in interstate commerce,-and doth so decide and declare. Therefore it seems to the court here that the finding of the state corporation commission appealed from is without error, and said finding is approved and affirmed. It is further considered by the court that the appellee recover against the appellant thirty dollars damages and its costs by it about its defense expended upon this appeal."

To review this order the Old Dominion Steamship Company sued out this writ of

error.

Mr. William H. White for plaintiff in

error.

Mr. William A. Anderson for defendant in error.

Mr. Justice Brewer delivered the opin

ion of the court:

The facts being settled, the only question is one of law. Can Virginia legally subject these vessels to state taxation? The general rule is that tangible personal property is subject to taxation by the state in which it is, no matter where the domicil of the owner may be. This rule is not affected by the fact that the property is employed in interstate transportation. Pullman's Palace Car Co. v. Pennsylvania, 141 U. S. 18, 35 L. ed. 613, 3 Inters. Com. Rep. 595, 11 Sup. Ct. Rep. 876, in which Mr. Justice Gray, speaking for the court, said (p. 23, L. ed. p. 616, Inters. Com. Rep. p. 599, Sup. Ct. Rep. p. 878):

"It is equally well settled that there is nothing in the Constitution or laws of the United States which prevents a state from taxing personal property, employed in interstate or foreign commerce, like other personal property within its jurisdiction."

See also Cleveland, C. C. & St. L. R. Co. v. Backus, 154 U. S. 439-445, 38 L. ed. 1041, 1046, 4 Inters. Com. Rep. 677, 14 Sup. Ct. Rep. 1122; Western U. Teleg. Co. v. Taggart, 163 U. S. 1-14, 41 L. ed. 49-54, 16 Sup. Ct. Rep. 1054.

This is true as to water as well as to land transportation. In Gloucester Ferry Co. v. Pennsylvania, 114 U. S. 196, 217, 29 L. ed. 158, 166, 1 Inters. Com. Rep. 382, 390, 5 Sup. Ct. Rep. 826, 835, Mr. Justice Field, in delivering the opinion of the court, after referring to certain impositions upon interstate commerce, added:

"Freedom from such impositions does not, of course, imply exemption from reasonable charges, as compensation for the carriage of persons, in the way of tolls or fares, or from the ordinary taxation to which other property is subjected, any more than like freedom of transportation on land implies such exemption."

See also Passenger Cases, 7 How. 283, 12 L. ed. 702, in which Mr. Justice McLean said (p. 402, L. ed. p. 752):

"A state cannot regulate foreign commerce, but it may do many things which more or less affect it. It may tax a ship or other vessel used in commerce, the same as other property owned by its citizens."

The same doctrine is laid down in the same case by Mr. Chief Justice Taney (p. 479, L. ed. p. 784). See also Wheeling, P. & C. Transp. Co. v. Wheeling, 99 U. S. 273, 25 L. ed. 412. That the service in which these vessels were engaged formed one link in a line of continuous interstate commerce may affect the state's power of regulation, but not its power of taxation. True, they were not engaged in an independent service, as the cabs in New York ex rel. Pennsylvania R. Co. v. Knight, 192 U. S. 21, 48 L. ed. 325, 24 Sup. Ct. Rep. 202, but, being wholly within the state, that was their actual situs. And, as appears from the authorities referred to, the fact that they were engaged in interstate commerce does not impair the state's authority to impose taxes upon them as property. Indeed, it is not contended that these vessels, although engaged in interstate commerce, are not subject to state taxation, the contention being that they are taxable only at the port at which they are enrolled. In support of this contention the two principal cases relied upon are Hays v. Pacific Mail S. S. Co. 17 How. 596, 15 L. ed. 254, and Morgan v. Parham, 16 Wall. 471, 21 L. ed. 303.

Registry and enrollment are prescribed by Rev. Stat. §§ 4141 and 4311, U. S. Comp. Stat. 1901, pp. 2808 and 2959, for vessels of the United States engaged in foreign and domestic commerce. Section 4141 reads:

"Sec. 4141. Every vessel, except as is hereinafter provided, shall be registered by the collector of that collection district which includes the port to which such vessel shall belong at the time of her registry; which port shall be deemed to be that at or nearest to which the owner, if there be but one, or, if more than one, the husband or acting and managing owner of such vessel, usually resides."

