under a state law, upon property being in tran- the wood had been cut in the State of Calisit through the State, or from a point in the fornia, and was being floated down the river State to another State, is in violation of these into Nevada, and was then the subject of inlast provisions of the United States Constitu- terstate commerce, and the tax was illegal. tion, or rather, as we understand it, in violation | This makes an exception to the general rule, of the above cited provision giving Congress power to regulate commerce among the several States.

Case of the State Freight Tax, 15 Wall. 232 (82 U. S. bk. 21, L. ed. 146); Almy v. California, 24 How. 169 (65 U. S. bk. 16, L. ed. 644); Woodruff v. Parham, 8 Wall. 123 (75 U. S. bk. 19, L. ed. 382); Steamship Co. v. Port Wardens, 6 Wall. 31 (73 U. S. bk. 18, L. ed. 749); Welton v. Mo. 91 U. S. 275 (Bk. 23, L. ed. 347); R. R. Co. v. Husen, 95 U. S. 465 (Bk. 24, L. ed. 527); Cook v. Pa. 97 U. S. 566 (Bk. 24, L. ed. 1015). Wherever the subjects, in regard to which a power to regulate commerce is asserted, are in their nature national or admit of one uniform system or plan of regulation, they are exclusively within the regulating control of Congress. Transportation of merchandise through a State or from one State to another is of this

nature.

State Freight Tax, supra; Hall v. DeCuir, 95 U. S. 485 (Bk. 24, L. ed. 547).

"The power to regulate commerce among the several States was vested in Congress, in order to secure equality and freedom in commercial intercourse against discriminating state legislation."

R. R. Co. v. Richmond, 19 Wall. 589 (86 U. S. bk. 22, L. ed. 176); Welton v. Missouri, above cited; Webber v. Va. 103 U. S. 344 (Bk. 26, L. ed. 565).

The nonexercise by Congress of its power to regulate commerce among the States is equivalent to a declaration by that body that such commerce shall be free from any restriction. Welton v. Mo. supra.

and the residence of the owner and the actual situs of the property are not the elements that govern in the determination of this exception to the general rule. The governing element that determines whether the property comes within the exception is the fact as to whether the property is the subject of commerce, foreign or interstate. If it is, the constitutional provisions apply to it and Congress has the exclusive power over it and State legislation cannot interfere with it. It is the substance of the matter and not the form that this court has always been zealous to consider.

15 Wall. 272 (82 U. S. bk. 21, L. ed. 160). It may be a license upon the importer; Brown v. Md. 12 Wheat. 436 (25 U. S. bk. 6, L. ed. 684); and a state law imposing a license upon all persons engaged in interstate commerce, like the present license law of New Hampshire, would stand the same.

Welton v. Missouri, 91 U. S. 275 (bk. 23, L. ed. 347).

It may be a tax upon passengers, as in Cran dall v. Nev. 6 Wall. 35 (73 U. S. bk. 28, L. ed. 745).

It may be a direct tax upon the property then the subject of commerce.

Parker Mills v. Comre, 23 N. Y. 245; Welton v. Mo. 91 U. S. 275 (Bk. 23, L. ed. 347); Cook v. Pa. 97 U. S. 566 (Bk. 24, L. ed. 1015).

It may be a tax upon the transportation of freight between different States.

Case of State Freight Tax, 15 Wall. 232 (82 U. S. bk. 21, L. ed. 146).

It may be a stamp duty on bills of lading. Almy v. Cal. 24 How. 169 (65 U. S. bk. 16, L. ed 644).

It may be a fee given to wardens of a port upon every vessel arriving in port.

Steamship Co. v. Port Wardens, 6 Wall. 31 (73 U. S. bk. 18, L. ed. 749).

It will be said that the levying of these taxes, as is said by Blodgett, J., in the opinion in this case in the state court, is no attempt to regulate commerce upon the Androscoggin River, passing from New Hampshire into Maine, and the like in relation to the Connecticut and other large rivers in the State, but is a tax upon property in fact located within the State and legally taxable there. The answer to this posi- Messrs. S. R. Bond, and Ladd & Fletchtion is the practical effect of taxes assessed un-er, for defendant in error. der state laws upon property thus situated.

