing 19 Int. Rev. Rec. 158. 
 
 * United States v. Kagama, 118 'United States v. Shaw Mux, 2 
 U. S. 375; Ex parte Crow Dog, 109 Sawy. 364. 
 U. S. 567 ; Ex parte Cross, 20 Neb. 417. 
 
350 RELATIONS WITH INDIAU TRIBES. 
 
 land in seYeralty, but are still imder Federal guardianship; ^ 
 and where an Indian has severed aU relations with his tribe, 
 it is held this jurisdiction may be exercised by a State.^ It 
 has been held that Congress can authorize the President to 
 regulate and prohibit the introduction of distilled spirits into 
 the district of Alaska.' 
 
 Civil Jurisdiction Over Indian Trade. — The extent of the 
 Federal power over the Indians appears most conspicuously 
 in the character of the regulations which govern trade and 
 intercourse with them. The settled practice of the govern- 
 ment recognizes that this intercourse cannot be left to the 
 operation of commercial laws which control trade with civil- 
 ized nations, but must be subject to extraordinary govern- 
 mental supervision, both for the protection of the Indians 
 and the white persons living on the frontier. Congress can- 
 not effectually control commerce with the Indian tribes 
 without such regulations as shall preserve those tribes from 
 an indiscriminate commercial intercourse with the whites.* 
 
 Congress can regulate trade and intercourse with the In- 
 dian tribes * within as weU as without the Indian country,^ 
 and in so doing may extend its revenue and police laws over 
 the Indian reservations ; ' and this jurisdiction excludes State 
 taxation of property used in such trade.* In the exercise of 
 these powers it has prohibited all trade with the Indians, 
 except by such persons as shall be appointed by the Com- 
 missioner of Indian Affairs and shaU have given bond as 
 
 1 Eenf row V. United States, 3 OkL « United States v. SeveloflE, 3 
 161. Sawy. 311; United States v. Forty- 
 
 2 State V. Wise, 73 N. W. Eep. 843. three GaUons of Whiskey, 93 U. g. 
 
 3 The Louisa Simpson, 2 Sawy. 57 ; 188. 
 
 United States v. Nelson, 39 Fed. '' United States v. Tobacco Fac- 
 Rep. 203. tory, 1 Dill 364; The Cherokee To- 
 
 * United States v. Cisna, 1 Mo- bacco, 11 WalL 616. 
 Lean, 354, 260. , 8 Foster v. Board, 7 Miim. 84 
 
 6 United States v. Bichard & Ca, 
 1 Ariz. 31. 
 
KELATIONS WITH INDIAIT TEIBES. 351 
 
 required in the statutes,^ and this regulation has been sus- 
 tained.^ 
 
 It is provided that the regulations governing this trade 
 may be prescribed by the Commissioner, "who may specify 
 the kind and quantity of goods and the price at which they 
 shall be sold to the Indians.' Any person other than an 
 Indian of full blood who shall attempt to reside in the In- 
 dian country as a trader, or to introduce goods, or to trade 
 therein, without a license, forfeits all merchandise offered 
 for sale to the Indians or found in his possession, and is sub- 
 ject to fine.'' 
 
 The United States has also prevented Indians from leav- 
 ing their reservations, a notable instance being found in the 
 statute of May 11, 1880, passed during the early movements 
 into the Cherokee strip, whereby officers or agents of the 
 army or of the Indian Bureau were prohibited, except as 
 specially directed by the President, from granting permis- 
 sion to any Indian or Indians upon any reservation to go 
 into the State of Tesas.* 
 
 The President is authorized, whenever in his opinion pub- 
 lic interest may require, to prohibit the introduction of goods, 
 or of any particular article, into the country of any Indian 
 tribe, and to direct all licenses to trade with such tribe to 
 be revoked and aU applications therefor to be rejected.* 
 
 Foreigners are prohibited from going into the Indian 
 country without a passport from the department or some 
 officer in charge of the Indians, etc., and every such passport 
 shaU express the object which the person has in entering the 
 country, the time he may remain and the route which he 
 
 1 Act of Aug. 15, 1876, 19 Stat. L. « Act of Aug. 15, 1876, 19 Stat. L. 
 176, Supp. R. S. 131 ; Act of July 26, 200, Supp. R. S. 121. 
 
 1866, R. S., sec. 2138. * Act of June 30, 1834, U. S. R. S., 
 
 2 United States v. Forty-three Gal- sec. 2133, amended. Act of July 31, 
 Ions of Whiskey, 93 U. S. 188. See 1882, 23 Stat. L. 179, Supp. R S. 363. 
 Jones V. Eisler, 3 Kan. 134 Conf. » Act of May 11, 1880, 21 Stat. I^ 
 Taylor v. Drew, 31 Ark. 485; Hicks 114 
 
 V. Ewhartonah, 81 Ark. 106. ^U. S. R. S., sec. 3133. 
 
352 - EELATIONS WITH INDIAN TEIBES. 
 
 shall travel.' It is forbidden for any person other than an 
 Indian, within the Indian country, to barter for articles used 
 in hunting, husbandry or cooking, or for any articles of cloth- 
 ing, except skins or furs.* It is also forbidden for whites to 
 take game in certain Indian country; ' to drive cattle there- 
 from for the purpose of trade or commerce; * to drive stock, 
 without consent of the tribe, upon Indian lands to feed ; ' 
 or to sell liquor to the Indians.* 
 
 Indian Lands. — The extension of Federal jurisdiction 
 over the land occupied by Indians necessarily impaired the 
 rights of the Indians in their ownership and control of that 
 land. " They were admitted to be the rightful occupants of 
 the soil, with a legal as weU as just claim to retain possession 
 of it, and to use it according to their own discretion; but 
 their rights to complete sovereignty, as independent nations, 
 were necessarily diminished, and their power to dispose of 
 the soil at their own will, to whomsoever they pleased, was 
 denied by the original fundamental principle, that discovery 
 gave exclusive title to those who made it." ^ 
 
 The territory which the United States has acquired has 
 been occupied by numerous and warlike tribes of Indians, 
 but the exclusive right of the United States to extinguish 
 their title and grant the soil has never been doubted. The 
 existence of this power must negative and control any other 
 power which may conflict with it. An absolute title to land 
 cannot exist at the same time in different persons or in dif- 
 ferent governments, and the absolute title of the Federal 
 government, which is subject only to the Indian right of 
 
 1 U. S. R. S., sec. 2134. of January 30, 1897, 39 Stat. L. 506; 
 
 2IT. S. R S., sec. 2185. -Eenfrow v. United States, 3 OkL 
 
 3U. S. R S., sec. 2137. 161; United States v. Forty-three 
 
 <U. S. R. a, sec. 3138. GaUons of Whiskey, 98 U. S. 188; 
 
 5U. S. R. S., sec. 2117. United States v. HoUiday, 3 Wall. 
 
 6U. S. R. S., sec. 2139; Act of 407; Territory v. Guyott, 9 Mont. 46. 
 
 July 4, 1884, Supp. R S. 450; Act of ^ Johnson v. Macintosh, 8 Wheat. 
 
 July 33, 1893, 37 Stat. L. 260; Act of 543, 574. 
 
 March 1, 1895, 36 Stat. L. 693; Act 
 
KELATIONS WITH INDIAK TEIBES. 353 
 
 occupancy, is incompatible "with absolute and complete title 
 in the Indians. It is therefore held that an Indian tribe 
 cannot grant a title to their lands to private individuals. 
 The United States alone may prescribe the manner in which 
 the Indian title may be extinguished.^ This rule is now em- 
 bodied in the statute which provides that no purchase or 
 other conveyance of lands or any title or claim thereto from 
 any Indian nations shall be valid, unless made by treaty or 
 convention entered into according to the Constitution. Per- 
 sons who, not being employed by authority of the United 
 States, attempt to negotiate such a treaty for purchase of 
 lands held or claimed by Indians, are subject to a penalty.^ 
 
 There are a number of statutes providing for the allotment 
 of lands in severalty to a member of an Indian tribe who 
 desires to adopt the habits of civihzed life.' Upon such 
 allotment the Indian receiving the land becomes, to some 
 extent, subject to the laws of the State or Territory within 
 which his land lies,* although he still has the privilege of 
 use of Indian schools, is restricted in his ability to alienate 
 his land,' and is subject to some of the restrictions of the 
 Federal statutes.* 
 
 The sale or lease of land is not commerce within the mean- 
 ing of the clause, yet by virtue of other provisions of the 
 Constitution, and the historical relations of the United States 
 with the Indians, it may control the lease and sale of the 
 lands of tribal Indians within a reservation in a State. In 
 some of the cases where this power has been supported, the 
 
 1 Johnson v. Macintosh, 8 Wheat. < Act of Feb. 8, 1887, 34 Stat. L. 
 543; United States v. Boyd, 83 Fed. 388, Supp. E. S. 536; United States 
 Rep. 547; Wood v. Missouri, etc. R. v. Boyd, 83 Fed. Eep. 547. 
 
 Co., 11 Kan. 333. * United States v. Floumoy Eeal 
 
 2 Act of June 30, 1834 "U. S. E. S., Estate Co., 71 Fed. Eep. 576; Pil- 
 seo. 3116. grim v. Beck, 69 Fed. Eep. 895; 
 
 8 Act of June 14» 1863, U. S. E. S., United States v. Floumoy Eeal Es- 
 
 sec. 3119; Act of Feb. 8, 1887, 34 tate Co., 69 Fed. Eep. 886; Beck v. 
 