By sections 4131 and 4311 (U. S. Comp. Stat. 1901, pp. 2803 and 2959) vessels registered or enrolled are declared to be deemed vessels of the United States. As stated by Chancellor Kent, in his Commentaries, vol. 3, p. *139:

"The object of the registry acts is to encourage our own trade, navigation, and shipbuilding, by granting peculiar or exclusive privileges of trade to the flag of the United States, and by prohibiting the communication of those immunities to the shipping and mariners of other countries. These provi

sions are well calculated to prevent the commission of fraud upon individuals, as well as to advance the national policy. The registry of all vessels at the custom house, and the memorandums of the transfers, add great security to title, and bring the existing state of our navigation and marine under the view of the general government. By these regulations the title can be effectually traced back to its origin."

This object does not require, and there is no suggestion in the statutes, that vessels registered or enrolled are exempt from the ordinary rules respecting taxation of personal property. It is true by § 4141 there is created what may be called the home port of the vessel, an artificial situs, which may control the place of taxation in the absence of an actual situs elsewhere, and to that extent only do the two cases referred to go.

In Hays v. Pacific Mail S. S. Co. 17 How. 596, 15 L. ed. 254, ocean steamers owned and registered in New York, and regularly plying between Panama and San Francisco and ports in Oregon, remaining in San Francisco no longer than was necessary to land and receive passengers and cargo and in Benicia only for repairs and supplies, were held not subject to taxation by the state of California. In the course of the opinion, by Mr. Justice Nelson, it was said (p. 599, L. ed. p. 255):

"We are satisfied that the state of California had no jurisdiction over these vessels for the purpose of taxation; they were not properly abiding within its limits so as to become incorporated with the other personal property of the state; they were there but temporarily, engaged in lawful trade and commerce, with their situs at the home port, where the vessels belonged, and where the owners were liable to be taxed for the capital invested, and where the taxes had been paid."

Clearly the ruling was that these steamers had acquired no actual situs within the state of California; that occasionally touching at ports in the state did not make them incorporated with the other personal property of the state. Hence, having no situs in California, they were not subject to taxation there, but were subject to state taxation at the artificial situs established by their registry.

In Morgan v. Parham, 16 Wall. 471, 21 L. ed. 303, it appeared that a steamship was registered in New York, under the ownership of the plaintiff; that she was employed as a coasting steamer between Mobile and New Orleans; that she was regularly enrolled as a coaster in Mobile by her master, and received a license as a coasting vessel for that and subsequent years. It was held 25 S. C.-44.

that she was not subject to taxation by the state of Alabama. Mr. Justice Hunt, in delivering the opinion of the court, said (pp. 474, 476, L. ed. p. 304):

"The fact that the vessel was physically within the limits of the city of Mobile, at the time the tax was levied, does not decide the question. Thus, if a traveler on that day had been passing through that city in his private carriage, or an emigrant with his worldly goods on a wagon, it is not contended that the property of either of these persons would be subject to taxation, as property within the city. It is conceded by the respective counsel that it would not have been.

"On the other hand this vessel although a vehicle of commerce, was not exempt from taxation on that score. A steamboat, or a post coach, engaged in a local business within a state, may be subject to local taxation, although it carry the mail of the United States. The commerce between the states may not be interfered with by taxation or other interruption, but its instruments and vehicles may be. It is the opinion of the court that the state of Alabama had no jurisdiction over this vessel for the purpose of taxation, for the reason that it had not become incorporated into the personal property of that state, but was there temporarily only.”

In other words, here, as in the prior case, there was no actual situs of the vessel. She had not become commingled with the general property of the state, and was therefore subject to taxation at the artificial situs,-the port of her registry.

In Wheeling, P. & C. Transp. Co. v. Wheeling, 99 U. S. 273, 25 L. ed. 412, Mr. Justice Clifford concludes his discussion with this statement (p. 285, L. ed. p. 416):

"From which it follows, as a necessary consequence, that the enrolment of a ship or vessel does not exempt the owner of the same from taxation for his interest in the ship or vessel as property, upon a valuation of the same, as in the case of other personal property."