"It has repeatedly been held that the constitutionality or unconstitutionality of a state tax is to be determined, not by the form or agency through which it is to be collected but by the subject upon which the burden is laid. The same has been decided in the following cases:

Bank of Commerce v. N. Y. City, 2 Black, 620; Bank Tax Case, 2 Wall. 200 (67 and 69 U. 8. bk. 17, L. ed. 451, 793); Society for Savings v. Coite, and Provident Institution v. Massachusetts, 6 Wall. 594, 611 (73 U. S. bk. 18, L. ed. 897, 907); Brown v. Md. 12 Wheat. 419 (25 U. S. bk. 6, L. ed. 677); Henderson v. Mayor of N. Y. City, 92 U. S. 259 (Bk. 23, L. ed.543); State v. Engle, 34 N. J. L. 425.

The case of Conley v. Chedic, 7 Nev. 336, is an illustration of our position. The wood there in question was situated in the State of Nevada, and under the ordinary rule of law would be a subject of taxation under the laws of the State where it was situated; but in that case

All such taxes, when they are levied upon the subjects of commerce under State laws, are void.

Mr. Justice Bradley delivered the opinion of the court:

In September, 1881, Edward S. Coe filed a petition in the Supreme Court of New Hampshire for the County of Coös, against the Town of Errol, for an abatement of taxes, and therein, amongst other things, alleged that on the first of April, 1880, he and others, residents of Maine and Massachusetts, owned a large number of spruce logs that had been drawn down the winter before from Wentworth's location (in New Hampshire) and placed in Clear Stream and on the banks thereof, in the Town of Errol, County of Coos, New Hampshire, to be from thence floated down the Androscoggin River to the State of Maine to be manufactured and sold; and that the selectmen of said Errol for that year appraised said logs for taxation at the price of $6,000, and assessed thereon state, county, town and school taxes, in the whole to the amount of $120, and highway taxes to the

[

amount of $60. A further allegation made the same complaint with regard to a lot of spruce sos belonging to Coe and another person, which had been cut in the State of Maine, and were on their way of being floated to Lewiston, Maine, to be manufactured, but were detained in the Town of Errol by low water. Similar allegations were made with regard to logs cut the following year, 1880, and drawn from Wentworth's location, and part of them deposited on lands of John Akers and part on and of George C. Demeritt, in said Town of Errol, to be from thence taken to the State of Maine; and also with regard to other logs cut in Maine and floated down to Errol on their passage to Lewiston, in the State of Maine, and both which classes of logs were taxed by the selectmen of Errol in the year 1881. The petition also contained the following allegations,

to wit:

"Said Coe further says that said logs of both years, so in the Androscoggin River, have each year been taxed as stock in trade in said Lewison to said Coe and Pingree; and said Coe claims and represents that none of said logs were subject to taxation in said Errol for the reason that they were in transit to market from ne State to another; and also because they had all been in other ways taxed.

Upon this case the Supreme Court of New Hampshire, in September Term, 1882, adjudged as follows, to wit: "Now, at this term, the said questions of law having been fully determined in said law term, and an order made that that portion of said tax assessed upon the logs cut as aforesaid in said State of Maine be abated, and that the tax assessed upon all of said logs cut in the State of New Hampshire be sustained, and said order having been fully made known to the parties of this case and become a part of the record thereof, it is therefore ordered and decreed by the court that there be judgment in accordance with said order made at said law term, without costs to either party."

The petitioner took a bill of exceptions, setting forth the agreed case, and stating, amongst other things, the points raised on the hearing before the Supreme Court of New Hampshire, and the decision of that court thereon, as follows:

On said hearing the petitioner claimed that said taxes named in the petition and the statutes of this State, under the provisions of which said taxes were assessed, were illegal and void because said taxes were assessed in violation of, and said statutes of this State are in violation of and repugnant to the general provisions of

the Constitution of the United States; because "That said Androscoggin River, from its said taxes were assessed in violation of, and said source to the outlet of the Umbagog Lake in statutes of this State are in violation of and rethe State of New Hampshire, through said pugnant to, that part of section 2, art. 4 of the state and through the State of Maine to said Constitution of the United States, which proLewiston, is now and for a long time has been, vides that The citizens of each State shall be to wit: for more than twenty years last past, a entitled to all the privileges and immunities of pablic highway for the floatage of timber from citizens of the several States'; because said taxes said lakes and rivers in Maine, and from the were assessed in violation of, and said statutes apper waters of said Androscoggin River and of this State are in violation of and repugnant its tributarics in New Hampshire down said to those parts of section 8 of article 1 of the river to said Lewiston; and has been thus used Constitution of the United States, which proby the petitioner and his associates in the lum-vide that 'The Congress shall have power ter business for more than twenty years last to regulate commerce with foreign Nations, and among the several States'; and section 10 of said article 1, which provides that 'No State shall, without the consent of Congress, lay any imposts or duties on imports or exports, except what may be absolutely necessary for execut ing its inspection laws.

past."

Without further pleading, the parties made in agreed case, the important part of which is

follows, to wit:

***

It is agreed that the facts set forth in the petition are all true except what is stated as to the taxation of the logs as stock in trade in Lewiston, Maine; and if that is regarded by the court as material, the case is to be discharged and stand for trial on that point. It is agreed tast upon this petition the legality of the taxaon is intended to be brought before the court The question for us to consider, therefore, is fer adjudication, and all formal objections to whether the products of a State (in this case e proceedings in the town meeting, etc. and timber cut in its forests) are liable to be taxed al other matters of form are waived; and we like other property within the State, although abit the matter to the court for a legal ad- intended for exportation to another State and sion as to whether or not any or all of the partially prepared for that purpose by being deposited at a place of shipment, such products being owned by persons residing in another State.

The case is now before us for consideration

upon writ of error to the Supreme Court of
New Hampshire; and the same points that
were urged before that court are set up here as
grounds of error.

ares shall be abated.

And it is agreed that for many years the ner and his associates in the lumber busiDes have cut large quantities of timber on their | We have no difficulty in disposing of the last ards in condition of the question, namely: the fact, if akes and rivers in Maine and down the An- it be a fact, that the property was owned by in River to the mills at said Lewiston; persons residing in another State; for, if not and timber thus cut has always lain over one exempt from taxation for other reasons, it canon, being about a year, in the Androscoggin not be exempt by reason of being owned by 2. in this State, either in Errol, Dunmer nonresidents of the State. We take it to be a Man; and the timber referred to in this pe- point settled beyond all contradiction or quesas having been cut in Maine had lain over tion, that a State has jurisdiction of all persons Errol since the spring or summer before the and things within its territory which do not paration, according to the above custom." belong to some other jurisdiction, such as the

116 U.S.

[520]

[524]

Do the owner's state of mind in relation to the goods, that is, his intent to export them, and his partial preparation to do so, exempt them from taxation? This is the precise question for solution.