 Stat. L. 388, Supp. E. S. 534, 536; Eeal Estate Co., 65 Fed. Eep. 30. 
 
 Act of Feb. 38, 1891, 36 Stat. L. 794, « Eenf row v. United States, 3 OkL 
 
 Supp. R. S. 897, 635. 161. 
 33 
 
354 EELATIONS WITH INDIAN TEIBES. 
 
 commerce clause has been mentioned. It has been held, for 
 instance, that Congress can authorize the lease of lands in a 
 State to whites by Indian members of a tribe ;^ and may 
 prevent such leases without authority of the Secretary of 
 War, where the tribal relations are in process of dissolu- 
 tion ; ' and may regulate the sale of tribal Indian lands.' 
 
 It has been held a State may not authorize leases to whites 
 of tribal Indian lands in its limits,^ and provisions in a State 
 Constitution and statutes must yield to an act of Congress 
 giving validity to existing leases from members of tribal 
 Indians to white persons.' 
 
 Where an Indian acquired title to land in severalty which 
 was granted to his father for services in the Eevolutionary 
 War, he may convey it without authority of Congress.* 
 
 A State under its police power may make it unlawful for 
 other persons than Indians to settle or reside upon tribal 
 lands and provide for their summary ejectment;' and a 
 State may authorize the construction of a highway within 
 an Indian reservation ; * and to exercise its jurisdiction over 
 its OAvn citizens may include an Indian reservation within 
 the boundary of a town.^ 
 
 1 Buffalo & P. R. Co. V. Lavery, * Murray v. Wooden, 17 Wend. 
 37 N. Y. Supp. 443; Ryan v. Knorr, 531. 
 
 19 Hun, 540. 'People ex reL Cutler v. Dibble, 
 
 2 United States v. Floumoy Live- 31 How. 366, 16 N. Y. 208, 18 Barb. 
 Stock, etc. Co., 69 Fed. Rep. 886. 413. 
 
 'Seneca Nation of Indians v. ^o'Meara v. Commissioners, 8 
 
 Christie, 126 N. Y. 123. Sup. Ct. (N. Y.) 235; France v. Erie 
 
 1 Buffalo & P. R. Co. V. Lavery, Ry. Co., 3 Hun, 513. 
 
 37 N. Y. Supp. 448. 'Schriber v. Town of Langlade, 
 
 s Ryan v. Knorr, 19 Hun, 540. 66 Wis. 616. 
 
INDEX. 
 
 A. 
 
 ADMIRALTY JURISDICTION (see Navigable Watees; Navigation). 
 secures right to navigate public waters, 44 
 of Congress, origin of, 95. 
 not confined to tide waters, 96, 97. 
 over navigation, 105. 
 over vessels, 105. 
 
 relation of commerce clause to this jurisdiction, 97. 
 includes all marine contracts and torts, 98. 
 Federal statute concerning, saving common-law remedies, 38. 
 
 ADULTERATED ARTICLES — 
 police power of State over, 58. 
 adulterated foods, importation prohibited, 338. 
 
 AGENT — 
 
 when foreign corporation may be reqiiired to appoint, 178. 
 
 AGRICULTURAL PRODUCTS— 
 State cannot exclude, when, 194 
 
 ALIEN PASSENGERS — 
 Federal tax upon, 337. 
 immigration, 337. 
 
 AMONG— 
 
 definition of, 60. 
 
 ANIMALS (see Catople) — 
 
 Federal statute regulating transportation of, 175. 
 inspection of. Federal statutes concerning, 338. 
 diseased. State may exclude, 56, 170. 
 State may designate landing place for, 177. 
 quarantine under Federal statute, 175. 
 liability for oommimication of disease by, 171. 
 State statutes regulating transportation of, 176 
 
 ANIMAL INDUSTRY ACT— 
 
 compliance with, does not prevent liability for conmiunication of 
 disease by animals, 174 
 
356 INDEX. 
 
 ANTI-TRUST LAW (see Monopoly). 
 APPORTIONMENT — 
 
 as a rule of taxation, 241-268, 272. 
 
 rule of as applied to property of transportation companies, 241-344 
 
 historical development of this rule, 344r-366, 373. 
 
 ARBITRATION— 
 
 between railways and employees, 308, ru 
 
 ARRIVAL— 
 
 meaning of, as used in Wilson Act, 78. 
 
 ARTICLES OF COMMERCE — 
 
 how defined, 33, 49. 
 
 what are not, 56. 
 
 police powers of State over, 55, 59. 
 
 State may not exclude, 154, 193-194 
 AUCTIONEERS — 
 
 taxation of (see Taxation of Occupations), 380. 
 
 B. 
 
 BAKING POWDER— 
 
 State may not exclude, 194 
 BANK — 
 
 authority of Congress to incorporate, 315. 
 
 Federal, State cannot tax operations of, 201, 330. 
 may tax property of, 303, 331. 
 BANKING- 
 
 relation of to commerce, 46, 315. 
 
 BANKS OP STREAMS — 
 
 State and Federal control over, 99, 137. 
 BILLS OF EXCHANGE — 
 
 dealing in, relative to commerce, 46. 
 
 State taxation of, 49. 
 BILLS OF LADING — 
 
 local, for interstate trade, effect, 93. 
 
 State may not tax, 318, 319. 
 
 BOUNDARY STREAMS — 
 
 State power over, 118. 
 
 State may grant franchise for ferriage over, 158, 160. 
 
 State may authorize construction of bridge over, 158. 
 BREAKING OF PACKAGE — 
 
 what constitutes, 84. 
 
 effect of, in relation to State jurisdiction, 84 
 
 effect of, in relation to State laws against monopolies, 389. 
 
INDEX. 357 
 
 BRIDGES— 
 
 Federal power to authorize, 111. 
 
 when State may authorize, 109, 115, 11& 
 
 when State cannot authorize, 114, 118. 
 
 regulation of tolls by Congress, 111. 
 
 State regulation of tolls, 302. 
 
 Congress may authorize condemnation of land for, 111. 
 
 Congress may determine what law shall govern use of, 313. 
 
 extent of power which may be given to Secretary of War over, 136, 
 
 130, 311, 313. 
 taxation of, see Taxation of Bridges. 
 
 BROWN vs. MARYLAND, 18. 
 BURDEN — 
 
 State cannot impose, upon interstate commerce, 187. 
 BUSINESS (see Taxation of Occupations). 
 
 0. 
 
 CABLE — 
 
 telegraph, consent of Congress necessary for landing of, 804, 805. 
 CANALS— 
 
 Congress can authorize administrative oflScers to fix rules governing, 
 311. 
 
 owned by United States, statutes relating to use of, 126, n. 
 
 CAPITAL, TAXATION OF — 
 invested in import trade, 239, 
 invested in vessels, 336. 
 employed in exporting cattle, 223, 238. 
 
 CAPITAL STOCK (see Taxation of Capital Stock). 
 
 CARRIAGE — 
 
 contract of, by what law governed, 167. 
 
 CARRIERS- 
 
 domestic, what are, 90. 
 
 domestic, operating through another State, 87. 
 
 domestic, on navigable waters, 85, 98-106. 
 
 interstate, duties arising from State law, 166. 
 
 of passengers by water, Federal regulation of, 103-105. 
 
 CARS— 
 
 heating of, State may regulate, 184 
 
 of connecting roads, when State may require railroad to draw, 185. 
 
 hauling empty, whether commerce, 45, 48. 
 
 double deck, when State caimot require use of, 175. 
 
358 
 
 INDEX. 
 
 CATTLE (see Antwals) — 
 
 driving of, when protected by commerce clause, 45. 
 
 healthy. State cannot exclude, 146, 171. 
 
 diseased. State may exclude, 57, 170. 
 
 diseased, transportation or exportation of, forbidden, 175. 
 
 State regulation of transportation of, 170. 
 
 damages resulting from communication of disease by, 170, 173. 
 
 State may impose liability for permitting diseased cattle to r un at 
 large, 172. 
 
 Federal inspection of, 57, 175. 
 
 Southern, exclusion of, 193. 
 CHANNEL (see Navigable Watbes). 
 CHARTER — 
 
 of incorporation, Congress may grant, 313-315. 
 
 State may require compensation for grant of, 29S-301. 
 
 compensation may be measured by business of company, 299. 
 or by traflBc carried, 299. 
 
 State may not regulate commerce by control of charter, 293, 301. 
 CHINESE— 
 
 State cannot exclude, 219, 220. 
 
 Federal legislation concerning, 221, 337. 
 CITIZENS— 
 
 right of free travel, 38, 39, 217. 
 
 not a privilege of, to take oysters, when, 151. 
 CIVIL RIGHTS LAWS — 
 
 application of, 174. 
 
