[371]

[372]

We are then brought to the question of the merits of the case between the parties as shown by the pleadings and finding of facts. And this does not require any extended discussion. It is shown that the barque had her proper lights burning brightly, visible, on a dark night and with a clear atmosphere, at least two miles; and that, in character and location, they conformed to the regulations of the barque's nationality, which are the same as those of the British Board of Trade (or the International Rules before referred to); that the mast-head light of the steamer was sighted right ahead, distant about a mile; that the barque was kept steady on her course until the steamer was almost upon her and apparently about to run her down; that then the order was given to put the helm hard a-port; that in a few seconds the steamer's starboard light came in view, and in another instant she struck the barque in her port side, cutting her in two obliquely. In all this we see nothing that the people in charge of the barque did which it was not their duty to do by the International Rules. It was their duty to keep her steady on her course, and it was the duty of the steamer to see the barque and to avoid a collision.

sive proof of negligence that it may be regarded
as properly found amongst the conclusions of
law as a legal inference from those facts. U.
S. v. Pugh, 99 U. S., 265 [bk. 25, L. ed. 322].
The counsel of the appellants suppose that the
court below found the Belgenland in fault on
the mere presumption arising from the fact of
collision and the primary duty of the steam-
ship to avoid it. But this is not a just view of
the decision. There was much more in the
facts of the case than the existence of such a
presumption, as the foregoing rehearsal of the
facts clearly shows. The ability to see objects
at a distance; the fact that the men in charge of
the steamer failed to see the barque, whilst a
a passenger did see her from his room; the fact
that there was but one lookout for such a large
steamer; that other lookouts could have been
stationed on the turtle-back; the fact that the
speed was not slackened and no precautions
taken to get a better view ahead;-these facts, in
addition to the presumption arising from the
steamer's duty, present a very different case
from that supposed by the appellants. The
decision of the court must be taken as the col-
lective result from the whole case. It cannot
be judged from mere isolated expressions in
the opinion.

The rule contended for by the appellants-
that negligence and fault must be proved and
not presumed-is undoubtedly a sound one and
hardly needs cases to support it. But the cir-
cuit court evidently did not rest the case on
presumption, but upon proof, from which it
properly deduced negligence on the part of the
steamship. At all events this court, upon a
careful consideration of the facts found, is sat-
isfied that there was such negligence, and that
it was the cause of the catastrophe.

The decree of the Circuit Court is affirmed, with interest to be added to the amount from the date of the same.

1373

On the other side it appears that the steamer, which was a large and powerful one, 416 feet long and 38 feet beam, was coming towards the barque, end on, at about eleven knots an hour; that she had a lookout on the lee side of her bridge (which was over 150 feet from her bow), where the officer in charge of the deck also was; but had no other lookout on duty, the rest of the watch, except the man at the compass and one at the wheel, were underneath the turtle-back, or top-gallant forecastle. No lookout was on the turtle-back, although it would have been entirely safe to station one there. The omission to do so was for the alleged reason that the vessel was plunging into a head sea and taking so much water over her bows that he would have been of no use there. The barque was not seen by those in charge of the steamer until just at the instant of the collision; yet objects could be seen at a distance of from 500 yards to a mile and the port light of GLOUCESTER FERRY COMPANY, Piff. [196] the barque was seen by a steerage passenger on the steamer, looking out of his room just under the bridge, and was reported to his roommates long enough before the collision to enable the second steerage stewart, who heard the report, to go up the companion ladder, cross the deck and reach the steamer's rail.

We think that these facts furnished a sufficient ground for the conclusions at which the court arrived, as before rehearsed; the substance of which was that the collision occurred by the negligence of those having charge of the Belgenland, in not seeing the barque and in not taking the proper precautions due to such a night and such a sea, by reducing speed and keeping a sufficient lookout.

It is argued that there is no express finding
of negligence or fault as matter of fact, but
only as an inference from the facts found. But
we think that the facts found furnish conclu-

They were adopted for both public and private
vessels of the United States by Act of Congress ap-
proved March 3, 1885. (Public Act No. 100.) They
had been adopted for public vessels before. (See
Luce's Seamanship, 360, ed. 1884.)

True copy. Test:

James H. McKenney, Clerk, Sup. Court, U. 8

in Err.,

V.

COMMONWEALTH OF PENNSYLVA
NIA.

(See S. C., Reporter's ed., 196-218.)