representatives of foreign governments, with | portation; for that would amount to laying a their houses and effects, and property belong-duty on exports, and would be a plain infracing to or in the use of the Government of the tion of the Constitution, which prohibits any United States. If the owner of personal prop- State, without the consent of Congress, from erty within a State resides in another State laying any imposts or duties on imports or exwhich taxes him for that property as part of ports; and, although it has been decidedhis general estate attached to his person, this Woodruff v. Parham, 8 Wall. 123 [75 U. S. bk. action of the latter State does not in the least 19, L. ed. 382]-that this clause relates to imaffect the right of the State in which the prop- ports from and exports to foreign countries, erty is situated to tax it also. It is hardly yet, when such imposts or duties are laid on necessary to cite authorities on a point so ele-imports or exports from one State to another, mentary. The fact, therefore, that the owners it cannot be doubted that such an imposition of the logs in question were taxed for their would be a regulation of commerce among the value in Maine, as a part of their general stock States and, therefore, void as an invasion of the in trade, if such fact were proved, could have exclusive power of Congress. See Walling v. no influence in the decision of the case and may Michigan [ante, 691], decided at the present be laid out of view. term, and cases cited in the opinion in that case. We recur, then, to a consideration of the But if such goods are not taxed as exports, nor question freed from this limitation: Are the by reason of their exportation or intended exproducts of a State, although intended for ex-portation, but are taxed as part of the general [525] portation to another State and partially pre- mass of property in the State, at the regular pared for that purpose by being deposited at a period of assessment for such property and in place or port of shipment within the State, lia-the usual manner, they not being in course of ble to be taxed like other property within the transportation at the time, is there any valid State? reason why they should not be taxed? Although intended for exportation, they may never be exported; the owner has a perfect right to change his mind; and until actually put in motion, for some place out of the State, or comImitted to the custody of a carrier for transporThis question does not present the predica- tation to such place, why may they not be ment of goods in course of transportation regarded as still remaining a part of the general through a State, although detained for a time mass of property in the State? If assessed in within the State by low water or other causes an exceptional time or manner, because of their of delay, as was the case of the logs cut in the anticipated departure, they might well be conState of Maine, the tax on which was abated by sidered as taxed by reason of their exportation the Supreme Court of New Hampshire. Such or intended exportation; but if assessed in the goods are already in the course of commercialsual way, when not under motion or shipment, transportation and are clearly under the protec- we do not see why the assessment may not be tion of the Constitution. And so, we think, valid and binding. would the goods in question be when actually The point of time when state jurisdiction over started in the course of transportation to another the commodities of commerce begins and ends State, or delivered to a carrier for such trans-is not an easy matter to designate or define; and portation. There must be a point of time when yet it is highly important, both to the shipper they cease to be governed exclusively by the and to the State, that it should be clearly dedomestic law and begin to be governed and pro- fined so as to avoid all ambiguity or question. tected by the national law of commercial regu- In regard to imports from foreign countries, it lation, and that moment seems to us to be a was settled in the case of Brown v. Md. 12 legitimate one for this purpose, in which they Wheat. 419 [25 U. S. bk. 6, L. ed. 677], that commence their final movement for transpor- the State cannot impose any tax or duty on such tation from the State of their origin to that of goods so long as they remain the property of their destination. When the products of the the importer and continue in the original form farm or the forest are collected and brought in or packages in which they were imported; the from the surrounding country to a town or sta- right to sell without any restriction imposed by tion serving as an entrepot for that particular the State being a necessary incident of the right region, whether on a river or a line of railroad, to import without such restriction. This rule such products are not yet exports nor are they was deemed to be the necessary result of the in process of exportation, nor is exportation prohibitory clause of the Constitution, which begun until they are committed to the common declares that no State shall lay any imposts or carrier for transportation out of the State duties on imports or exports. The law of to the State of their destination or have started Maryland which was held to be repugnant to on their ultimate passage to that State. Until this clause required the payment of a license then it is reasonable to regard them as not only tax by all importers before they were permitted within the State of their origin, but as a part to sell their goods. This law was also considof the general mass of property of that State, ered to be an infringement of the clause which subject to its jurisdiction and liable to taxation gives to Congress the power to regulate com there, if not taxed by reason of their being in- merce. This court, as before stated, has since tended for exportation, but taxed without any held that goods transported from one State to discrimination, in the usual way and manner another are not imports or exports within the in which such property is taxed in the State. meaning of the prohibitory clauses before referred to: and it has also held that such goods, having arrived at their place of destination, may be taxed in the State to which they are carried,

[526]

Of course they cannot be taxed as exports; that is to say, they cannot be taxed by reason or because of their exportation or intended ex

