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in interstate commerce,—and doth so de- See also Passenger Cases, 7 How. 283, 12 cide and declare. Therefore it seems to the L. ed. 702, in which Mr. Justice McLean court here that the finding of the state cor. said (p. 402, L. ed. p. 752): poration commission appealed from is with- "A state cannot regulate foreign comout error, and said finding is approved and merce, but it may do many things which affirmed. It is further considered by the more or less affect it. It

more or less affect it. It may tax a ship or court that the appellee recover against the other vessel used in commerce, the same as appellant thirty dollars damages and its other property owned by its citizens.” costs by it about its defense expended upon The same doctrine is laid down in the this appeal.”

same case by Mr. Chief Justice Taney (p. To review this order the Old Dominion 479, L. ed. p. 784). See also Wheeling, P. Steamship Company sued out this writ of & C. Transp. Co. v. Wheeling, 99 U. S. 273, error.

25 L. ed. 412. That the service in which

these vessels were engaged formed one link Mr. William H. White for plaintiff in in a line of continuous interstate commerce error.

may affect the state's power of regulation, Mr. William A. Anderson for defend- but not its power of taxation. True, they ant in error.

were not engaged in an independent service,

as the cabs in New York es rel. PennsylMr. Justice Brewer delivered the opin- vania R. Co. v. Knight, 192 U. S. 21, 48 ion of the court:

L. ed. 325, 24 Sup. Ct. Rep. 202, but, beThe facts being settled, the only question ing wholly within the state, that was their is one of law. Can Virginia legally sub- actual situs. And, as appears from the auject these vessels to state taxation? The thorities referred to, the fact that they were general rule is that tangible personal prop- engaged in interstate commerce does not imerty is subject to taxation by the state in pair the state's authority to impose taxes which it is, no matter where the domicil upon them as property. Indeed, it is not of the owner may be. This rule is not af-contended that these vessels, although enfected by the fact that the property is em-gaged in interstate commerce, are not subployed in interstate transportation. Pull-ject to state taxation, the contention being man's Palace Car Co. v. Pennsylvania, 141 that they are taxable only at the port at U. S. 18, 35 L. ed. 613, 3 Inters. Com. Rep. which they are enrolled. In support of 595, 11 Sup. Ct. Rep. 876, in which Mr. Jus- this contention the two principal cases retice Gray, speaking for the court, said (p. lied upon are Hays v. Pacific Mail 8. S. Co. 23, L. ed. p. 616, Inters. Com. Rep. p. 599, 17 How. 596, 15 L. ed. 254, and Morgan v. Sup. Ct. Rep. p. 878):

Parham, 16 Wall. 471, 21 L. ed. 303. “It is equally well settled that there is Registry and enrollment are prescribed by nothing in the Constitution or laws of the Rev. Stat. $$ 4141 and 4311, U. S. Comp. United States which prevents a state from Stat. 1901, pp. 2808 and 2959, for vessels taxing personal property, employed in in- of the United States engaged in foreign and

Section 4141 reads: terstate or foreign commerce, like other per- domestic commerce. sonal property within its jurisdiction.”

“Sec. 4141. Every vessel, except as is See also Cleveland, C. C. & St. L. R. Co. v. hereinafter provided, shall be registered by Backus, 154 U. S. 439-445, 38 L. ed. 1041, the collector of that collection district which 1046, 4 Inters. Com. Rep. 677, 14 Sup. Ct. includes the port to which such vessel shall Rep. 1122; Western U. Teleg. Co. v. Tag- belong at the time of her registry; which gart, 163 U. S. 1-14, 41 L. ed. 49–54, 16 port shall be deemed to be that at or nearSup. Ct. Rep. 1054.

est to which the owner, if there be but one, This is true as to water as well as to land or, if more than one, the husband or acttransportation. In Gloucester Ferry Co. v. ing and managing owner of such vessel, Pennsylvania, 114 U. S. 196, 217, 29 L. ed. usually resides." 158, 166, 1 Inters. Com. Rep. 382, 390, 5 By sections 4131 and 4311 (U. S. Comp. Sup. Ct. Rep. 826, 835, Mr. Justice Field, Stat. 1901, pp. 2803 and 2959) vessels regin delivering the opinion of the court, after istered or enrolled are declared to be deemed referring to certain impositions upon in- vessels of the United States. As stated by terstate commerce, added :

