within the State of their origin, subject to its jurisdiction, and liable to taxation there, if not taxed by reason of their being intended for exportation, but taxed without discrimination, in the usual way and manner in which such property is taxed in the State. * * * *.

The application of these principles to the present case is obvious. The logs which were taxed, and the tax on which was not abated by the Supreme Court of New Hampshire, had not, when so taxed, been shipped or started on their final voyage or journey to the State of Maine. They had only been drawn down from Wentworth's location to Errol, the place from which they were to be transported to Lewiston in the State of Maine. There they were to remain until it should be convenient to send them to their destination. They come precisely within the character of property which, according to the principles herein laid down, is taxable. The judgment of the Supreme Court of New Hampshire is Affirmed.

THE DANIEL BALL.

10 WALLACE, 557. 1870.

An Act of Congress of July 7, 1838, provided that the owner, master or captain of any vessel propelled by steam transporting merchandise or passengers upon "the bays, lakes, rivers or other navigable waters of the United States" must obtain a license. A penalty was imposed for a failure to observe the statute. A later statute of August 30, 1852, provided for the inspection of such vessels. In March, 1868, the Daniel Ball, a vessel propelled by steam, was engaged in navigating the Grand River in the State of Michigan between the cities of Grand Rapids and Grand Haven, both of which were in the State of Michigan, and in the transportation of merchandise and passengers between those places, without having been licensed or inspected under the laws of the United States. An action was brought by the United States in the District Court for the Western District of Michigan to recover the penalty provided for failure to obtain such inspection and license. The government contended that the Grand River was a navigable water of the United States, and in addition that the steamer transported merchandise destined for ports and places outside the State of Michigan, and was thus engaged in commerce between the States. The owners of the vessel defended on the ground that the Grand River was not a navigable river, that the steamer was engaged solely in domestic commerce, and that she was not subject to the navigation laws of the United States.

The District Court dismissed the action. The Circuit Court reversed this decision, and gave a decree for the penalty demanded. From this decree the case was brought by appeal to the Supreme Court of the United States.

MR. JUSTICE FIELD delivered the opinion of the court:

Two questions are presented in this case for our determination. First. Whether the steamer was at the time designated in the libel engaged in transporting merchandise and passengers on a navigable water of the United States within the meaning of the acts of Congress; and,

Second. Whether those acts are applicable to a steamer engaged as a common carrier between places in the same State, when a portion of the merchandise transported by her is destined to places in other States, or comes from places without the State, she not running in connection with or in continuation of any line of steamers or other vessels, or any railway line leading to or from another State.

Upon the first of these questions we entertain no doubt. The doctrine of the common law as to the navigability of waters has no application in this country. Here the ebb and flow of the tide do not constitute the usual test, as in England, or any test at all of the navigability of waters. There no waters are navigable in fact, or at least to any considerable extent, which are not subject to the tide, and from this circumstance tide water and navigable water there signify substantially the same thing. But in this country the case is widely different. Some of our rivers are as navigable for many hundreds of miles above as they are below the limits of tide water, and some of them are navigable for great distances by large vessels, which are not even affected by the tide at any point during their entire length. A different test must, therefore, be applied to determine the navigability of our rivers, and that is found in their navigable capacity. Those rivers must be regarded as public navigable rivers in law which are navigable in fact. And they are navigable in fact when they are used, or are susceptible of being used, in their ordinary condition, as highways for commerce, over which trade and travel are or may be conducted in the customary modes of trade and travel on water. And they constitute navigable waters of the United States within the meaning of the acts of Congress, in contradistinction from the navigable waters of the States, when they form in their ordinary condition by themselves, or by uniting with other waters, a continued highway over which commerce is or may be carried on with other States or foreign countries in the customary modes in which such commerce is conducted by water.

If we apply this test to Grand River, the conclusion follows that it must be regarded as a navigable water of the United States. From the conceded facts in the case the stream is capable of bearing a steamer of one hundred and twenty-three tons burden, laden with merchandise and passengers, as far as Grand Rapids, a distance of forty miles from its mouth in Lake Michigan. And by its junction with the lake it forms a continued highway for commerce. both with other States and with foreign countries, and is thus brought

under the direct control of Congress in the exercise of its commercial power.

*

But it is contended that the steamer Daniel Ball was only engaged in the internal commerce of the State of Michigan, and was not, therefore, required to be inspected or licensed, even if it be conceded that Grand River is a navigable water of the United States; and this brings us to the consideration of the second question presented.

There is undoubtedly an internal commerce which is subject to the control of the States. The power delegated to Congress is limited to commerce "among the several States," or foreign nations and with the Indian tribes. This limitation necessarily excludes from Federal control all commerce not thus designated, and of course that commerce which is carried on entirely within the limits of a State, and does not extend to or affect other States. In this case it is admitted that the steamer was engaged in shipping and transporting down Grand River, goods destined and marked for other States than Michigan, and in receiving and transporting up the river goods brought within the State from without its limits; but inasmuch as her agency in the transportation was entirely within the limits of the State; and she did not run in connection with, or in continuation of, any line of vessels or railway leading to other States, it is contended that she was engaged entirely in domestic commerce. But this conclusion does not follow. So far as she was employed in transporting goods destined for other States, or goods brought from without the limits of Michigan and destined to places within that State, she was engaged in commerce between the States, and however limited that commerce may have been, she was, so far as it went, subject to the legislation of Congress. She was employed as an instrument of that commerce; for whenever a commodity has begun to move as an article of trade from one State to another, commerce in that commodity between the States has commenced. The fact that several different and independent agencies are employed in transporting the commodity, some acting entirely in one State, and some acting through two or more States, does in no respect affect the character of the transaction. To the extent in which each agency acts in that transportation, it is subject to the regulation of Congress.