 COAST SURVEY — 
 
 Federal power to make, 110, 314 
 COASTING LICENSE — 
 
 does not carry exemption from payment of toUs, 114 
 COLORED PASSENGERS (see Negroes), 87, 174 
 COMBINATION (see Monopoly) — 
 
 of carriers, State control of, 303. 
 COMMERCE — 
 
 among the States and with foreign nations, definition of, 43. 
 
 with Indian tribes, definition of, 341. 
 
 constitutional provisions relating to, 9, 10. 
 
 right of persons to engage in, 37-39, 305. 
 
 articles of, by what authority defined, 49. 
 
 transportation essential to, 48, 44. 
 
 illustrations of business not within Federal control, 55, 
 
 banking is not commerce, 46. 
 
 manufacture is not commerce, 54 
 
 insurance is not commerce, 46. 
 
INDEX. 359 
 
 COMMERCE (continued)— 
 
 gambling is not commerce, 55. 
 commercial agency, conduct of, is not commerce, 55. 
 nor business of building and loan associations, 55. 
 nor lending money, 55. 
 nor mining, 55. 
 nor pool-selling, 56. 
 nor dealing in real estate, 55. 
 nor dealing in futures, 56. 
 when commerce begins, 60. 
 
 by land and water, difiference in extent of Federal power, 98. 
 within State subject to its control, 60, 236, 374. 
 when it ends, 64 
 
 domestic, passing into and from another State, 87. 
 domestic, conducted upon the ocean, 103-106. 
 in aid of, State may legislate concerning, 190. 
 COMMERCE CLAUSE — 
 its origin, 4. 
 
 Pinckney's draft of clause, 7. 
 modification of, by Committee of Detail, 7. 
 the result of compromise, 8. 
 extent of commercial powers debated, 9. 
 COMMERCE CLAUSE, CONSTRUCTION OF— 
 history of rule as to exclusiveness, 10-37. 
 argimient against exclusiveness, 11, 13. 
 early commercial regulations of States, 13. 
 final statement of rule as to exclusiveness, 26, 77. 
 Cooley V. Port Wardens states modem rule, 38, 
 difficulty of applying this rule, 29. 
 purpose of framers as a rule of construction, 31. 
 effect of doctrine of State's rights upon, 36. 
 
 slavery upon, 36. 
 
 overthrow of doctrine of State's rights, 37. 
 
 Fourteenth Amendment, 39. 
 widening scope of the clause, 33. 
 COMMERCIAL TRAVELERS (see Taxation op Occupations) — 
 
 taxation of, 377. 
 COMMON CONTROL — 
 
 defined, 94. 
 COMMON LAW — 
 
 no Federal, preventing obstructions in navigable waters, 117. 
 
 no Federal, regulating carriers, 163. 
 
 of State, its operation in national matters, 164. 
 
 effect upon interstate rates, 163. 
 effect upon discrimination in interstate rates, 163. 
 
360 INDEX. 
 
 COMPENSATION (see Eitnent Domain) — 
 
 riparian owners not entitled to, for injuries resulting from improve- 
 ments in navigable waters, 136. 
 
 ferry owners not entitled to, for injury to franchise resulting from 
 construction of bridge, 136. 
 
 necessary, in taking of property, 186. 
 
 essential to exercise of eminent domain, 814, 315. 
 
 municipal corporation may exact, for regulation, 153. 
 
 CONDEMNATION (see Eminent Domain) — 
 
 of property for erection of bridge, Congress may authorize, 110. 
 
 CONDITION— 
 
 State cannot impose, upon right to transact interstate business, 187, 
 
 195, 275. 
 State cannot impose, upon right of entering or leaving its territory, 
 198. 
 CONFEDEEATION — 
 articles of 
 
 their deficiency on the subject of commerce, 1, 124 
 commercial powers of Congress under, 4. 
 
 CONGRESS- 
 
 commercial powers of, 10. 
 
 different sources of Federal commercial powers, 40. 
 difference in powers of, over foreign,interstate and Indian com- 
 merce, 40, 804, 305, 343, 346. 
 police power of, over commerce, 59. 
 power of, to make local regulations of commerce, 185. 
 nature of commercial power of, 302, 304 
 
 CONSOLIDATION (see Monopoly) — 
 
 of interstate carriers. State control of, 238, 303. 
 
 CONSTITUTIONAL CONVENTION — 
 proceedings of, 4. 
 character of regulation contemplated, 7. 
 
 CONTRACT — 
 
 local, for interstate transportation, effect, 91-94 
 
 of interstate carriage. State cannot tax, 184, 218, 219. 
 
 of interstate carriage, by what law governed, 167. 
 
 for rates not published, illegal, 289. 
 
 power of railroad to make special, under Interstate Commerce Act, 
 
 389. 
 limitation of liability in, 167. 
 
 CONTRACT LABOR— 
 
 Federal statutes concerning, 337. 
 
INDEX. 361 
 
 CONVICTS — 
 
 State may exclude, 56, 147. 
 
 Congress may exclude, 337. 
 CONVICT-MADE GOODS— 
 
 State may not exclude, 194. 
 COOLEY vs. PORT WARDENS, 26. 
 COOLIES— 
 
 immigration of, prohibited, 337. 
 
 CORPORATION (see Chaetee; Franchises; Taxation— Franchises)— 
 
 Congress can grant charter of, 313-315. 
 
 when may be required to appoint resident agent, 178. 
 
 consolidated, may be required to pay charter fee proportioned to cap- 
 ital stock, 238, 300. 
 
 foreign, right to engage in interstate commerce, 190. 
 
 foreign, can be required to file copy of charter, when, 196. 
 
 foreign, cannot be required to file copy of charter, when, 196. 
 
 engaged in commerce, State cannot exclude, 191. 
 
 cannot be required to renounce recourse to Federal courts, 196, 301, 
 302. 
 
 not engaged in interstate commerce. State may exclude, 303. 
 
 entitled to equal protection of laws, 191. 
 
 Federal, right to engage in interstate transportation, 232. 
 
 Federal, State may regulate domestic rates of, 286. 
 
 Congress may regulate domestic rates of Federal, 286. 
 CORPSE — 
 
 is not subject of commerce, 57. 
 
 CREWS — 
 
 of foreign vessels. State cannot prevent from loading their cargo, 193. 
 
 CRIMINAL JURISDICTION OVER INDIANS, 346-350. 
 
 CRIMINALS— 
 
 exclusion of, by State, 56, 155. 
 exclusion of, by United States, 337. 
 
 CROSSINGS — 
 
 of railways. State may require trains to stop before reaching, 179. 
 State may regulate manner of construction, 179. 
 
 D. 
 
 DAMS— 
 
 in navigable waters. Congress can authorize. 111. 
 
 State may authorize, in small streams, 115. 
 DELEGATION OF POWER— 
 
 rule defining power which Congress may grant, 311. 
 
 legislative power cannot be delegated, 309. 
 
362 INDEX. 
 
 DELEGATION OF POWER (continued) — 
 
 power of Secretary of War over navigable waters, 136-134 
 
 to remove obstructions to navigation, 311, 313. 
 
 to permit obstructions to navigation, 318. 
 
 to regulate construction of bridges, 311. 
 
 to require removal of bridges, 313. 
 power of President to suspend right of free importation, 134, 309, 310. 
 
 to regulate importation of liquors into Alaska, 134, 310. 
 power of administrative ofllcers to regulate navigation of canals, 311. 
 power of Interior Department to supervise Indian contracts, 311, 
 power of court to fix toUs on interstate bridge, 309. 
 power of Interstate Commerce Commission to suspend long and short 
 haul clause, 313, 313. 
 
 to extend time to equip cars with safety appliances, 313. 
 question of, as to Wilson Act, 77. 
 DELIVERY— 
 
 to carrier, relation of to Federal power, 63. 
 to consignee, authorized by Wilson Act, 78. 
 effect of, upon Federal power, 66. 
 
 DISCRIMINATION — 
 
 purpose of clause to prevent, 30, 310. 
 diflSculty of detecting, 31. 
 not authorized by Wilson Act, 81. 
 
 in regulations of inspection, pilotage, wharfage, etc., invalid, 156. 
 against commerce of other States, renders tax invalid, 869, 876, 380, 
 383. 
 
 DISCRIMINATION IN RATES — 
 power of State to prevent, 393, 394 
 State common-law concerning, 164 
 
 DISEASE — 
 
 State exclusion of infected articles or persons, 56. 
 DISEASED CATTLE — 
 
 exportation of, forbidden, 57, 175. 
 DISPENSARY ACT OP SOUTH CAROLINA, 79. 
 
 DOMESTIC COMMERCE — 
 
 subject to State regulation, 60. 
 
 by land through other States, 87-90. 
 
 upon the ocean, 85. 
 DRAW-BRIDGE— 
 
 over navigable waters, Federal statute regulating use of, 186, n. 
 DRESSED MEAT — 
 
 decisions relating to State laws excluding, 194 
 
 DRUNKARDS — 
 
 State may forbid sale of liquor to, 84 
 
INDEX. 363 
 
 E. 
 EMBARGO— 
 
 twnstitutionality of, upon foreign trade, 304, 310. 
 cannot be applied to interstate trade, 305. 
 
 EMINENT DOMAIN (see Compensation; Condemnation)— 
 United States may exercise power of, 814 
 
 authorize exercise of power of, 110, 111. 
 proceedings for, in Federal court, 314 
 proceedings for, in State court, 314 315. 
 necessity of making compensation, 814 315. 
 Federal statute relating to, 314 n. 
 
 State cannot discriminate against interstate commerce in granting 
 power of, 301. 
 