Of course, if the enrolment does not exempt vessels from taxation as other personal property, the place of enrolment, whether within or without the state in which the property is actually situated, is immaterial, for other like property is taxable at its actual situs.

So far as the state authorities are concerned, reference may be made to Lott v. Mobile Trade Co. 43 Ala. 578; National Dredging Co. v. State, 99 Ala. 462, 12 So. 720; Northwestern Lumber Co. v. Chehalis County, 25 Wash. 95, 54 L. R. A. 212, 87 Am. St. Rep. 747, 64 Pac. 909.

Our conclusion is that where vessels,

The trial court refused a preliminary injunction, and its decree was affirmed by the supreme court (112 Ga. 164, 37 S. E. 393), which decided that this was a business tax, lawfully imposed, and that the plaintiff did not stand like the Central of Georgia Railway, which, as was held in Augusta v. Central R. Co. 78 Ga. 119, is subject to taxation by the state alone. On final hearing a verdict was directed for the defendant, and a decree was entered making the same the decree of the court. This also was affirmed by the supreme court. 115 Ga. 137, 41 S. E. 592.

The case then was brought here. The merits of the case are pretty nearly disposed of by the statement. The argument on the first point is really a somewhat disguised attempt to go behind the decision of the state court that the tax is a tax on business, and to make out that it is a charge for the privilege of using the streets. We see no ground on which we should criticize or refuse to be bound by the local adjudication. The difference between the two railroads is obvious, and warrants the diversity in the mode of taxation. The Central of Georgia Railway may be assumed to do the great and characteristic part of its work outside the city, while the plaintiff does its work within the city. If the former escapes city taxation, it does so only because its main business is not in the city, and the states reserves it for itself.

As to the contract, if the city had attempted to bargain away its right to tax, probably it would have been acting beyond its power. Augusta Factory v. Augusta, 83 Ga. 734, 743, 10 S. E. 359. However, it made no such attempt. It is enough to say that it uses no language to that effect, or words which even indirectly imply that exemption for the future was contemplated. Wells v. Savannah, 181 U. S. 531, 539, 540, 45 L. ed. 986, 21 Sup. Ct. Rep. 697, 107 Ga. 1, 32 S. E. 669; New Orleans City & Lake R. Co. v. New Orleans, 143 U. S. 192, 36 L. ed. 121, 12 Sup. Ct. Rep. 406. But we will go a little more into detail.

the contract an extension is agreed to, "and the right to lay down, construct, maintain, and operate said railway through said streets, as before stated, is granted, subject to the control and regulation of the said mayor and aldermen, the same as other lines of railway, as provided in said contract of November 4th, 1897." It is said that these phrases exempt at least so much of the road as they cover, and that therefore the tax is void as a whole, because it does not appear what proportion of it is attributable to unexempted portions.

This kind of argument seems to assume that the tax is a tax on the right to use the streets, and not a tax on the business. But a sufficient answer is that none of the expressions quoted import any exemption from taxation whatever, if it was within the power of the city to grant it. See New Orleans City & Lake R. Co. v. New Orleans, 143 U. S. 192, 36 L. ed. 121, 12 Sup. Ct. Rep. 406. We are of opinion that the plaintiff's case fails on every ground. Decree affirmed.

(198 U. S. 292)

EMPIRE STATE-IDAHO MINING & DE-
VELOPING COMPANY and the Ameri-
can Bonding
Bonding Company of Baltimore,
Appts.,

1.

v.

KENNEDY J. HANLEY.

Appeal from circuit court of appeals.

An allegation by a party claiming an in

terest in a mining claim by virtue of a purchase from an administrator under a decree of the probate court, that a subsequent decree of that court annulling the prior decree was invalid for want of jurisdiction to render it at a subsequent term, for want of notice and for lack of evidence, does not amount to an assertion that he was deprived of his interest by the court without due process of law, which would support the jurisdiction of a Federal circuit court irrespective of diversity of citizenship, and therefore permit an appeal to the Supreme Court from a decree of the circuit court of appeals in the cause. 2. Appellants cannot invoke the supposed presence of a constitutional question in a cause as the ground for sustaining an appeal from the United States circuit court of appeals, where, if any such question was disposed of by the decree, it was decided in their favor.

lars the railroad agreed to convey, or cause to be conveyed, certain lands in Bolton street and Whitaker street, "preserving, of

[No. 604.]

