Opinion of the Court.

G. Asher, was drumming at the time of his arrest; that the relator, Asher, was soliciting said orders and was making said sales for his said non-resident employers in the county of Harris and in the State of Texas."

Being imprisoned for failure to pay the fine imposed upon him, Asher applied to the Court of Appeals for a writ of habeas corpus to be discharged, on the ground that the law under which he was restrained of his liberty is unconstitutional and void, and contravenes the Constitution of the United States, being repugnant to that clause thereof which gives to Congress the power to regulate commerce among the several States, and the laws of Congress passed thereunder. The writ of habeas corpus was issued, and, the matter being argued before the Court of Appeals, judgment was given against the petitioner, and he was remanded to the custody of the sheriff. To review that judgment this writ of error is brought.

We cannot perceive any distinction between this case and that of Robbins v. The Shelby Taxing District, decided in October Term, 1886, and reported in 120 U. S. 489. The Tennessee law in that case declared that " All drummers, and all persons not having a regular licensed house of business in the taxing district, offering for sale or selling goods or merchandise therein, by sample, shall be required to pay to the county trustee the sum of $10 per week, or $25 per month, for such privilege;" and it was made a misdemeanor, punishable by fine, to exercise such occupation without having first paid the tax, or obtained the license required therefor. The plaintiff in error in that case was a citizen of Ohio, and was convicted for selling goods by sample for an Ohio firm without having paid the tax or obtained the required license. The law was, in all substantial respects, the same, and the circumstances were substantially the same as in the case now presented. Indeed, this is conceded by the Court of Appeals of Texas in its opinion. But it is strenuously contended by that court that the decision of this court in Robbins v. The Shelby Taxing District is contrary to sound principles of constitutional construction, and in conflict with well adjudicated cases formerly decided by this court and not overruled. Even if it

Syllabus.

were true that the decision referred to was not in harmony with some of the previous decisions, we had supposed that a later decision in conflict with prior ones had the effect to overrule them, whether mentioned and commented on or not. And as to the constitutional principles involved, our views were quite fully and carefully, if not clearly and satisfactorily, expressed in the Robbins case. We do not propose to enter upon a renewed discussion of the subject at this time. If any further illustration is desired of the unconstitutionality of local burdens imposed upon interstate commerce by way of taxing an occupation directly concerned therein, reference may be made to the still more recent case of Leloup v. Port of Mobile, 127 U. S. 640, which related to a general license tax on telegraph companies, and was decided by the unanimous concurrence of the court.

The judgment of the Court of Appeals of Texas is reversed, and the cause remanded, with instructions to discharge the plaintiff in error from the imprisonment complained of.

CHAPPELL v. BRADSHAW.

ERROR TO THE COURT OF APPEALS OF THE STATE OF MARYLAND.

No. 1037. Submitted October 22, 1888. - Decided October 29, 1888.

To give this court jurisdiction to review the judgment of a state court under § 709, Rev. Stat. because of the denial by the state court of any title, right, privilege or immunity, claimed under the Constitution or any treaty or statute of the United States, it must appear on the record that such title, right, privilege or immunity was " specially set up or claimed at the proper time, in the proper way.

An action of trespass on the case for damages by fire to the plaintiff's vessel in a port of the United States, alleged to have resulted from the negligence of the defendant's servants in cutting a burning scow or lighter loose from a wharf, and allowing it to drift against the vessel, is "a common law remedy" which the common law is competent to give," and which is saved to suitors by the provisions of § 563, Rev. Stat. couferring admiralty and maritime jurisdiction upon District Courts of the United States.

Opinion of the Court.

MOTION TO DISMISS OR AFFIRM. The case is stated in the opinion of the court.

Mr. William A. Hammond and Mr. B. Howard Haman for the motion.

Mr. William A. Fisher opposing.

MR. CHIEF JUSTICE FULLER delivered the opinion of the court.

Bradshaw recovered judgment December 6th, 1887, against, Chappell in the Circuit Court for Howard County, Maryland, in an action of trespass on the case, after a trial by jury upon a plea of not guilty, for damages by fire to his (Bradshaw's). schooner, alleged to have resulted from the negligence of Chappell's servants in cutting a burning scow or lighter loose from Chappell's wharf and allowing it to drift against Bradshaw's vessel. From this judgment Chappell prosecuted an appeal to the Court of Appeals of Maryland, by which tribunal the judgment was affirmed on the 14th day of March, 1888.