 EMPLOYEES OF EAILEOADS — 
 
 State may prescribe qualifications of, 185. 
 
 ENROLLMENT OF VESSELS, 103. 
 
 effect of, in determining situs of vessels, 33&-235. 
 
 ENTRANCE — 
 
 State may not restrict right to, 193. 
 
 State cannot exclude Chinese, 193, 339. 
 
 Congress can exclude Chinese, 239. 
 
 State cannot tax act of, 324 
 
 State cannot impose conditions upon act of, 324 
 
 when State may refuse, to foreign corporations, 317. 
 
 EQUAL PROTECTION OF LAWS (see Foueteenth Amendment) — 
 corporations entitled to, 191, 199. 
 denied by unequal taxation, 199. 
 
 EXAMINATION— 
 
 of raih-oad employees. State regulations of, 185. 
 
 EXCLUSIVE NATURE OF FEDERAL POWER (see Commeeoe 
 Clause). 
 
 EXIT— 
 
 State may not restrict right of, 193. 
 
 State cannot tax right of, 334 
 
 State cannot impose conditions upon, 334 
 
 EXPLOSIVES — 
 
 State regulation of transportation, 57, 73, 311. 
 
 Federal statute relating to transportation of, 57, 79, 309. 
 
 EXPORTS— 
 
 exempt from Federal taxation, 6. 
 
364 INDEX. 
 
 F. 
 
 FEES— 
 
 of pilots, State regulation of, 141, 
 
 for wharfage, State regulation of, 144 
 
 for wharfage, may be graded by tonnage, 145. 
 
 reasonableness of, how determined, 145. 
 
 court may pass upon, 145, 149, 180. 
 
 distinguished from taxes, 148. 
 
 of municipality, to cover expense of regulation, 149. 
 
 for inspection, limitation upon amount, 157. 
 
 power of court over amount of, 157. 
 FELLOW-SERVAI^T RULE — 
 
 State law modifying, may apply to interstate carriers, 167. 
 FENCE— 
 
 State may require carrier to fence right of way, 179. 
 FERRY— 
 
 compared to bridge, 157. 
 
 franchise for. State may grant, 158. 
 
 local relations of, 159. 
 
 national relations of, 160, 161. 
 
 charges for. State may regulate, 159. 
 
 exclusive franchises, State may grant, 159. 
 
 FERTILIZERS — 
 inspection of, 157. 
 State may require ingredients of, to be shown, 157. 
 
 FIRE — 
 
 damage from, State regulations concerning, 170. 
 State may impose liability for, 170. 
 
 FIRE SCREENS — 
 
 State may require use of, on vessels, 184 
 
 FIFTH AMENDMENT, 333, 334 
 
 FISHERIES— 
 
 State may regulate, 150. 
 
 no Federal power over, within State, 151. 
 
 Federal power over, without State, 150. 
 
 FOOD — 
 
 adulterated, importation prohibited, 338. 
 FOURTEENTH AMENDMENT, 39-41, 44 191, 199, 285. 
 
 FRANCHISES (see Charter; Corporations; Taxation— JVancftijes)- 
 taxation of, effect, 308-310. 
 when it involves taxation of operations, 308-210. 
 nature of property in franchises, 208-310. 
 
INDEX. 365 
 
 FEANCmSES (continued) — 
 
 domestic, State may tax, S38, 303. 
 
 rule in case of consolidated company, 338, 800. 
 
 granted by Congress, not subject to State taxation, 330, 333. 
 
 State cannot regulate interstate commerce by control of domestic 
 franchises, 393, 301. 
 
 definition of, 396. 
 
 franchises to be and franchises to do, 396, 397. 
 
 State may tax domestic franchise of corporate existence, 397. 
 
 State may not tax franchise of engaging in interstate commerce, 398. 
 FRAUD, PREVENTION OF, 49, 50, 58. 
 FREEDOM OF COMMERCE — 
 
 the purpose of the clause, 30. 
 FREIGHT, INTERSTATE— 
 
 State cannot regulate time of forwarding, 183. 
 
 State cannot regulate delivery of, on payment of bill of lading 
 charges, 183. 
 
 State cannot require transshipment of interstate freight, 193. 
 FREIGHTS AND FARES (see Eatbb). 
 
 FUTURES— 
 
 dealing in, not commerce, 56. 
 
 G. 
 
 GAMBLING— 
 
 is not commerce, 55. 
 
 GAME- 
 
 State may regulate traflBc in, 150. 
 State may regulate taking of, 150. 
 
 GIBBONS vs. OGDEN — 
 
 its relation to doctrine of nullification, 15. 
 
 H. 
 
 HALL vs. DE CUIE, 87. 
 
 HARBOR— 
 
 Federal statute prohibiting obstructions to, 137. 
 
 power of Secretary of War to authorize filling, 137. 
 
 State may regulate use of, 144 
 
 State power to improve and maintain, 108, 113. 
 
 expense of regulating, may be collected from vessels using, 144 
 
 HARBOR LINES— 
 
 authority of Secretary of War to establish, 137. 
 State may establish, 143, 144 
 
366 INDEX. 
 
 HEALTH— 
 
 power of State to protect, 57, 59, 108. 
 
 HIGHWAY— 
 
 upon navigable waters. Federal power over, 109. 
 navigable waters in public territories declared, 186, n. 
 private obstructions of, in navigable waters, a nuisance, 135. 
 State may not impede use of navigable waters as, 137. 
 State may construct, 161. 
 State may regulate tolls for use of, 161. 
 interstate, Federal control of, 307. 
 Federal statutes concerning, 808, 
 
 HOME PORT — 
 
 of vessel, what is, 23^235. 
 
 L 
 
 IDIOTS — 
 
 State may exclude, 147. 
 
 IMMIGRANTS — 
 
 State may require carrier to make report of, 185. 
 
 State cannot exclude, 59, 218, 220. 
 
 State cannot tax, 214, 218. 
 
 Congress may exclude, 221, 804 
 
 Federal statute relating to, 387. 
 
 Congress can tax, 387. 
 IMMIGRATION — 
 
 State restriction of, Umited by necessity, 147, 148. 
 
 Federal statutes concerning, 387. 
 
 classes of persons excluded, 337. 
 
 Federal taxation of, 804, 337. 
 IMPORTATION OF SLAVES — 
 
 prohibited by States, 13. 
 
 IMPORTED GOODS — 
 
 sale of, not subject to State taxation, 18, 63. 
 IMPORT— 
 
 term defined, 152. 
 IMPORTER — 
 
 who is, 85. 
 IMPORTS — 
 
 State duties on, 108, 197. 
 
 INDECENT ARTICLES — 
 excluded from the mails, 57. 
 importation of, illegal, 57. 
 interstate transportation of, illegal, 57. 
 
INDEX. 367 
 
 INDIANS — 
 
 adoption of the part of clause concerning, 9, 340. 
 nature of Federal jurisdiction over, 340-343, 345, 346. 
 broad definitions given to commerce with, 341. 
 Federal control of, 42, 60, 341. 
 
 criminal jurisdiction of United States over, 341, 343, 346-848, 349. 
 criminal jurisdiction of tribe, 846, 348. 
 
 Federal power over commerce with, not dependent upon locality, 345, 
 346, 349, 350. 
 
 may extend to prohibition of commerce in particular articles, 850, 
 351. 
 
 may limit right of trade to particular persons, 350, 351. 
 Federal statutes regulating this trade, 350, 851, 352. 
 supervision of contracts with, 311. 
 State control of non-tribal Indians, 340, 348, 850. 
 
 INDIAN LANDS — 
 
 nature of Indian title to land, 344, 352-354 
 
 nature of title of United States, 352. 
 
 Federal statutes regulating Indian grants, 358, 354 
 
 INDIAN TRIBES — 
 
 not foreign nations, 342. 
 
 how far independent, 842, 348. 
 
 treaties with, 842, 348, 349. 
 
 occupying Federal territory, origin of Federal power over, 842. 
 
 occupying State territory, origin of Federal power over, 343. 
 
 occupying State territory, State power over, 343-349, 354 
 
 civil and criminal jurisdiction of, 348. 
 
 communication with, on State waters, 99. 
 
 Federal control of dissolving tribes, 343, 844, 349, 350, 353, 354 
 
 State control of dissolving tribes, 341, 343, 344, 358. 
 
 INFECTED GOODS (see Quarantine) — 
 exclusion of, by State, 56. 
 
 INFORMATION CONCERNING TRAINS — 
 State may require posting of, 185. 
 
 INJUNCTION— 
 
 when United States may obtain, to protect navigation, 112. 
 statute necessary for United States to obtain, to protect navigation, 
 
 111, 112, 117. 
 when individuals may obtain, to prevent obstructions in navigable 
 
 waters, 112. 
 use of, to protect interstate highways, 808, 309. 
 grant of, under Anti-Trust Act, 335. 
 mandatory, when not awarded, 335. 
 
368 • INDEX. 
 
 INSPECTION — 
 definition of. 153. 
 State power to make, when derived from commerce clause, 153, 153. 
 
 when derived from inspection clause, 153. 
 operates only on personal property, 154. 
 does not operate on vessels, 154. 
 does not operate on means of transportation, 154 
 does not permit exclusion of criminals, 155. 
 not confined to quality, 156. 
 may apply to form, size and weight, 156. 
 discrimination in, between States, invalid, 150. 
 of articles of interstate and foreign commerce, difference, 153. 
 of fertilizers, 157, 303. 
 fee for, power of court over, 157. 
 
 power of 'congress over, 157. 
 