Constitutional law-interstate commerce; regu
lation of taxation of capital stock of ferry
company engaged in-review of authorities-
note.

1. 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 pur pose, as well as the purchase, sale and exchange of commodities.

2. The power to regulate interstate and foreign commerce vested in Congress is the power to pre

regulation of-power of Congress-how far exclusive.

NOTE.-Constitutional law-interstate commerce,

The power to regulate interstate commerce vested in Congress is the power to prescribe the rules by which it shall be conducted, to determine when it shall be free from, and when subject to, duties or other exactions.

When the subjects of commerce are national in

[197]

[198]

Commonwealth should be entered for the
above amount; but if the court were of opinion
that the Company was not liable, judgment
should be entered in its favor.

TI

tected by the Constitution from the impositio
of burdens by state legislation. It therefor
gave judgment in favor of the Company.
case being carried on a writ of error to the S
preme Court of the State, the judgment w
reversed and judgment ordered in favor of th
Commonwealth for the amount mentioned
To review this latter judgment the case
brought here.

Messrs. John G. Johnson, Morton F
Henry, Geo. M. Dallas, M. E. Olmstead an
Samuel Dickson, for plaintiff in error:

The business in which the plaintiff in err was engaged was interstate transportation freight and passengers, and was therefore with in the protection of the Constitution of th United States.

Guy v. Baltimore, 100 U. S., 434 (bk. 25, I ed. 743).

A Statute of Pennsylvania passed June 7, 1879, "to provide revenue by taxation," in its fourth section enacted as follows: "That every company or association whatever, now or hereafter incorporated by or under any law of this Commonwealth, or now or hereafter incorporated by any other State or Territory of the United States or foreign government, and doing business in this Commonwealth or having capital employed in this Commonwealth in the name of any other company or corporation, association or associations, person or persons, or in any other manner, except foreign insurance companies, banks and savings institutions, shall be subject to and pay into the treasury of the Commonwealth annually a tax to be computed as follows, namely If the dividend or dividends made or declared by such company or association as aforesaid, during any year ending with the first Monday of November, amount to six or more than six per centum upon the par value of its capital stock, then the tax to be at the rate of one half mill upon the capital stock for each one per centum of dividend so made or declared if no dividend be made or declared, or if the dividend or dividends made or declared do not amount to six per centum upon the par State Freight Tax, 15 Wall., 232 (82 U. S value of said capital stock, then the tax to be at bk. 21, L. ed. 146); State Tax on Railway Gro the rate of three mills upon each dollar of a Receipts, 15 Wall., 284 (82 U. S., bk. 21, L. ed valuation of the said capital stock," made in 164); Passenger Cases, 7 How., 283; Cranda accordance with the provisions of another sec-v. Nevada, 6 Wall., 35 (73 U. S., bk. 18, L. ed tion of the Act.

It was under the authority of this Act that the taxes in question were stated against the Company by the auditor-general and the state

treasurer

The court of common pleas held at the taxes could not be lawfully levied, for there was no other business carried on by the Company in Pennsylvania except the landing and receiving of passengers and freight, which is a part of the commerce of the country and pro

are local and limited in their nature or sphere of |
operation until Congress intervenes. In addition to
the above case of Gloucester Ferry Co. v. Pa., see
Welton v. Mo., supra, 347; Brown v. Houston, supra;
Cooley v. Port Wardens, 53 U. S. (12 How.), 299;
Pound v. Turck, 95 U. S., 459, bk. 24, 525; Gilman
v. Philadelphia, 70 U. S. (3 Wall.), 713, bk. 18, 92; Wil-
son v. Blackbird Creek M. Co., 27 U. S. (2 Pet.), 245;
Escanaba Co. v. Chicago, supra, Miller v. Mayor,
etc., 109 U. S., 385, bk. 27, 971; Cardwell v. Am.
Bridge Co., supra.

The power of Congress to regulate navigation does
not interfere with the power of the States to pro-
tect and regulate the fisheries within their limits.
McCready v. Va., 94 U. S., 391, bk. 24, 248; Smith v.
Md., 59 U. S. (18 How.), 71, bk. 15, 269; Green v. The
Helen, 1 Fed. Rep., 916.

The power of Congress does not interfere with the police powers of the States. H. & St. J. R. Co. v. Husen, supra; Webber v. Va., 103 U. S., 344, bk. 28,

565.