if tared in the same manner as other goods are worth's location to Errol, the place from which
tated, and not by reason of their being brought they were to be transported to Lewiston in the
Into the State from another State, nor subjected State of Maine. There they were to remain
in any way to unfavorable discrimination. until it should be convenient to send them to
Wondruff v. Parham [supra Brown v. Hous- their destination. They come precisely within
ton [ante, 257].
the character of property which, according to
But no definite rule has been adopted with the principles herein laid down, is taxable. But
regard to the point of time at which the taxing granting all this, it may still be pertinently
power of the State ceases as to goods exported asked, How can property thus situated, to wit:
to a foreign country or to another State. What deposited or stored at the place of entrepot for
we have already said, however, in relation to future exportation, be taxed in the regular way
the products of a State intended for exportation as part of the property of the State? The an-
to another State will indicate the view which swer is plain. It can be taxed as all other prop-
sets to us the sound one on that subject, erty is taxed, in the place where it is found, if
amely: that such goods do not cease to be part taxed or assessed for taxation in the usual man-
of the general mass of property in the State, ner in which such property is taxed, and not
subject, as such, to its jurisdiction and to taxa singled out to be assessed by itself in an unusua
in the usual way, until they have been and exceptional manner because of its destina
shipped or entered with a common carrier for tion. If thus taxed, in the usual way that other
transportation to another State or have been similar property is taxed, and at the same rate
started upon such transportation in a continu- and subject to like conditions and regulations,
route or journey We think that this must the tax is valid. In other words, the right to
be the true rule on the subject. It seems to us tax the property being founded on the hypothe
tenable to hold that a crop or a herd is ex-sis that it is still a part of the general mass of
empt from taxation merely because it is, by its property in the State, it must be treated in all
owner, intended for exportation. If such were respects as other property of the same kind is
e rule, in many States there would be noth- treated.
az but the lands and real estate to bear the
Some of the western States produce very
te, except wheat and corn, most of which is
mended for export; and so of cotton in the
Certainly, as long as these
products are on the lands which produce them,
are part of the general property of the
And so we think they continue to be
til they have entered upon their final journey
leaving the State and going into another
It is true, it was said in the case of The
Daniel Ball, 10 Wall. 565 [77 U. S. bk. 19, L.
102]: "Whenever a commodity has begun
move as an article of trade from one State to
ther, commerce in that commodity between
States has commenced." But this move-
does not begin until the articles have been
pped or started for transportation from the
State to the other. The carrying of them in
arts or other vehicles or even floating them to
the depot where the journey is to commence is
30 part of that journey. That is all preliminary

wrthern States.

k, performed for the purpose of putting the perty in a state of preparation and readiness transportation. Until actually launched on way to another State, or committed to a comcarrier for transportation to such State, its tion is not fixed and certain. It may be or otherwise disposed of within the State, Putin course of transportation out of Carrying it from the farm or the for. to the depot is only an interior movement of e property, entirely within the State, for the se, it is true, but only for the purpose, of

it into a course of exportation; it is no the exportation itself. Until shipped or red on its final journey out of the State its tation is a matter altogether in fieri, and 24 all a fixed and certain thing.

The application of these principles to the

These conditions we understand to have been

complied with in the present case. At all events
there is no evidence to show that the taxes were
not imposed in the regular and ordinary way.
As the presumption, so far as mode and manner
are concerned, is always in favor of, and not
against, official acts, the want of evidence to
the contrary must be regarded as evidence in
favor of the regularity of the assessment in this
case.

The judgment of the Supreme Court of New
Hampshire is affirmed.

True copy. Test:

James H. McKenney, Clerk, Sup. Ct. U. S.
Cited-117 U. 8. 179, 506, 507.

GEORGE K. OTIS, Piff. in Err.,

OREGON STEAMSHIP COMPANY.

Bee 8. C. Reporter's ed. 548-550.)
Jurisdiction.

ord shows on its face that a federal question was
not necessarily involved and does not show that one
was raised, this court will not go out of it, to the
opinion or elsewhere, to ascertain whether such a
Submitted Jan. 25, 1886. Decided Feb. 1, 1886.
[No. 1250.]

Upon a writ of error to a state court, if the reo

question was in fact decided.

IN ERROR York.
'N ERROR to the Court of Appeals of the

On motion to dismiss.

The history and facts of the case sufficiently appear in the opinion of the court.

1 case is obvious. The logs which were error, in support of motion. Led, and the tax on which was not abated by

Mr. George H. Adams, for defendant in

Court of New Hampshire, had not, sions, for plaintiff in error, contra. o taxed, been shipped or started on their,

Messrs. John R. Abney and John Ses

wage or journey to the State of Maine.

Mr. Chief Justice Waite delivered the opin

ad only been drawn down from Went-ion of the court:

114 C.S.

[549]

[550]