If either of the three vessels of the appellant | 18 L. ed., 749, and Peete v. Morgan, 19 Wall., was new and making her first voyage, and an- 581, 22 L. ed., 201. other of the same tonnage was making her last trip before being broken up, and the former were of many times the value of the latter, the Act would apply the same procrustean rule to both. The rate of payment, and the amount to be paid, would, in both cases, be the same. The Act makes a discrimination. To one class of vessels it applies the rate here in question, to another class double that rate, and to yet another class none at all. Those belonging to the latter are wholly exempted. We think the clearer case of the imposition of a tonnage duty than is presented in the record before us can hardly be imagined. If the law had been passed by Congress instead of the State, and the charge imposed had been express244] ly designated a *tonnage duty, its character as such could not appear in a stronger light. But the name is immaterial; it is the substance we are to consider. The tax imposed is not merely a mode of measuring the compensation to be paid. The answer to this suggestion is, that it is exacted where there is nothing to be paid for, and has no reference to any circumstance in this connection but the tonnage of the vessel and the class to which it belongs. The commerce clauses of the Constitution had their origin in a wise and salutary policy. They give to Congress the entire control of the foreign and interstate commerce of the country. They were intended to secure harmony and uniformity in the regulations by which they should be governed. Wherever such commerce goes, the power of the nation accompanies it, ready and competent, as far as possible, to promote its prosperity and redress the wrongs and evils to which it may be subjected. It was deemed especially important that the States should not impose tonnage taxes. Hence the prohibition in the Constitution, without the assent of Congress previously given. The confusion and mischiefs that would ensue if this restriction were removed are too obvious to require comment. The lesson upon the subject taught by the law before us is an impressive one. How the charges, which it is conceded the State may impose, must be shaped in order to be valid, is a subject which it is not within our province to consider, and in regard to which it would not be proper for us to express any opinion. We decide only the point before us. The decree of the Circuit Court is reversed and the cause will be remanded, with directions to proceed in conformity to this opinion. The Chief Justice did not sit in this case and took no part in its decision. It does not advance the argument in behalf of the appellee to maintain that the regulations prescribed by the Act are necessary and proper in the port for which they are provided. It is not our purpose to examine them, except as to the proposition in hand. It may be that, aside from the imposition of this tax, they contain nothing exceptionable, and that in all other respects they are wise and well considered. Similar provisions, varying according to local circumstances, exist at all important points throughout the world whither marine commerce finds its way. They are indispensable to those engaged in that business. They fence out many evils, and promote largely the convenience and the welfare of those engaged in this field of enterprise. Perhaps it is hardly too strong language to say, they are well nigh vital to commerce itself. It may be conceded, also, that foreign steamships and other vessels visiting the ports of a State for business purposes may be made liable by the laws of such State for all reasonable and proper *ROBERT W. FOSTER, Plff. in Err., [246 port charges. This is but a fair return for the benefits received. But such charges must not be repugnant to the Constitution of the United THE States. Any conflict is fatal to them. The warrant for such competent legislation may be found in that immense mass of police and other powers which the State originally possessed, which they have not parted with, and which still belongs to them; or it may in some cases be found among those which the States may exercise, but only until Congress shall see fit to act upon the subject. The authority of the State then retires, and lies in abeyance until the occasion for its exercise shall recur. Ex parte Submitted Nov. 24, 1876. McNiel [supra]. "Powers not delegated to the United States by the Constitution, nor prohibited by it to the V. MASTER AND WARDENS OF THE (See S. C., Reporter's ed., 246-248.) Louisiana Act void. The Louisiana Act of March 6, 1869, in regard to a survey of the hatches of sea-going vessels coming to the Port of New Orleans and a survey of damaged goods, is a regulation of commerce, and unconstitutional and void. [No. 116.] 