A statute which prevents the introduction of all
Texas, Mexican and Indian cattle into the State dur-
ing eight months in the year, and which makes no
distinction between those which are diseased and
such as are not, is void, not being a proper exercise
of the police power. H. & St. J. R. Co. v. Huser,
supra.

The States cannot so exercise the police power as to
work a practical assumption of the power vested in
Congress. H. & St. J. R. Co. v. Husen, supra.
The internal commerce of a State is not within the

A foreign corporation has the same right a an individual to conduct everywhere the bus ness of interstate transportation.

Paul v. Virginia, 8 Wall., 168 (75 U. S., bl 19, L. ed. 357); Pensacola Tel. Co. v. W. Tel. Co., 96 U. S., 12 (bk. 24, L. ed. 711); Doy v. Ins. Co., 94 U. S., 544 (bk. 24, L. ed. 152 Tel. Co. v. Texas, 105 U. S., 460 (bk. 26, I ed. 1067).

It is not competent for the State to tax direc ly, either the transportation or the goods of pe sons in transit.

745); Henderson v. Mayor of N. Y., 92 U. S 259 (bk. 23, L. ed. 543); Guy v. Baltimore, su pra; R. R. Co. v. Husen, 95 U. S., 465 (bk. 24 L. ed. 527); Cook v. Pennsylvania, 97 U. S. 566 (bk. 24, L. ed. 1015); Sweatt v. R. R. Co., Cliff., 339; Tel. Co. v. Texas, supra, Welton Missouri, 91 U. S., 275 (bk. 23, L. ed. 347 Car Co. v. Nolan, 22 Fed. Rep., 279; Wood ruff v. Parham, 8 Wall., 138 (75 U. S., bk 19, L. ed. 386); Cannon v. New Orleans, 2 Wall., 577 (87 U. S., bk. 22, L. ed. 417).

power of Congress. The Daniel Ball v. U. S., 77 U S. (10 Wall.), 557, bk. 19, L. ed., 999; U. S. v. DeWit 76 U. S. (9 Wall.), 41, bk. 19., L. ed., 593; Veazie Moore, 55 U. S. (14 How.), 568.

Taxation of a chattel used in interstate commerc is not necessarily a regulation of such commerc within the meaning of the Constitution. Wiggin Ferry Co. v. East St. Louis, 107 U.S., 365, bk. 27, 418 Transp. Co. v. Wheeling, 99 U. S., 273, bk. 25, 412.

A license tax on persons dealing in merchandise no the growth, produce or manufacture of the State conflicts with the power of Congress. Tiernan y Rinker, 102 U. S., 123, bk. 26, 103; Cook v. Pa., 97 U S., 566, bk. 24, 1015; Guy v. Baltimore, 100 U. S.. 434 bk. 25, 743, and authorities cited and reviewed.

"No State can, consistently with the Federal Con stitution, impose upon the products of other State brought therein for sale or use, or upon citizens be cause engaged in the sale therein, or the transpor tation thereto, of the products of other States, mor onerous public burdens or taxes than it impose upon the like products of its own territory." Gu v. Baltimore, supra. See also Moran v. New Or leans, 112 U. S., 69, bk. 28, 653, and authorities cited

Reasonable charges for the use of property or fo additional facilities, whether imposed as a tax o otherwise, do not interfere with the power of Con gress. See the above case of Gloucester Ferry Co v. Pa., and authorities cited in the opinion of the court.

See, generally, Gibbons v. Ogden, 22 U. S. (9 Wh.) 1, note; Brown v. Md., 25 U. S. (12 Wh.), 419, note.

Cal intercourse is guarantied by the of the United States. It cannot be by any State of the Union. All indivicorporations are entitled to do everyis necessary to facilitate this interThey do not derive their rights thus to from any of the States, and are therehave not subject to a tax because they exercise

Mfg. Co., 61 Ind., 520; Ex parte 9 Bass, 309; Council Bluffs v. R. R. 4,338; Coal Co. v. Carrigan, 39 N. Steamship Co., 17 How., 597 (58 15, L. ed. 254); Gibbons v. Ogden, 9 1: Bromenv. Maryland, 12 Wheat., 419. Robert Snodgrass, Deputy AttyPlania, and Lewis C. Cassidy, of Penngloania, for defendant in

not strictly engaged in interstate commerce,
and it it sufficient to say that never, since the
decision of Bk. of Augusta v. Earle, 18 Pet.,
519, has it been denied that where a State can
restrict or control the business of a corporation
when transacted within her limits, she can tax
such business so far as it is done within her juris
diction or can exclude the corporation alto-
gether if she so desires.