It is said that if the position here asserted be sustained, there is no such thing as the domestic trade of a State; that Congress may take the entire control of the commerce of the country, and extend its regulations to the railroads within a State on which grain or fruit is transported to a distant market. We answer that the present case relates to transportation on the navigable waters of the United States, and we are not called upon to express an opinion upon the power of Congress over interstate commerce when carried on by land transportation.

Decree of the Circuit Court is

Affirmed.

GLOUCESTER FERRY COMPANY v. PENNSYLVANIA. 114 U. S., 196. 1885.

The Gloucester Ferry Company was incorporated in 1865 under the laws of the State of New Jersey to establish a steamboat ferry from the town of Gloucester, New Jersey, to the City of Philadelphia, Pennsylvania. It established and has maintained such a ferry, and has at the places named a slip or dock on which passengers and freight are received and landed. The dock in Philadelphia is leased. The one in Gloucester is owned by the company. A statute of Pennsylvania, passed June 7, 1879, provided in substance that any company or association incorporated in Pennsylvania or elsewhere and doing business within the State should pay annually a tax computed upon its capital stock according to the dividends declared. The Court of Common Pleas of Philadelphia held that the tax could not be lawfully levied upon the company, as the landing of passengers and freight was the only business carried on by the company in the State and was protected by the Constitution from State legislation as interstate commerce. The Supreme Court of Pennsylvania on appeal decided in favor of the tax, and to review this judgment an appeal was taken to the Supreme Court of the United States.

MR. JUSTICE FIELD delivered the opinion of the court.

** As to the first reason thus expressed, it may be answered that the business of landing and receiving passengers and freight at the wharf in Philadelphia is a necessary incident to, indeed, is a part of, their transportation across the Delaware River from New Jersey. Without it that transportation would be impossible. Transportation implies the taking up of persons or property at some point and putting them down at another. A tax, therefore, upon such receiving and landing of passengers and freight is a tax upon their transportation; that is, upon the commerce between the two States involved in such transportation. * * * * Commerce among the States consists of intercourse and traffic between their citizens, and includes the transportation of persons and property, and the navigation of public waters for that purpose, as well as the purchase, sale and exchange of commodities. The power to regulate that commerce, as well as commerce with foreign nations, vested in Congress, is the power to prescribe the rules by which it shall be governed, that is, the conditions upon which it shall be conducted; to determine when it shall be free and when subject to duties or other exactions.

Judgment of the Supreme Court of Pennsylvania is reversed.

Note.-In City of Sault Ste. Marie v. International Transit Company, 234 U. S. 333 (June 8th, 1914), the Supreme Court declared unconstitutional an ordinance of the City of Sault Ste. Marie, Michigan, requiring a license fee for the operation of ferries to the Canadian shore. The defendant company, a Canadian corporation, was the owner of and operated a steam ferry from

Sault Ste. Marie, Ontario, to Sault Ste. Marie, Michigan. It leased a private wharf in the Michigan city and maintained an office where fares were received. Under State authority, a license fee of fifty dollars was imposed by the ordinance for the privilege of carrying on such a ferry. The court held that the case came within the principle of Gloucester Ferry Company v. Pennsylvania, 114 U. S. 196, that one cannot be compelled to take out a local license for the mere privilege of carrying on interstate or foreign commerce.

4. Meaning of the Sherman Anti-Trust Law.

UNITED STATES v. TRANS-MISSOURI FREIGHT ASSOCIATION.

166 U. S. 290, 1897.

The United States Government brought suit in equity in the United States Circuit Court for the District of Kansas against the Trans-Missouri Freight Association, and the several railway companies composing the said association, for the purpose of having declared illegal and void a certain agreement entered into between the said railway companies for mutual protection, and to establish and maintain rates, rules and regulations on all freight traffic included within a defined territory. The United States asked that the said association of the railways be dissolved and a perpetual injunction be granted against any similar combination and association in the future of such constituent railways. The basis of the government's contention was that the agreement in question was contrary to the Sherman Anti-Trust Law,* as being in restraint of trade among the States. The lower court dismissed the government's suit. The case was carried on appeal to the Supreme Court.

Sections of the agreement are in part as follows:

That "a committee shall be appointed to establish rates, rules and regulations on the traffic subject of this association, and to consider changes therein, and make rules for meeting the competition of outside lines. Their conclusions, when unanimous, shall be made effective when they so order, but if they differ the question at issue shall be referred to the managers of the lines parties hereto; and if they disagree it shall be arbitrated in the manner provided. in article 7."

That "at least five days' written notice prior to each monthly meeting shall be given the chairman of any proposed reduction in rates or change in any rule or regulation governing freight traffic; eight days in so far as applicable to the traffic of Colorado or Utah. * * * *

At each monthly meeting, the association shall consider and vote upon all changes proposed, of which due notice has been given, and all parties shall be bound by the decisions of the association, as

Note. For the provisions of the Sherman Anti-Trust Act see Appendix.