 INSPECTION OF ANIMALS — 
 Federal statute concerning, 338. 
 
 INSPECTION OF VESSELS, 103. 
 
 under State law, superseded by Federal, 104 
 
 INSTRUMENTALITIES OF COMMERCE — 
 
 Federal control over, 85. 
 
 when State may regulate, 188. 
 
 when State may tax, S39, 330. 
 INSURANCE — 
 
 is not commerce, 46. 
 
 INTENTION— 
 
 to ship, does not make specific goods subject to commerce, 61. 
 to use imported article in violation of State law, effect of, 84 
 INTERNAL IMPROVEMENTS — 
 
 views of President Monroe upon, 107. 
 Congress can authorize, 313. 
 INTERRUPTION OP TRANSPORTATION— 
 what is, 63. 
 effect of, 63, 63. 
 when goods are held for other purpose than to continue transit, 
 
 original movement is ended, 334 
 rule applied to cattle exposed for sale while temporarily detained, 
 333, 338. 
 also to property detained for storage, 333, 334 
 also to cattle driven slowly for grazing, 64 
 INTERSTATE COMMERCE ACT — 
 extent of, 94 286. 
 what is common control, 94 
 long and short haul clause, 313, 313. 
 
INDEX. 369 
 
 INTERSTATE COMMERCE COMMISSION, 388, 389. 
 delegation of power to, 184 313, 313. 
 is an executive body, 389. 
 may not prescribe rates, 390. 
 power to compel testimony, 390, 398. 
 the Brimson Case, 390. 
 
 INTERSTATE TRANSPORTATION - 
 defined, 90, 93. 
 
 domestic carriage through a second State, 87. 
 determined by the fact, not by the contract, 93. 
 
 IRRIGATION — 
 
 State may authorize appropriation of water for, lid. 
 
 J. 
 
 JEWEIiRY— 
 
 peddUng of. State control over, 58. 
 
 JUDICIAL NOTICE— 
 
 taken, of commercial conditions, 140, 
 
 K 
 
 KENDALL— 
 
 views of, concerning State exclusion of abolition matter from 
 mails, 73. 
 
 L. 
 
 LABOR UNIONS — 
 
 restraint of trade by, 838-836, 333. 
 
 LIBERTY (see Futh Amendment; FoxniTEENTH Amendment). 
 
 LICENSE CASES— 
 
 first statement of modem rule by Justice Woodbury, 34 
 LICENSE TAXES ON OCCUPATIONS (see Taxation of Occupation). 
 
 LIFE-PRESERVEES ON VESSELS, 104 
 
 LIGHT-HOUSES — 
 
 federal authority concerning, 110. 
 State authority concerning, 108. 
 
 LIGHTNING RODS — 
 
 erection of, not commerce, 55. 
 
 LIMITATION OF LIABILITY IN CONTRACT OF CARRIER — 
 effect of State law, 167. 
 of vessels, Federal statute, 105. 
 34 
 
370 INDEX. 
 
 LIQUORS— 
 
 subject to State regulations under 'Wilsoii Act, 23, 78. 
 
 effect of previous State statutes, 81. 
 
 State power over sales of, 76, 83, 137. 
 
 State may not exclude, 33, 68, 174, 194. 
 
 State may prohibit sale of, to drunkards, 84 
 
 State may prohibit sale of on Sunday, 84, 178. 
 
 State jurisdiction over original packages held for sale in small quan- 
 tities, 84. 
 
 authority of President to regulate importation of, into Alaska, 134j 
 311, 312, 350. 
 
 LOCAL CARRIERS OF INTERSTATE FREIGHT — 
 Federal power over, 90. 
 
 LOCAL MATTERS — 
 State regulation of, 27. 
 
 LOCAL REGULATIONS — 
 
 extent of State power, 138, 189. 
 
 State power to make, as affected by necessity, 138. 
 
 LOGS, FLOATING OF — 
 State may regulate, 143. 
 
 LONG AND SHORT HAUL CLAUSE, 312, 313. 
 
 LOTTERY — 
 
 conduct of, is not commerce, 55. 
 circulars of, excluded from mails, 57. 
 
 M. 
 
 MAILS — 
 
 State law excluding abolition matter from, 73. 
 gambling circulars excluded from, .56. 
 money for purchase of lottery tickets excluded from, 56. 
 indecent articles excluded from, 57. 
 
 MAINE vs. GRAND TRUNK RAILWAY — 
 effect of case, 266, 367. 
 
 its departure from earlier cases, 203, 204 
 its departure from principle, 272, 273. 
 MANUFACTURE- 
 
 is not commerce, 54, 339. 
 
 not within Federal act against monopolies, 326, 327. 
 MARITIME JURISDICTION (see Admiealtt). 
 
 MEANS OP COMMERCE — 
 Federal control over, 86. 
 
INDEX. 371 
 
 MEAT — 
 
 dressed, State may not exclude, 194 
 
 Federal inspection of, 338. 
 MEDICINE — 
 
 practice of, not commerce, 55. 
 
 State may regulate sale of, 280. 
 MIGRATORY STOCK LAWS, 64. 
 MONOPOLY — 
 
 in passenger transportation under State law, 13. 
 
 State cannot grant, for navigation of interstate waters, 15. 
 
 Federal legislation concerning, 817. 
 
 extent of the Federal prohibition, 319. 
 
 Trans-Missouri Freight Association Case, 319. 
 
 reasonable contracts prohibited, 319. 
 
 radical nature of this rule, 883. 
 
 right to make reasonable contracts protected by the Fifth Amend- 
 ment, 338, 384 
 Fourteenth Amendment, 334 
 
 reasonable restraints auxiliary to lawful contracts, 334 
 
 operation of act includes railroads, 321. 
 
 injimctions under the act, 318, 824, 326, 335. 
 
 restraint of trade by labor unions, 828, 326, 333. 
 
 line between State and Federal law against monopolies, 326. 
 
 Federal statute does not affect domestic commerce, 326-839. 
 
 does not affect manufacture, 826, 327. 
 
 State law against, applies to sale of broken packages, 329. 
 
 relation of Wilson Act to State statutes against monopolies, 335, 33& 
 MOTIVES OF LEGISLATORS— 
 
 distinguished from pturpose of statute, 140. 
 
 K 
 
 NATIONAL MATTERS — 
 
 Federal commercial power over, exclusive, 27. 
 
 NATURAL GAS— 
 
 State regulations of transportation, 195. 
 
 NAVIGABLE WATERS— 
 defined, 98, 124 
 are national highways, 86, 98. 
 origin of Federal jurisdiction over, 98. 
 growth of Federal power, 107. 
 extent of Federal power, 109. 
 
 within State, not accessible from other States, 99, 100. 
 State jurisdiction over waters where interstate trafHc is small, 100. 
 
372 INDEX. 
 
 NAVIGABLE WATERS (continued) — 
 
 rule of the road, 103. 
 
 vessels on, subject to Federal control, 104 
 
 State improvement of, 113. 
 
 power of State to authorize obstructions of, 113. 
 
 power of State to prevent obstructions of, 111, 112, 113. 
 
 subject to State police laws, 137. 
 
 sale of liquors upon, subject to State control, 137, 
 
 State may prohibit deposits in, 143. 
 
 State may regulate floating of logs in, 143. 
 
 State power as affected by establishment of port of entry, 120. 
 
 improvements in, by State and United States, history of, 108. 
 
 distinction between State power over local streams and over inter- 
 state streams, 118. 
 
 nature of public easement in, 135. 
 
 banks of, jurisdiction over, 99. 
 
 soil under, jurisdiction over, 99. 
 
 natural and artificial highways, 99, 100. 
 
 navigability, how determined, 100. 
 
 obstruction to, present rule defining State and Federal powers over, 
 117. 
 
 Federal power to remove obstructions, 110. 
 
 Federal power to authorize improvements in, 110. 
 
 alteration of channel, 110. 
 
 obstructions in interstate streams, 118. 
 
 Federal statutes concerning, 126, 809. 
 
 in territory occupied by public lands, declared public highways, 
 126, n. 
 
 construction of Federal statute concerning obstructions in, 131. 
 
 delegation of power to Secretary of War concerning, 129. 
 
 taking soil under, for public improvement, 136. 
 
 right of riparian owners, 136. 
 
 injury to riparian owner by improvement in, 137. 
 
 right of riparian owner of access to and from, 135. 
 NAVIGATION — 
 
 State cannot grant exclusive right of, in interstate waters, 15. 
 
 of public waters, secured by admiralty clause, 44. 
 
 Federal control over, 85, 86. 
 
 extent of Federal jurisdiction over, 98. 
 
 State may not restrict right of navigating public waters, 109, 110. 
 
 obstructions which State may authorize, 115. 
 
 local regulations concerning obstructions, 115. 
 
 right of, not paramount to right of transportation by land, 115. 
 
 what obstructions State cannot authorize, 114. 
 
 right of, does not authorize appropriation of banks for ferry, 159. 
 