See also St. Louis v. Ferry Co., 11 Wall.,
423 (73 U. S., bk. 20, L. ed. 192.)

It is moreover to be observed that the tax
here sought to be imposed is not a tax upon the
specific property of the corporation in which its
capital may be invested. It is not an attempt
to tax the ferry-boats of this Company, nor is
it an effort to tax a corporation in proportion
to the number of ferry-boats it owns. The
tax is not imposed either directly or indirectly
of a State to impose a tax upon the upon them; it is not measured in amount by
of foreign railroad, canal, express their numbers; it is the same whether the Com-
corporations, graduated by the ex-pany owns few or many of them, and is un-
their franchises are exercised affected by the frequency of their use. It there-
State, cannot at this day be success-fore clashes with none of the following decis
verted
ions which form part of the judicial argument
against its validity:

4RR C., 18 Wall., 206 (85 U. S.,

ferry is a public highway of a spe-
, and its termini must be in places
i have rights, as towns or villes,
ading to towns or villes."
Der Bridge v. Warren Bridge, 11

ess of ferriage is not "commerce,"
aning of the Federal Constitution,
at it must be free from state or
y and control.

may be an instrument of commerce.
so, and perhaps in the same sense,
in any case it is at most no
cal aid or instrument, which Con-
ever undertaken to regulate or con-

on was forcibly recognized by
Fred, in County of Mobile v.
2. S., 702 (bk. 26, L. ed. 241).
wer to establish and regulate fer-
other local aids to commerce
state Legislatures and not in Con-

Cannon v. New Orleans, 20 Wall., 577 (87 U. S., bk. 22, L. ed. 417); Transportation Co. v. Wheeling, 99 U. S., 273 (bk. 25, L. ed. 412); Morgan v. Parham, 16 Wall., 471 (83 U. S.,bk. 21, L. ed. 303); Hays v. Steamship Co., 17 How., 595 (58 U. S., bk. 15, L. ed. 254); Hoyt v. Commissioners, 23 N. Y., 227; Passenger Cases, 7 How., 283; Almy v. People, 24 How., 169 (65 U. S., bk. 16, L. ed. 644); Crandell v. Nevada, 6 Wall., 35 (73 U. S., bk. 18, I. ed. 745).

It is rather a tax upon the capital stock of the corporation, "not in separate parcels, as representing distinct properties, but as a homogeneous unit, partaking of the nature of personalty," and taxable where its corporate functions are exercised or its business done.

If the business of ferriage is commerce, as
defined by Chief Justice Marshall, we concede
that any tax laid upon such business which
comes within the ruling of the Passenger Cases
or the State Freight Tax Cases or the many
other cases involving the same principle, is an
interference with commerce, and, for that rea-
son, unconstitutional.

Taylor Ez., 1 Black., 603 (66 U.
Le 191); People v. Babcock, 11
Guidons v. Ogden, 9 Wheat., 1:
Mr. Justice Field delivered the opinion of
Friders of Hudson, 8 Zab., 206; the court:
regorie, 16 How., 524; Ferry Co. The Supreme Court of the State, in giving its
Lo, W. U. S., 865' (bk. 27, L. ed. decision, stated that the single question pre-

sented for consideration was whether the Com-
established by the legislative au-pany did business within the State of Pennsyl-
several State Without such au- vania during the period for which the taxes were
although he may own both imposed; and it held that it did do business
avigable river, has the right to there because it landed and received passengers
and freight at its wharf in Philadelphia, observ-
ark, Miller, 8 Mo., 470; Trustees transportation of freight and passengers from
Bridge v. Warren Bridge, 11 ing that its whole income was derived from the

Surry

27.

its wharf at Gloucester to its wharf at Philaal fact, as each ferriage of per-delphia, and from its wharf at Philadelphia to ys made across the entire its wharf at Gloucester; that at each of these ampany is "doing business in this points its main business-namely, the receipt and is manifestly within the and landing of freight and passengers-was tions intended to be taxed by transacted; that for such business it was deButts not merely within the tax-pendent as much upon the one place as upon phaly within the taxing the other; that, as it could hold the wharf at tan foreign corporation, Gloucester, which it owned in fee, only by pur

[202]

[203]

lation, and to secure uniformity of regulatio that the power to regulate commerce with fo eign nations and among the States was veste Congress.

chase by virtue of the statutory will of the
Legislature of New Jersey, so it could hold by
lease the one in Philadelphia only by the im-
plied consent of the Legislature of the Com-in
monwealth; and that therefore it "was de-
pendent equally, not only for its business, but
its power to do that business, upon both States,
and might therefore be taxed by both." 98 Pa.|
St., 105, 116.