Chancellor Kent, in his Commentaries, vol. "Freedom from such impositions does not, 3, p. *139: of course, imply exemption from reasonable “The object of the registry acts is to encharges, as compensation for the carriage of courage our own trade, navigation, and shippersons, in the way of tolls or fares, or from building, by granting peculiar or exclusive the ordinary taxation to which other prop- privileges of trade to the flag of the United erty is subjected, any more than like free States, and by prohibiting the communicadom of transportation on land implies such tion of those immunities to the shipping and exemption.”

mariners of other countries. These provi

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sions are well calculated to prevent the that she was not subject to taxation by the commission of fraud upon individuals, as state of Alabama. Mr. Justice Hunt, in well as to advance the national policy. The delivering the opinion of the court, said registry of all vessels at the custom house, (pp. 474, 476, L. ed. p. 304): and the memorandums of the transfers, add “The fact that the vessel was physically great security to title, and bring the ex- within the limits of the city of Mobile, at isting state of our navigation and marine the time the tax was levied, does not deunder the view of the general government. cide the question. Thus, if a traveler on By these regulations the title can be effect that day had been passing through that city ually traced back to its origin.”

in his private carriage, or an emigrant with This object does not require, and there is his worldly goods on a wagon, it is not conno suggestion in the statutes, that vessels tended that the property of either of these registered or enrolled are exempt from the persons would be subject to taxation, as ordinary rules respecting taxation of per- property within the city. It is conceded by sonal property. It is true by $ 4141 there the respective counsel that it would not have is created what may be called the home been. port of the vessel, an artificial situs, which "On the other hand this vessel although a may control the place of taxation in the vehicle of commerce, was not exempt from absence of an actual situs elsewhere, and taxation on that score. A steamboat, or a to that extent only do the two cases re- post coach, engaged in a local business withferred to go.

in a state, may be subject to local taxation, In Hays v. Pacific Mail $. 8. Co. 17 How. although it carry the mail of the United 596, 15 L. ed. 254, ocean steamers owned States. The commerce between the states and registered in New York, and regularly may not be interfered with by taxation or plying between Panama and San Francisco other interruption, but its instruments and and ports in Oregon, remaining in San vehicles may be.

It is the opinion Francisco no longer than was necessary to of the court that the state of Alabama had land and receive passengers and cargo and no jurisdiction over this vessel for the purin Benicia only for repairs and supplies, pose of taxation, for the reason that it had were held not subject to taxation by the not become incorporated into the personal state of California. In the course of the property of that state, but was there tempoopinion, by Mr. Justice Nelson, it was said rarily only.” (p. 599, L. ed. p. 255):

In other words, here, as in the prior “We are satisfied that the state of Cali- case, there was no actual situs of the vesfornia had no jurisdiction over these ves

sel. She had not become commingled with sels for the purpose of taxation; they were the general property of the state, and was not properly abiding within its limits so therefore subject to taxation at the artificial as to become incorporated with the other situs,—the port of her registry. personal property of the state; they were In Wheeling, P. & C. Transp. Co. v. there but temporarily, engaged in lawful Wheeling, 99 U. S. 273, 25 L. ed. 412, Mr. trade and commerce, with their situs at Justice Clifford concludes his discussion the home port, where the vessels belonged, with this statement (p. 285, L. ed. p. 416): and where the owners were liable to be "From which it follows, as, a necessary taxed for the capital invested, and where consequence, that the enrolment of a ship the taxes had been paid.”

or vessel does not exempt the owner of the Clearly the ruling was that these steam- same from taxation for his interest in the ers had acquired no actual situs within the ship or vessel as property, upon a valuation state of California; that occasionally touch of the same, as in the case of other personal ing at ports in the state did not make them property.” incorporated with the other personal prop- of course, if the enrolment does not exerty of the state. Hence, having no situs in empt vessels from taxation as other perCalifornia, they were not subject to taxa- sonal property, the place of enrolment, tion there, but were subject to state taxa- whether within or without the state in tion at the artificial situs established by which the property is actually situated, is their registry.