INDEX. 3T3 
 
 NAVIGATION (continued) — 
 
 does not include right to collect ferry toUs, 159. 
 
 obstruction to, Congress can authorize Secretary of "War to remove, 
 
 311. 
 of canals, Congress can authorize administrative officers to fix rules 
 concerning, 311. 
 
 NECESSITY OF REGULATION — 
 
 effect upon State powers, 138. 
 
 State cannot exceed, in the exercise of its police power, 193. 
 NEGLIGENCE — 
 
 contract of carrier limiting liability for, efEect of State law upon, 
 167. 
 
 operation of State law governing liability for, 168, 173, 177. 
 
 death resulting from, when State may give right of action for, 169. 
 
 NEGOTIATIONS — 
 
 for interstate transportation, within Federal control, 61. 
 
 NEGROES (see Colored Passengers) — 
 
 State laws regulating accommodations for, 174 
 
 NEW YORK vs. MILN — 
 
 its statement of State reserved powers, 21. 
 NOTICE — 
 
 as condition precedent to suit, contract for invalid, 168. 
 NULLIFICATION — 
 
 doctrine of, involved in Gibbons v. Ogden, 15, 
 
 NUISANCE — 
 
 what obstructions in navigable waters are, 111, 118. 
 
 o. 
 
 OBSCENE PAPERS — 
 
 State may exclude, 57. 
 
 are excluded from mails by Congress, 57. 
 OBSTRUCTIONS TO INTERSTATE COMMERCE— 
 
 power of Congress to remove, 807, 309. 
 
 Federal power to keep highways of commerce open and safe, 807' 
 309. 
 
 power may be exercised through the courts, 308, 309; 
 
 OBSTRUCTIONS IN NAVIGABLE WATERS— 
 Federal power to prevent, 109. 
 Federal legislation concerning, 126, 127. 
 power of Secretary of War to remove, 138, 311. 
 construction of Federal statute concerning, 131. 
 injunction to restrain, 112. 
 power of State to prevent, 113, 143. 
 
374 INDEX. 
 
 OBSTRUCTIONS IN NAVIGABLE WATERS (continued)— 
 
 local regulations concerning, 115, 
 
 when State may authorize, 115. 
 
 the purpose of obstruction, significance of, 116. 
 
 present rule defining State and Federal powers, 117. 
 
 common law concerning, 119. 
 OFFICE — 
 
 maintenance of, for interstate commerce, not subject to State tax- 
 ation, 270, 271. 
 OLEOMARGARINE — 
 
 cases, 49-54 
 
 State may not exclude, 194. 
 
 decisions in regard to discoloration of, 49-54 
 
 power of State to prevent fraud in sale of, 49-54 
 
 OPERATIONS — 
 
 of interstate commerce beyond State jurisdiction, 201, 203. 
 
 taxation of, when involved in taxation of franchises, 207-210. 
 
 of Federal corporations, State cannot tax, 230. 
 ORDINANCE OF 1787 — 
 
 its provision for freedom of navigation, 123. 
 
 navigation of Mississippi river, 120. / 
 
 purpose of this provision, 123. 
 
 its early construction, 123. 
 
 did not prevent States from authorizing erection of bridges, 125. 
 
 adopted in legislation concerning Mississippi Territory, 121. 
 
 also in legislation concerning territory south of River Ohio, 121. 
 
 also in acts creating State governments, 121. 
 
 provision inefEeotual as limitation upon States, 121. 
 but valid as a commercial regulation, 122. 
 
 present operation of provision depends upon legislation of Congress, 
 123, 124 
 ORIGINAL PACKAGES — 
 
 defined, 82. 
 
 form of, 83. 
 
 size of, 83. 
 
 extent of State jurisdiction over. Si, 203. 
 
 imported for unlawful use, 84 
 
 breaking, effect of, 84, 329. 
 
 sale of, 85. 
 
 taxation of, 208. 
 
 taxation of, difference between in case of articles brought from for^ 
 eign countries and other States, 68j 226, 
 ORIGINAL PACKAGE RULE, 66. 
 
 the rule stated, 67. 
 
 Woodruff V. Parham, 67. 
 
INDEX. 375 
 
 ORIGINAL PACKAGE RULE (continued) — 
 Bowman v. Northwestern Railroad Co., 68. 
 Leisy v. Hardin, 34. 
 the rule one of convenience, 70. 
 its logical difficulties, 70. 
 
 State exclusion of abolition matter from United States mails, 73. 
 views of Prof. Von Hoist as to this jurisdiction, 73. 
 argument of Postmaster-General Kendall on same subject, 73. 
 the "Wilson Act, 7a 
 
 OYSTERS— 
 
 State may regulate taking of and traffic in, 150-153. 
 
 P. 
 
 PAPERS, OBSCENE — 
 State may exclude, 57. 
 are excluded from mails by Congress, 57. 
 
 PASSAGE — 
 
 right of, in navigable water, 137. 
 
 PASSENGER CASES, 34 
 
 Justice Woodbury's statement of modem rule, 34 
 
 PASSENGER TRANSPORTATION — 
 monopoly of by State law, 13. 
 transportation of, is commerce, 35, 45, 318-331. 
 colored passengers, 87. 
 right to benefit of State laws, 177. 
 are subject to process of State courts, 177. 
 
 State may require carrier to make report of alien passengers, 185. 
 State cannot require carrier to give bond to remove or support, 196, 
 
 319. 
 State cannot tax interstate, 37, 317-331. 
 State cannot tax immigration, 314 
 by sea, Federal regulations concerning, 104^ 837, 338. 
 admiralty jurisdiction over, by sea, 105. 
 
 PAUPERS— 
 
 State may exclude, 147. 
 PEDDLERS (see Taxa.tion op OcO0PATIONS) — 
 
 taxation of, 379. 
 
 personal rights. State protection of, 177, 311. 
 
 PIERS IN NAVIGABLE "WATERS — 
 
 United States may authorize construction o^ 110. 
 State may authorize construction of, 113. 
 right of riparian owner to construct, 135. 
 
376 INDEX. 
 
 PILOTAGE — 
 
 regulation of, 138, 140. 
 
 act of Congress permitting State regulation of, 140. 
 
 construction of this statute, 140, 141. 
 
 State laws concerning, apply to all vessels navigating State waters, 
 
 141. 
 State regulation of charges for, 141. 
 
 State laws concerning, may operate beyond State limits, 143i 
 State regulation of, superseded by Federal legislation, 142^ 
 Federal power over, 86, 143. 
 discriminating regulation of, invalid, 148, 150. 
 
 POLICE LAWS OF STATE— 
 
 extend over navigable waters, 137. 
 constitutional limitations upon,' 59. 
 characteristics of, 139, 140. 
 
 POOLING — 
 
 forbidden under Interstate Commerce Act, 288. 
 
 PORT CHARGES — 
 
 dependent upon services, 148. 
 
 PORT OF ENTRY — 
 
 establishment of, efiEect upon State power, ISO. 
 
 PORT REGULATIONS, 144 
 
 limitation upon State power to make, 145. 
 
 PORT WARDENS — 
 
 collection of fees for services of, 143. 
 
 power of State to appoint, 143. 
 POST-ROADS— 
 
 views of President Monroe on Federal power to establish, 107. 
 
 all public roads and highways are, 308, n. 
 
 water-ways are, 308, n. 
 POWER (see Delegation op Powee) — 
 
 delegation of, when vaUd, 139-135, 309-313. 
 
 PREFERENCE CLAUSE OF CONSTITUTION, 10, 305. 
 
 purpose of this clause, 305-307. 
 
 a limitation upon Federal power, 306, 307. 
 
 decisions relating to, 307. 
 PRICE OF GOODS (see Pctkohasb Price). 
 PRIVILEGES OF CITIZENSHIP — 
 
 include right of travel, 217, 318. 
 PROPERTY RIGHTS — 
 
 State protection of, 177. 
 
INDEX. 37Y 
 
 PURCHASE PRICE — 
 
 State cannot deny recovery of, for property imported under Federal 
 
 law, 177. 
 when State may deny recovery of, 78, 79. 
 
 PURCHASES AND SALES (see Taxation op OcctJPATiONs) — 
 taxation of, 281. 
 
 purpose of commerce clause, 1, 3. 
 purpose of statute disclosed in its effect, 139, 
 purpose of transportation, relation of to Federal power, 61, 63, 334, 
 
 Q. 
 
 QUARANTINE — 
 
 State may make regulations of, 146. 
 
 State may impose charges for, 146. 
 
 State regulations of, recognized by Federal statute, 146. 
 
 State regulations may apply to traffic from other States, 147. 
 
 of diseased animals, 338. 
 
 E. 
 
 RAILROADS — 
 
 are included m operation of Federal Anti-Trust law, 331. 
 RATES — 
 
 taxation and regulation of, compared, 90, 283. 
 
 domestic, State can regulate, 384 
 
 for transportation between State passing through second State, regu- 
 lations of, 87-90. 
 
 through, not requisite to interstate transportation, 93. 
 
 taxation of, 89, 90. 
 
 regulation of, see Regulation op Rates. 
 
 State may tax interstate rates, 384 
 
 publication of, under Interstate Commerce Act, 388. 
 
 contracts for special rates illegal, 388. 
 
 regulation of warehouse rates, 294, 395. 
 
 local regulations affecting rates, 295. 
 