1877. Decided Mar. 13, In Error to the Supreme Court of the State States, are reserved to the States respectively, of Louisiana. or to the people." Const. Amend., 10. The case, which arose in the Superior Dis petition for an injunction, is fully stated by the court. Messrs. Leovy, Monroe & Hart, Emmet D. Craig and R. H. Marr, for plaintiff in error. The State, in passing this law imposing a ton-trict Court for the Parish of Orleans, upon a nage duty, has exercised a power expressly prohibited to it by the Constitution. In that particular the law is, therefore, void. This view is sustained by the rulings of this court in the State Tonnage Tax Cases, 12 Wall., 204, 20 L. ed., 370, and Cannon v. New Orleans, 20 245] Wall., 577, 22 L. ed.. 417. *See, also, Steamship Co. v. Port-Wardens, 6 Wall., 31, See NOTE.-Power of Congress to regulate commerce; state licenses; power of State to tax commerce. note to Gibbons v. Ogden, 6 L. ed. U. S., 23; and note to Brown v. Maryland, 6 L. ed. U. S. 678. No counsel appeared in this court for defend-exports, for the protection of buyers and conants in error. Mr. Justice Swayne delivered the opinion of the court: sumers. Gibbons v. Ogden, 9 Wheat., 203; Brown v. Md., 12 Wheat., 419; Clintsman v. Northrop, 8 Cow., 46; Bouv. L. Dic. "Inspection;" Story, Const., secs. 1017, 1024; Neilson v. Garza, 2 Woods, 290. The purpose of this Act is to furnish official evidence for the parties immediately concerned, and where the goods are damaged, to provide for and regulate their sale. Master, etc., v. The Hawes, 6 La. Ann., 390. This controversy has arisen out of an Act of the Legislature of Louisiana, approved March 6, 1869. By the 1st section it was made the duty of the Master and Wardens of the Port of New Orleans to offer their services to make a survey of the hatches of all sea-going vessels which should arrive at that port, and a penalty Besides the unreason and oppressive characwas prescribed for the neglect of this duty. The ter of the Act as regards ship-owners [248 2d section declares "That it shall be unlawful and consignees, it is an invasion of the rights for any person other than the said Master and of persons outside of these classes. If such a Wardens, or their legally constituted deputy, to monopoly, sustained by such sanctions, may be make any survey of the hatches of sea-going ves- validly given to the Master and Wardens, why sels coming to said Port of New Orleans, or to may they not also, at prices not agreed upon by make any survey of damaged goods coming on the parties, nor according to the market value, board of such vessels, whether such survey be but at rates arbitrarily fixed by law, be aumade on board or on shore, or to give certifi-thorized exclusively to load and unload ships, cates on orders for sale of such damaged goods to furnish them with all needful supplies, and at auction, or to do any other of the acts and to perform all the services of consignees, comthings prescribed by law for said Master and Wardens to do and perform; and the person doing such illegal and forbidden acts, his instigators and encouragers, shall be liable and bound to pay in solido to the said Master and Wardens $100, with damages and costs, for each of said illegal and forbidden acts so done." The petition avers that Foster resides in the City of New Orleans, and has been and is continually violating the provisions of the Act by making surveys of the hatches of sea-going vessels arriving at that port, and of damaged goods, 247] and has been and is engaged in acting as and performing the duties which belonged to the Master and Wardens of the port. An injunction was prayed for. It was granted by the lower court, and the judgment was affirmed by the Supreme Court of the State. A writ of error was thereupon sued out by Foster, and the case is thus brought before this court for review. The defendants in error have failed to enter their appearance, and no brief in their behalf has been submitted. We shall, therefore, derote but few remarks to the case. The Constitution of the United States, art. 1, sec. 8, gives to Congress the power to "regulate commerce with foreign nations, and among the several States, and with the Indian Tribes." That the provisions of this Act are regulations of both foreign and interstate commerce is a proposition which