immaterial, for other like property is taxIn Morgan v. Parham, 16 Wall. 471, 21 L. able at its actual situs. ed. 303, it appeared that a steamship was So far as the state authorities are conregistered in New York, under the owner- cerned, reference may be made to Lott v. ship of the plaintiff; that she was employed Mobile Trade Co. 43 Ala. 578; National as a coasting steamer between Mobile and Dredging Co. v. State, 99 Ala. 462, 12 So. New Orleans; that she was regularly en- 720; Northwestern Lumber Co. v. Chehalis rolled as a coaster in Mobile by her master, County, 25 Wash. 95, 54 L. R. A. 212, 87 and received a license as a coasting vessel Am. St. Rep. 747, 64 Pac. 909. for that and subsequent years. It was held Our conclusion is that where vessels,

25 S. C. 44.

1

V.

though engaged in interstate commerce, are bill sets forth, among other grounds, that employed in such commerce wholly within the tax impairs the obligation of a contract, the limits of a state, they are subject to and also is an attempt to take the plaintaxation in that state, although they may tiff's property without due process of law, have been registered or enrolled at a port contrary to the Constitution of the United outside its limits. The conclusion, there- States. According to the bill and the fifth fore, reached by the Court of Appeals of assignment of error there is no law of the Virginia was right, and its judgment is af- state of Georgia which authorizes the imfirmed.

position of the tax. Were this true, the

foundation of our jurisdiction would be (19S U. S. 392)

gone, and this writ of error should be disSAVANNAH, THUNDERBOLT, & ISLE missed. See Barney v. New York, 193 U. S.

OF HOPE RAILWAY OF SAVANNAH, 430, 48 L. ed. 737, 24 Sup. Ct. Rep. 502. GEORGIA, Plff. in Err.,

But although the plaintiff has taken incon

sistent positions, and has confused questions MAYOR AND ALDERMEN OF THE CITY for the state court alone with those which OF SAVANNAH.

may be brought here, still, since it has

shown a clear intent to raise the Federal l'axation of street railways---equal protec- question from the beginning, since the bill, tion of the laws-contracts_impairment in another place, alleges that the tax is an of obligation.

authority exercised under the state of Geor

gia, and other assignments of error present 1. A street railway company is not denied the the points, and since the state court has de

equal protection of the laws by a municipal cided that the tax was authorized, we shall tax on its business at a rate of $100 per mile or fraction of a mile of its trackage in the not stop the case at the outset. See Hamilcity streets because a steam railway, making ton Gaslight & Coke Co. v. Hamilton, 146 an extra charge for local deliveries of freight U. S. 258, 36 L. ed. 963, 13 Sup. Ct. Rep. brought over its road from outside the city, 90.

is not subjected to this tax. 2. No exemption from the municipal taxation March 22, 1899, providing, by way of amend

The tax imposed under an ordinance of of the business of a street railway company results from provisions in its agreement with ment to one of the year before, that "street the municipality preserving its easements for railway companies, whether under the conrailway purposes in land to be conveyed by trol of another company or not, in lieu of it to the city, and granting it the right to the specific tax heretofore required, shall lay down, construct, maintain, and operate its railway through certain streets, subject to pay to the city of Savannah, for the privithe control and regulation of the mayor and lege of doing business in the city, and for aldermen.

the use of the streets of the city, at the

rate of $100 per mile or fraction of a mile [No. 238.]

of track used in the city of Savannah by

said railroad company.” The plaintiff is a Argued April 28, May 1, 1905. Decided May street railroad company, commonly known 15, 1905.

as such, and the great part of its business

and revenue is due to the use of the streets N ERROR to the Supreme Court of the of Savannah by its electric passenger street State of Georgia to review a judgment the Central of Georgia Railway Company, a

One of its grounds of attack is that which affirmed a judgment of the Superior steam railway, is not subjected to the tax, Court of Chatham County, in that state, entered on a verdict of the jury in favor of and yet that it also does business in the defendant in a suit to restrain the collection streets of the city by transporting freights of a municipal tax upon the business of a

from its regular station to various side street railway company. Affirmed.

tracks, and charges an additional or local See same case below, 115 Ga. 137, 41 S. price. The plaintiff contends that a clasE. 592.

sification which distinguishes between an The facts are stated in the opinion.

ordinary street railway and a steam railMessrs. David C. Barrow and George road making an extra charge for local deA. King for plaintiff in error.

liveries of freight brought over its road from Mr. William Garrard for defendant in outside the city is contrary to the 14th error.

Amendment, and void.