On the 27th of March Chappell moved for a rehearing upon the ground, which had not been up to that time presented in any form, that the Circuit Court for Howard County should have limited the measure of damages to the value of the scow which occasioned the injury complained of, under the provisions of § 18, c. 121 of the act of Congress of June 26, 1884. 23 Stat. 57. The Court of Appeals overruled the motion, because, as the court states, "this act of Congress was not before the Circuit Court when the case was tried, nor before this court on appeal, and that no reference to it or construction of it was made in either court."

After an unsuccessful application therefor to the Chief Judge of the Court of Appeals a writ of error was finally allowed by one of the justices of this court, and now comes before us upon a motion to dismiss.

To give this court jurisdiction to review the judgment of a state court under § 709 of the Revised Statutes, because of the denial by a state court of any title, right, privilege, or

Opinion of the Court.

immunity claimed under the Constitution or any treaty or statute of the United States, it must appear on the record that such title, right, privilege, or immunity was "specially set up or claimed" at the proper time in the proper way. "To be reviewable here," says Waite, C. J., in Spies v. Illinois, 123 U. S. 131, 181, "the decision must be against the right so set up or claimed. As the Supreme Court of the State was reviewing the decision of the trial court, it must appear that the claim was made in that court, because the Supreme Court was only authorized to review the judgment for errors committed there, and we can do no more." Tested by this well settled rule it is apparent that this writ of error cannot be maintained, as it is conceded that the plaintiff in error did not set up or claim in the trial court the limitation, the benefit of which he now insists should have been accorded him.

As to the contention of plaintiff in error, also not brought forward below but suggested for the first time when application was made to the Chief Judge of the Court of Appeals to allow the writ of error, that the state court had no jurisdiction because the jurisdiction of the courts of the United States is exclusive in all cases of admiralty and maritime jurisdiction, and that this is necessarily such a case, it is sufficient to say that, as the action as brought and defended was a common law action without any of the ingredients of an admiralty or maritime cause, it was, as such, clearly within the provision of the ninth section of the Judiciary Act of 1789, as embodied in § 563 of the Revised Statutes, "saving to suitors in all cases the right of a common law remedy where the common law is competent to give it."

The motion must be granted and the writ dismissed, and it is so ordered.

Statement of the Case.

CULLIFORD v. GOMILA.

APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF LOUISIANA.

No. 33. Argued October 18, 19, 1888.- Decided October 29, 1888.

A charter-party, containing a guaranty by the owner of the vessel that she should carry not less than 10,000 quarters of grain, of 480 pounds, held to have been complied with by the owner of the vessel. The charter-party not having contained any cancelling clause, or any provision as to any time for beginning or completing the lading, or shipping the grain, the charterer could not have, in a suit against the owner of the vessel for a breach of the charter-party, the benefit of any clause limiting the time of the shipment of the grain, contained in a prior contract for its sale, made by the charterer, where such contract had been made known to the owner of the vessel before the charter-party was signed.

The vessel having been loaded with less than 10,000 quarters, and appearing to be full, as she was then stowed, the parties negotiated for a settlement, but before any was concluded, the owner of the vessel notified the charterer that the stowage would be rearranged so that the vessel would on the next day be ready to take the full 10,000 quarters. The charterer on the latter day sold the cargo at auction, on board, with privilege of the charter. The vessel afterwards took on board enough more grain to make the full 10,000 quarters and delivered it under a charter for the same voyage, made with the vendee named in the contract of sale of the grain made by the first charterer: Held, that the owner of the vessel was not liable to the first charterer for any losses sustained by him by the failure of such vendee to pay for the grain under such contract of sale. The charter-party with the first charterer was complied with by the owner of the vessel in a reasonable time.

THIS was a libel in admiralty, in personam, filed in the District Court of the United States for the Eastern District of Louisiana, on the 9th of July, 1883, by A. J. Gomila and Learned Torrey, composing the firm of Gomila & Co., against J. H. W. Culliford and John S. Clark, composing the firm of Culliford & Clark, as owners of the steamship Deronda, a British vessel, to recover damages for the alleged breach of a