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-in-corporations, and the East India Company, th
deed, is a part of their transportation across the
Delaware River from New Jersey. Without it
that transportation would be impossible. Trans-
portation implies the taking up of persons or
property at some point and putting them down
at another. A tax, therefore, upon such re-
ceiving 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.

ful management large expenditures of mone are conducted by corporations. The usua means of transportation on the public water where expedition is desired are vessels pro pelled by steam; and the ownership of a line o such vessels generally requires an expenditur exceeding the resources of single individual Except in rare instances it is only by associate capital furnished by persons united in corpora tions, that the requisite means are provided fo such expenditures.

Nor does it make any difference wheth such commerce is carried on by individuals by corporations. Welton v. Missouri, 91 U. S 275 [bk. 23, L. ed. 347]; Mobile Co. v. Kimba 102 U. S., 691 [bk. 26, L. ed. 238]. As w said in Paul v. Virginia, at the time of th formation of the Constitution a large part the commerce of the world was carried on b Hudson's Bay Company, the Hamburgh Com pany, the Levant Company, and the Virgini Company were mentioned as among the co porations which,from the extent of their opera tions, had become celebrated throughout th commercial world. 8 Wall., 168 [75 U. S., bl 19, L. ed. 357]. The grant of power is gener in its terms, making no reference to the ager cies by which commerce may be carried on. includes commerce by whomsoever conducted It matters not that the transportation is made whether by individuals or by corporations. A in ferry-boats which pass between the States the present day nearly all enterprises of a com every hour of the day. The means of trans-mercial character requiring for their succes portation of persons and freight between the States does not change the character of the business as one of commerce, nor does the time within which the distance between the States may be traversed. 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, vosted in Con-As to the second reason given to the decisio gress is the power to prescribe the rules by below-that the Company could not lease it which it shall be governed-that is, the condi- wharf in Philadelphia except by the implie tions upon which it shall be conducted; to de- consent of the Legislature of the Common [204] termi when it shall be free, and when sub-wealth, and thus is dependent upon the Cox ject to, duties or other exactions. The power monwealth to do its business, and therefor also embraces within its control all the instru- can be taxed there-it may be answered that n mentalities by which that commerce may be foreign or interstate commerce can be carrie carried on and the means by which it may be on with the citizens of a State without the us aided and encouraged. The subjects, therefore, of a wharf or other place within its limits o upon which the power may be exerted are of which passengers and freight can be landed infinite variety. While with reference to some and received, and the existence of power in of them which are local and limited in their State to impose a tax upon the capital of al nature or sphere of operation, the States may corporations engaged in foreign or interstat prescribe regulations until Congress intervenes commerce for the use of such places would b and assumes control of them; yet, when they inconsistent with and entirely subversive of th are national in their character and require uni- power vested in Congress over such commerce formity of regulation affecting alike all the Nearly all the lines of steamships and of sail States, the power of Congress is exclusive. ing vessels between the United States and Eng Necessarily that power alone can prescribe land, France, Germany and other countries o regulations which are to govern the whole Europe, and between the United States and country. And it needs no argument to show South America, are owned by corporations that the commerce with foreign nations and be- and if by reason of landing or receiving passen tween the States, which consists in the transpor- gers and freight at wharves or other places in tation of persons and property between them is State, they can be taxed by the State on thei a subject of national character and requires capital stock on the ground that they are thereby uniformity of regulation. Congress alone, doing business within her limits the taxe therefore, can deal with such transportation; which may be imposed may embarrass, imped its non-action is a declaration that it shall re- and even destroy such commerce with the citi main free from burdens imposed by state legis-zens of the State. If such a tax can be levie lation. Otherwise there would be no pro- at all its amount will rest in the discretion o tection against conflicting regulations of differ- the State. It is idle to say that the interests o ent States, each legislating in favor of its own the State would prevent oppressive taxation citizens and products and against those of Those engaged in foreign and interstate com other States. It was from apprehension of merce are not bound to trust to its moderation such conflicting and discriminating state legis-in that respect; they require security. And the