 State may require rates to be published, 295. 
 
 State may prevent increase after tender of freight, 295. 
 
 regulation of, by cohtrol of or stipulations in charters, 393, 298, 301, 303. 
 
 State can prevent domestic corporation from entering combinations 
 to control, 803. 
 REASONABLE RESTRAINT OF TRADE (see Monopoly). 
 
 REASONABLENESS — 
 
 of rent charged for use of street, power of court to consider, 149, 180. 
 
 of inspection fee, power of court to consider, 149. 
 
 of wharfage fee, 145. 
 
 of quarantine charge, 148. 
 
 of railroad rates, differs in different States, 88. 
 
378 
 
 INDEX. 
 
 REGISTRY OP VESSELS, 103. 
 
 its importance in determining situs, 233-235. 
 REGULATION — 
 
 defined, 188-190. 
 
 not always imposition of buiden, 188. 
 
 State cannot regulate interstate rates, 284, 385. 
 
 compared with taxation of rates, 90, 283. 
 
 State regulation of domestic rates, 384. 
 
 State cannot discriminate against interstate commerce in regulation 
 of domestic rates, 286. 
 
 State regulation of rates charged by Federal corporations, 285, 386. 
 
 Federal power to regulate interstate and foreign rates, 386. 
 
 Interstate Commerce Act, 388. 
 
 Commission cannot prescribe rates, 390. 
 
 REMEDY — 
 
 State cannot deny, for wrongful exclusion of passenger from car, 177. 
 State cannot prevent recovery by vendor for property imported 
 under Federal law, 177. 
 
 RENT — 
 
 may be charged for use of street by carrier, 149, 180. 
 
 reasonableness of charge, how determined, 180. 
 REPEAL — 
 
 when act of Congress does not repeal State laws, 186. 
 
 RESTRAINT OP TRADE (see Monopoly) — 
 
 reasonable contract in, prohibited by Federal statute, 319. 
 doubtful constitutionality of this construction, 833, 384. 
 
 RIGHT OF WAY — 
 
 State may require carrier to fence, 179. 
 
 State may require carrier to record conveyance of, 179. 
 
 State may require carrier to light, 179. 
 
 State may regulate mode of construction upon 179. 
 
 RIPARIAN RIGHTS — 
 
 injury to, by improvements in navigable water, 136. 
 upon navigable waters, subject to public easement, 185. 
 compensation for, in condemnation cases, 136. 
 
 ROAD — 
 
 rule of, applies to aU vessels in public waters, 103. 
 
 ROLLING STOCK (see Taxation of Rolling Stock). 
 
 S. 
 SAFETY APPLIANCES — 
 
 extension of time to equip oars with, 313. 
 
INDEZ. 379 
 
 SALE OP mPOETED GOODS — 
 not subject to State taxation, 18. 
 
 State cannot impose license tax for sale of original packages, 274, 
 275, 279. 
 
 SALE OF RAILWAY TICKETS (see Tickets)— 
 
 State may regulate, 183, 
 SECRETARY OP WAR — 
 
 power to establish harbor lines, 128. 
 
 power over bridges, 126, 127, 130. 
 
 power to authorize alterations in navigable waters, 127. 
 
 power to remove obstructions in navigable waters, 133. 
 
 delegation of power to, 311, 312. 
 
 SILENCE OF CONGRESS — 
 
 how far it excludes State action in national matters, 26, 163, 164 
 permits State action in local matters, 19, 27, 28, 163. 
 
 SITUS— 
 
 as affected by purpose of transportation, 61-63. 
 
 what is, for different purposes, 211. 
 
 of vessel, for taxation, how determined, 232-235. 
 
 SLAVERY (see Mails) — 
 
 influence of, on construction of commerce clause, 36, 213. 
 
 SLAVES — 
 
 importation and migration of, 212. 
 
 SMOKE — 
 
 emission of, by vessels, local regulations concerning, 103. 
 
 SOIL UNDER NAVIGABLE WATERS— 
 
 title to, by what law governed, 99, 135. 
 
 nature of rights in, 137. 
 
 ownership of, subject to public easement, 135. 
 
 use of, for cultivating oysters and fish, not a privilege of citizenship, 
 150. 
 SOUTH CAROLINA DISPENSARY ACT, 79. 
 
 SPEED — 
 
 of vessels, local regulation of, 103. 
 
 of railroad trains. State regulation of, 179. 
 
 STATE REGULATIONS— 
 
 aflfeotiag cormnerce, when vaUd, 139. 
 
 STATES — 
 
 equality of, 122. 
 
 STATES RIGHTS— 
 
 doctrine of, involved in Gibbons v. Ogden, 15. 
 effect of doctrine upon construction of clause, 36L 
 effect of overthrow of this doctrine, 37. 
 
380 INDEX. 
 
 STATIONS— 
 
 State regulation of railroad accommodations in, 87, 179. 
 STATUTE — 
 
 purpose ot, disclosed in its effect, 139. 
 
 Federal, concerning navigable waters, 126-134 
 
 STATUTE OF LIMITATIONS — 
 
 of State, when enforced in Federal court, 179. 
 STOPPAGE — 
 
 temporary, does not terminate transit, 63, 63, 
 
 when it terminates transit, 63. 
 STOPPING TRAINS — 
 
 State may require, at county seats, 184 
 and at crossings of railroads, 87. 
 STBEAM — 
 
 unimportant, when considered navigable waters, 100. 
 State may close, 115. 
 
 State may use for water-power or irrigation, 116. 
 STREET— 
 
 carrier using, may be required to pay rent, 149, 180. 
 
 court may consider reasonableness of rent charged for use ot, 149^ 
 180. 
 SUBJECTS OF COMMERCE (see Articles op Commbece). 
 
 SUNDAY— 
 
 State may prohibit sale of liquor on, 84 
 
 laws of State, application to interstate commerce, 178. 
 SURVEY OF COASTS, ETC.— 
 
 Federal power to make, 110, 814 
 SURVEY OF VESSELS — 
 
 State cannot require, by State officers, 193. 
 SWITCH TRACK— 
 
 State may compel construction, 179. 
 
 SWITCHING— 
 
 regulated by Interstate Commerce Act, 95. 
 
 when State may regulate, 95, 185. 
 
 charge, when subject to State regulation, 185. 
 
 T. 
 
 TARIFF— 
 
 protective, 238, 304 
 
 power of President to suspend provisions of, 134, 309, 310i 
 
 TAXATION— 
 
 is regulation, 198. 
 
 Federal power of, involves commercial power, 10. 
 
INDEX. 381 
 
 TAXATION (continued) — 
 
 validity of, determined by subject upon which tax is laid, 200. 
 
 jurisdiction essential to validity, 200. 
 
 State may tax domestic commerce, 236, 237. 
 
 State cannot so tax domestic commerce as to discriminate against 
 interstate, 237. 
 
 State cannot tax interstate commerce, 201. 
 
 of biUs of exchange, 49. 
 
 State may tax property of agents of interstate commerce, 201. 
 
 State may not tax operations of interstate commerce, 201, 303, 203. 
 
 distinction between taxation of property and operations, 301, 202. 
 
 conflict of decisions concerning, 302. 
 
 historical development of modem rule, 204, 307. 
 
 apportionment, taxation according to rule of, 307, 340, 368. 
 Transit — 
 
 persons and property in, not subject to State taxation, 31, 38, 314, 
 315, 349. 
 
 historical development of this rule, 312, 221. 
 
 passengers may not be taxed for inspection, 218. 
 
 State cannot tax contracts for transportation, 218, 319. 
 
 freight in interstate transit, early cases supporting State tax, 331. 
 
 modem rule forbids such taxation, 328. 
 
 property in. transit temporarily detained not subject to State taxa- 
 tion, 233, 334 
 Property Having Situs Within State — 
 
 property within State subject to its taxation, 312, 335, 329, 375. 
 
 of Federal corporation, when taxable by State, 330-332. 
 
 original packages imported from foreign countries not subject to 
 State taxation, 226. 
 
 original packages imported from other States are subject to State 
 taxation, 226-238. 
 
 discrimination, when a test of validity of State taxation, 327, 336, 
 269, 276. 
 
 when State may tax capital invested in imported goods, 229. 
 
 when State may tax vehicles of commerce, 229. 
 Vessels — 
 
 subject to State taxation at home port, 233-235. 
 
 situs of vessels for taxation, what is, 232-235. 
 Domestic Commerce — 
 
 within State, subject to its taxation, 236. 
 
 such taxation not iavaJid because of indirect eflEeot on interstate 
 commerce, 336. 
 Capital Stock — 
 
 charter fee may be required proportioned to, of consolidated com- 
 pany, 338. 
 
382 INDEX. 
 
 TAXATION (continued) — 
 Capital Stock (continued) — 
 taxation upon, is tax upon property and assets of corporation, 237. 
 State may tax entire capital stock of domestic corporation, 238. 
 of foreign corporation,, how far subject to State taxation, 239. 
 apportionment of capital stock for taxation, 240-244, 272. 
 histoiy of development of this rule, 241-244, 272. 
 of foreign corporation, employed without State, not subject to its 
 taxation, 289, 240. 
 
 Federal Corporations — 
 property within State subject to its taxation, 230, 232. 
 