The other ground on which the validity Mr. Justice Holmes delivered the opin- of the tax is denied is a contract made beion of the court:

tween the plaintiff and respondent on NoThis is a bill in equity, brought by the vember 4, 1897, amended in April 1898, and plaintiff in error to restrain the collection on July 27, 1898. It is contended that this of a municipal tax by the defendants. The contract implies that the plaintiff is to have

cars.

the use of the streets without further way purposes.' In the last amendment to charges than those which it imposes. the contract an extension is agreed to, “and

The trial court refused a preliminary in the right to lay down, construct, maintain, junction, and its decree was affirmed by the and operate said railway through said supreme court (112 Ga. 164, 37 S. E. 393), streets, as before stated, is granted, subject which decided that this was a business tax, to the control and regulation of the said lawfully imposed, and that the plaintiff did mayor and aldermen, the same as other lines not stand like the Central of Georgia Rail- of railway, as provided in said contract of way, which, as was held in Augusta v. Cen- November 4th, 1897.” It is said that these tral R. Co. 78 Ga. 119, is subject to taxation phrases exempt at least so much of the road by the state alone. On final hearing a ver- as they cover, and that therefore the tax dict was directed for the defendant, and a is void as a whole, because it does not ap. decree was entered making the same the de- pear what proportion of it is attributable to

cree of the court. This also was affirmed by unexempted portions. the supreme court. 115 Ga. 137, 41 S. E. This kind of argument seems to assume 592. The case then was brought here. that the tax is a tax on the right to use

The merits of the case are pretty nearly the streets, and not a tax on the business. disposed of by the statement. The argu-But a sufficient answer is that none of the ment on the first point is really a somewhat expressions quoted import any exemption disguised attempt to go behind the decision from taxation whatever, if it was within the of the state court that the tax is a tax on power of the city to grant it. See New Orbusiness, and to make out that it is a leans City & Lake R. Co. v. New Orleans, charge for the privilege of using the streets. 143 U. S. 192, 36 L. ed. 121, 12 Sup. Ct. We see no ground on which we should criti. Rep. 406. We are of opinion that the plaincize or refuse to be bound by the local ad- tiff's case fails on every ground. judication. The difference between the two Decree affirmed. railroads is obvious, and warrants the diversity in the mode of taxation. The Cen

(198 T. S. 292) tral of Georgia Railway may be assumed to do the great and characteristic part of its EMPIRE STATE-IDAHO MINING & DE

VELOPING COMPANY and the Ameriwork outside the city, while the plaintiff does its work within the city. If the for

can Bonding Company of Baltimore, mer escapes city taxation, it does so only

Appts., because its main business is not in the city,

V. and the states reserves it for tself.

KENNEDY J. HANLEY. As to the contract, if the city had attempted to bargain away its right to tax, Appeal from circuit court of appeals. probably it would have been acting beyond its power. Augusta Factory v. Augusta, 83 1. An allegation by a party claiming an in

terest in a mining claim by virtue of a purGa. 734, 743, 10 S. E. 359. However, it

chase from an administrator under a decreemade no such attempt. It is enough to say of the probate court, that a subsequent decree that it uses no language to that effect, or of that court annulling the prior decree was words which even indirectly imply that ex

invalid for want of jurisdiction to render it emption for the future was contemplated.

at a subsequent term, for want of notice and

for lack of evidence, does not amount to an Wells v. Savannah, 181 U. S. 531, 539, 540,

assertion that he was deprived of his in45 L. ed. 986, 21 Sup. Ct. Rep. 697, 107 Ga. terest by the court without due process of law, 1, 32 S. E. 669; New Orleans City & Lake which would support the jurisdiction of a R. Co. v. New Orleans, 143 U. S. 192, 36 L. Federal circuit court irrespective of diversity

of citizenship, and therefore permit an aped. 121, 12 Sup. Ct. Rep. 406. But we will

peal to the Supreme Court from a decree of go a little more into detail.

the circuit court of appeals in the cause. The contract was made on a petition of 2. Appellants cannot invoke the supposed presthe plaintiff stating its desire to make

ence of a constitutional question in a cause as changes in its line of track "for the purpose the ground for sustaining an appeal from the of operating its railroad more economical

United States circuit court of appeals, where,

if any such question was disposed of by the ly and to better advantage, and at the same

decree, it was decided in their favor. time affording more adequate facilities to the public.” Various changes were agreed

[No. 604.] on in the way of moving old tracks and laying down new ones. Among other particu- Submitted May 1, 1905. Decided May 15, lars the railroad agreed to convey, or cause