1905.

PPEAL from the United States Circuit.

affirmed a decree of the Circuit Court for the District of Idaho, granting a part of the relief sought by a bill in equity asserting ownership of certain interests in a mining claim. Dismissed for want of jurisdiction.

Statement by Mr. Chief Justice Fuller: Hanley brought this bill in equity in the circuit court of the United States for the district of Idaho, setting up diversity of citizenship as the ground of jurisdiction, and asserted ownership of an undivided oneeighth interest, and of an undivided onethird interest in the Skookum mining claim, Shoshone county, Idaho. As to the onethird interest, Hanley claimed under certain proceedings in the probate court of that county, which were, without notice to him, as he said, set aside, and the interest conveyed to the Chemung Company, and by the latter to the Empire State etc. Mining Company. Hanley's title to the one-eighth

interest was derived through mesne conveyances from the original grantee under a patent from the United States. This interest Hanley had conveyed to Sweeny and Clark by a deed deposited in the Exchange National Bank of Spokane, to be delivered on certain specified conditions, and he averred that Sweeny and Clark obtained possession of the deed wrongfully, and contrary to the escrow agreement, and afterwards made a pretended deed of the interest to the Empire State Company.

On hearing, the circuit court decreed against Hanley as to both interests. Hanley carried the case to the circuit court of appeals, which held that he was not entitled to relief as to the one-third interest, but that he was as to the one-eighth interest. The decree was therefore reversed and the cause remanded for further proceedings. 48 C. C. A. 612, 109 Fed. 712. The case went back and was referred to a master for an accounting as to the eighth interest, who reported a large amount of money as due to Hanley. The circuit court reduced the amount by deducting the cost of working the property while Hanley was excluded from the mine, and entered a decree quieting Hanley's title to the one-eighth interest, and giving him judgment against the Empire State Company for the last-named amount. Defendant appealed from this decree, and filed a supersedeas bond with the American Bonding Company of Baltimore as surety, and Hanley prosecuted a cross appeal, questioning the deduction. The circuit court of appeals sustained the cross appeal, and held that the circuit court erred in allowing defendants their working costs. 61 C. C. A. 153, 126 Fed. 97. The case was remanded with directions to modify the decree. This

was done and recovery of the original amount decreed, and also recovery on the bond of the amount it was given to secure, and another appeal was taken by the companies to the court of appeals, which af firmed the decree. The pending appeal having been subsequently allowed, was submitted on motion to dismiss.

Messrs. George Turner, W. B. Heyburn, and F. T. Post for appellants. Mr. M. A. Folsom for appellee.

Mr. Chief Justice Fuller delivered the opinion of the court:

We are of opinion that the jurisdiction of the circuit court was dependent entirely upon diversity of citizenship, and that this appeal must be dismissed. Appellants' contention is that the allegations of Hanley's complaint as amounted to the assertion that he had been deprived of that interest by the probate

to the one-third interest

court without due process of law, and were sufficient to support the jurisdiction of the circuit court on this ground, irrespective of diversity of citizenship. We do not so regard the allegations. What Hanley asserted was that his title to the third interest was good because he had purchased it from the administrator under the decree of the probate court, and that the subsequent decree of that court, annulling the prior decree, was invalid for want of jurisdiction to render it at a subsequent term, for want of notice and for lack of evidence.

Granting that the 14th Amendment applies to the action of the courts as well as of the legislative and executive authorities of the states, the averments of the complaint did not suggest that the courts of Idaho would hold the later proceedings of the probate court, if attacked by Hanley directly, effectual to overthrow his purchase; or charge that in such action as had been

taken they had committed error so gross as to amount in law to a denial by the state of due process of law. Hanley's contention was in effect that the later proceedings were void for lack of jurisdiction, and he did not pretend that he could not have obtained redress by direct suit in the state courts.

The Constitution and laws of the United

States were not mentioned in the complaint, nor any dispute or controversy raised as to the effect or construction of the Constitution or laws on the determination of which the result depended; nor was any title, right, privilege, or immunity specially set up or claimed under Constitution or law.

If this had been a writ of error to a