 Telegraph and Telephone Properties — 
 property of these companies appraised as a unit, 243, 245. 
 
 this involves appraisal of business, 237. 
 application of the rule of apportionment, 240. 
 State cannot tax interstate telegrams, 249. 
 State may tax domestic telegrams, 249. 
 
 Boiling Stock — 
 
 State taxation of, 203, 229, 249. 
 
 property of car companies appraised as a unit, 249-253. 
 
 situs of cars crossing State lines, 249-253. 
 
 application of rule of apportionment, 251-253. 
 Vehicles — 
 
 in casual transit. State cannot tax, 249. 
 Railway Right of Way — 
 
 right of way appraised as a unit, 253-256. 
 
 Bridges — 
 taxation of, 256. 
 application of unit rule, 256. 
 value of bridge determined by its xise, 256. 
 
 Express Companies — 
 application of unit rule, 243, 257-360. 
 
 application of apportionment rule, 208, 211, 240, 242, 248, 257-363. 
 express business, interstate, state cannot tax, 266. 
 express business, interstate. State cannot tax indirectly, 237. 
 express business, interstate, formerly taxed by States, 268. 
 express business, domestic, State can tax, 274. 
 
 Receipts — ^ 
 
 State may tax receipts derived from domestic commerce, 203, 260, 
 263, 366-368. 
 
 State may not tax receipts derived from interstate and foreign com- 
 merce, 203, 264r-266. 
 
 history of decisions, 307, 261-368. 
 
 application of rule of apportionment, 207, 240, 259, 266. 
 
INDEX. 383 
 
 TAXATION (continued) — 
 Occupations — 
 
 history of decisions, 368-274. 
 
 occupation of conducting domestic commerce may be taxed by 
 State, 274 
 
 license tax for maintenance of office, 370, 371. 
 
 license tax for soliciting railway traffic, 370. 
 
 license tax for maiataining ferry across State line, 371. 
 
 application of rule of apportionment to carrier engaged in domestic 
 and interstate traffic, 272, 273. 
 
 discrimination against other States always invalid, 383. 
 Drummers — 
 
 taxation of, by States, for a time sustained, 33, 377. 
 
 occupation of selling goods to be imported not subject to State tax- 
 ation, 377. 
 
 conflict of decisions where goods have been imported, 378, 379, 
 
 the rule supported by weight of authority, 341, 379. 
 
 latent discrimination in taxation of, 305. 
 Peddlers — 
 
 occupation of, subject to State taxation, 379. 
 and otherwise to State control, 380. 
 
 discrimiaating regulations invalid, 380. 
 Auctioneers — 
 
 occupation of, subject to State taxation, 280. 
 
 Indian trader. State cannot tax property of, upon reservation, 339. 
 Purchases and Sales — 
 
 taxation of, falls upon operations of commerce, 881, 383. 
 
 interstate commerce not subject to State taxation, 381. 
 
 taxation of, sometimes sustained, 381, 283. 
 Franchises — 
 
 taxation of, 303, 204, 237. 
 
 State may tax corporate franchise of domestic corporation, 210, 232, 
 345, 302. 
 
 State may tax franchise of consolidated company, 256. 
 
 State may not tax franchise of engaging in interstate commerce, 
 233, 346, 371, 273, 298. 
 
 TAXES — 
 
 disting^uished from fees and toUs, 148. 
 
 State cannot impose upon contract of interstate carriage, 184 
 
 State cannot impose upon act of entering or leaving its territory, 193. 
 
 TELEGRAMS — 
 
 transmission of, commerce, 46. 
 
 transmission and delivery of, 181. 
 
 State may regulate delivery of messages within its limits, 181. 
 
 State may not regulate delivery of messages without its limits, 181. 
 
384 
 
 INDEX. 
 
 TELEGRAMS (continued) — 
 
 when Federal dispatches have precedence, 183. 
 
 State regulation, order of transmission, 183. 
 
 interstate, not subject to State taxation, 333. 
 TELEGRAPH — 
 
 wires, may be required to be placed xmderground, 179, 180. 
 
 companies, duty to receive messages, 180. 
 
 companies, charge upon for use of streets, 180. 
 
 amount of such charge must be reasonable, 180. 
 
 cable, consent of Congress necessary for landing of, 304, 805. 
 TELEPHONE MESSAGES — 
 
 transmission of, is commerce, 46. 
 TERMINAL POINTS — 
 
 Federal control over handling at, 94. 
 
 TERRITORIES — 
 
 trade with, Federal power over, 60, 805. 
 TICKETS — 
 
 State may regulate sale of, 168, 169, 188. 
 
 mileage. State cannot require for interstate travel, 188, 184 
 
 State cannot fix time for which they shaU be good, 188, 184 
 
 nor give right of stoppage, 184 
 
 nor require carrier to redeem unused portion, 184 
 
 nor tax, 184 
 through, not requisite to interstate transportation, 93. 
 
 TOLLS — 
 
 for use of improved channel, 110, 118. 
 
 power of United States to coUect, 110. 
 
 power of State to collect, 113. 
 
 for use of improved navigation, permitted under Ordinance of 1787, 
 
 135. 
 
 distinguished from taxes, 148. 
 
 of interstate bridge. State cannot regulate, 303. 
 
 Congress can authorize court to fix, 309. 
 TONNAGE TAX — 
 
 State may not impose, 195, 335. 
 
 extent of Federal prohibition, 199. 
 
 State taxation of freight transported by vessels, when within this 
 clause, 335. 
 
 instances of, 335. 
 
 includes any tax upon a vessel imposed because employed in com- 
 merce, 335. 
 
 TRADE-MARKS — 
 
 when Federal power over, begins, 61. 
 
 Federal legislation concerning, 316. 
 
 Federal statute does not affect domestic trade, 317. 
 
INDEX. 385 
 
 TRAINS — 
 
 State may require to stop at county seats, 184 
 
 TRANSPORTATION — 
 
 essential to commerce, 43, 44 
 
 liberty of transportation, 44, 59. 
 
 incidental to local purposes, its relation to Federal power, 45, 63, 64 
 
 interstate, when it begins, 61. 
 
 interruption of, 63. 
 
 interstate, when it ends, 64 66. 
 
 between points in a State over territory of another State, 87. 
 
 between points in a State by ocean navigation, 85, 86. 
 
 within a State, when subject to Federal power, 90-93. 
 
 interstate, State may not restrict, 192. 
 
 between States and Territories, Federal power over, 60, 805. 
 
 TRANSSHIPMENT — 
 
 of freight, does not terminate transit, 63. 
 State cannot require, of interstate freight, 193. 
 
 TRAVEL — 
 
 liberty of, 44 59. 
 
 right of, secured by commerce clause, 214 318, 319. 
 State cannot prohibit hiring of laborers to go beyond the State, 217, 
 318. 
 
 TUGS — 
 
 State license taxes upon, 91. 
 
 V. 
 
 VALUATION — 
 
 of property, how far use may be considered in appraising, 358. 
 
 difficulty of ignoring specific uses, 341-344 
 
 result of including value of business in appraising for taxation, 245. 
 
 VESSELS— 
 
 conveyances of. Federal statute concerning, 103, 
 Federal jurisdiction over, 86, 101, 105. 
 inspection of, 103. 
 limitation of liability of, 105. 
 taxation of, see Taxation op Vessbi& 
 
 w. 
 
 WATER-POWER— 
 
 State may authorize use of streams for, 11& 
 
 WAY-BILL— 
 
 local, for interstate freight, effect, 93. 
 25 
 
386 INDEX. 
 
 WHARFAGE — 
 
 State regiilations concerning, 144, 145. 
 State regulation of charges for, 144, 145. 
 
 WHARVES— 
 
 State may authorize construction of, 113, 144 
 
 right of riparian owners to construct, 135. 
 
 United States may authorize construction of, 110. 
 
 State may regulate use of, by yessels, 144, 145. 
 
 State may designate, 144, 145. 
 
 fee for use of, required only for facilities furnished, 145. 
 
 WHEELING BRIDGE CASE, 119, 130. 
 
 WILSON ACT— 
 
 re-establishes as to liquor a State jurisdiction formerly eicercised to 
 exclude anti-slavery publications, 74, 76. 
 
 its analogy to other Federal statutes, 76, 79. 
 
 provision of this act, 76, 77. 
 
 the act is constitutional, 77, 309. 
 
 construction of the phrase " upon arrival," 78, 79. 
 
 recognizes only poUoe laws of State, 80, 81. 
 
 does not authorize discrimination, 80. 
 
 effect upon Dispensary Act of South Carolina, 79. 
 
 permits operation of prior State laws, 81. 
 
 relation of, to State statutes against monopolies, 335-337. 
 WILLSON vs. BLACKBIRD CREEK MARSH COMPANY, 19. 
 
 imcertainty introduced by this decision, 20. 
 
 its implied suggestion of modern rule, 19. 
 
 WITNESSES — 
 
 power of Commission to compel testimony, 390. 
 
^"^ 
 
 KF i^6o6 P92 
 
 Author . . „ _ T Vol. 
 
 Prentice, Ezra Parmelee 
 
 ™' The commerce clause of the ^opy 
 federal Constitution. 
 
 Date 
 
 7/V/7? 
 
 Borrower's Name 
 
 *^ l5orri 
 
 ' a79 c|/-^