1905. to be conveyed, certain lands in Bolton street",

. , of the way company over said land for its rail-' to review a decree which, on a third appeal,

con

affirmed a decree of the Circuit Court for was done and recovery of the original the District of Idaho, granting a part of amount decreed, and also recovery on the the relief sought by a bill in equity assert- bond of the amount it was given to secure, ing ownership of certain interests in a min- and another appeal was taken by the coming claim. Dismissed for want of jurisdic-panies to the court of appeals, which aftion.

firmed the decree. The pending appeal have

ing been subsequently allowed, was submitStatement by Mr. Chief Justice Fuller: ted on motion to dismiss.

Hanley brought this bill in equity in the circuit court of the United States for the Messrs. George Turner, W. B. Heydistrict of Idaho, setting up diversity of burn, and F. T. Post for appellants. citizenship as the ground of jurisdiction,

Mr. M. A. Folsom for appellee. and asserted ownership of an undivided oneeighth interest, and of an undivided one- Mr. Chief Justice Fuller delivered the third interest in the Skookum mining claim, opinion of the court: Shoshone county, Idaho. As to the one- We are of opinion that the jurisdiction third interest, Hanley claimed under cer- of the circuit court was dependent entirely tain proceedings in the probate court of | upon diversity of citizenship, and that this that county, which were, without notice to appeal must be dismissed. Appellants' conhim, as he said, set aside, and the interest tention is that the allegations of Hanley's conveyed to the Chemung Company, and by complaint as to the one-third interest the latter to the Empire State etc. Mining amounted to the assertion that he had been Company. Hanley's title to the one-eighth deprived of that interest by the probate interest was derived through mesne

court without due process of law, and were veyances from the original grantee under a patent from the United States. This inter- sufficient to support the jurisdiction of the est Hanley had conveyed to Sweeny and circuit court on this ground, irrespective of Clark by a deed deposited in the Exchange diversity of citizenship. We do not so reNational Bank of Spokane, to be delivered gard the allegations. What Hanley asserton certain specified conditions, and he ed was that his title to the third interest averred that Sweeny and Clark obtained was good because he had purchased it from possession of the deed wrongfully, and con- the administrator under the decree of the trary to the escrow agreement, and after- probate court, and that the subsequent dewards made a pretended deed of the inter- cree of that court, annulling the prior deest to the Empire State Company.

cree, was invalid for want of jurisdiction to On hearing the circuit court decreed render it at a subsequent term, for want of against Hanley as to both interests. Hanley notice and for lack of evidence. carried the case to the circuit court of ap- Granting that the 14th Amendment appeals, which held that he was not entitled to plies to the action of the courts as well as relief as to the one-third interest, but that of the legislative and executive authorities he was as to the one-eighth interest. The of the states, the averments of the comdecree was therefore reversed and the cause plaint did not suggest that the courts of remanded for further proceedings. 48 C. Idaho would hold the later proceedings of C. A. 612, 109 Fed. 712. The case went the probate court, if attacked by Hanley diback and was referred to a master for an rectly, effectual to overthrow his purchase; accounting as to the eighth interest, who

or charge that in such action as had been reported a large amount of money as due taken they had committed error so gross as to Hanley. The circuit court reduced the to amount in law to a denial by the state amount by deducting the cost of working the

Hanley's contenproperty while Hanley was excluded from of due process of law. the mine, and entered a decree quieting tion was in effect that the later proceedings Hanley's title to the one-eighth interest, and were void for lack of jurisdiction, and he giving him judgment against the Empire did not pretend that he could not have obState Company for the last-named amount. tained redress by direct suit in the state Defendant appealed from this decree, and courts. filed a supersedeas bond with the American

The Constitution and laws of the United Bonding Company of Baltimore as surety, States were not mentioned in the complaint, and Hanley prosecuted a cross appeal, ques- nor any dispute or controversy raised as to tioning the deduction. The circuit court of the effect or construction of the Constituappeals sustained the cross appeal, and held tion or laws on the determination of which that the circuit court erred in allowing de- the result depended; nor was any title, fendants their working costs. 61 C. C. A.

61 C. C. A. right, privilege, or immunity specially set 153, 126 Fed. 97. The case was remanded up or claimed under Constitution or law. with directions to modify the decree. This If this had been a writ of error to a

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