requires no argument to support it. They are a clog and a blow to all such commerce in the port to which they relate. Their enactment involved a power which belongs exclusively to Congress, and which a State could not, therefore, properly exercise. In Steamship Co. v. Port-Wardens, 6 Wall., 31, 18 L. ed., 749, it was held that a statute of a State enacting that the Master and Wardens of a port within it should be entitled to demand and receive, in addition to other fees, the sum of $5, whether called on to perform service or not, for every vessel arriving in that port, was a regulation of commerce, and was unconstitution and void. If the constitutional objection was well taken there, a multo fortiori is it fatal here. The Act is not, in the sense of the Constitution, an inspection law. The object of such laws is to certify the quantity and value of the articles inspected, whether imports or mission merchants, and ship brokers, touching incoming and outgoing cargoes? Each of these imagined cases is a parallelism to the case before us, and only another step in the same direction. We hold the statute to be void. In expressing these views, we have no purpose to impugn anything heretofore said by this court as to the power of the States to establish inspection, quarantine, health and other regulations, within the sphere of their acknowledged authority. The constitutional validity of such regulations is as clear as the power of Congress to establish regulations of commerce. is no objection to the former that both operate upon the same subject. Gilman v. Philadelphia, 3 Wall., 713, 18 L. ed., 96; Ex parte McNiel, 13 Wall., 236, 20 L. ed., 624. It The judgment of the Supreme Court of Louisiana is reversed and the cause will be remanded, with directions to dismiss the petition. Ex Parte CONRAD N. JORDAN, HENRY (See S. C., Reporter's ed., 248-252.) Who may appeal-mandamus. 1. Petitioners allowed to intervene in a suit, who were defendants interested in the suit when the final decree was rendered, may except to the master's report, and if their exceptions are overruled, may appeal to this court, from the final decree. 2. A writ of mandamus may be issued directing the circuit court to allow the appeal. [No. 13. Orig.] Argued Jan. 24, 1877. Decided Mar. 13, 1877. Application for a writ of mandamus. The case is fully stated by the court. Mr. F. N. Bangs, for petitioners: In all cases of suits in rem, such as foreclosures, partnership suits, suits for the execution of trusts, creditors' suits, accountings, service of a subpoena is not the only method of making parties defendant to a suit. They may NOTE. Who may appeal to U. S. Supreme Courtsee note, 66 L. R. A., 854. he brought in on their own petition, or by availing themselves of a decree for their benefit, or by purchasing an interest in the res; and when thus brought in, they are parties as effectually and to all intents and purposes as if brought in by subpoena. Calv. Part., 55-66. 17 Law Lib.; Harrison v. Nixon. 9 Pet., 483; Innes v. Lansing, 7 Paige, 585; Ogilvie v. Knox Ins. Co., 2 Black, 539, 17 L. ed., 349: Blossom v. R. R. Co., 1 Wall., 655, 17 L ed., 673; In Re Howard, 9 Wall., 186, 19 L. ed., 637; R. R. Co. v. Cowdrey, 11 Wall., 479, 20 L. ed., 205. If they had a standing to approach the original court through its masters, and on a reference ad computandum, and on the final hearing, that right and privilege survived the decree and involved the right and privilege of an appeal: 2 Dan. Ch. Pr., 1460; Kellogg v. Forsyth, 24 How., 186, 16 L. ed., 654. The court having gotten possession of a fund proceeded to execute the trust, regardless of the legal title. Can it be said that the exercise of a judicial function by a circuit court, upon a final hearing touching the distribution of many millions of dollars, and acting directly upon the interests of parties regularly before it, is not reviewable here? The Burns, 9 Wall., 239, 19 L. ed.. 621; R. R. Co. v. Morgan, 10 Wall.. 258, 19 L. ed., 892; McVeigh v. U. S., 11 Wall., 267, 20 L. ed., 81. Mr. William M. Evarts, for respondents: It has been decided by this court, Barrell v. Transportation Co., 3 Wall., 424, 18 L. ed., 168, that it has no authority to act on a petition for appeal, unless accompanied by an allowance of the appeal by the circuit court. Since this necessity for an allowance exists, it seems to require, of the judges below, the exercise of something more than mere ministerial functions. Said Mr. Justice Bradley of such a defaulting defendant, against whom a bill in equity had been taken pro confesso; Frow v. De La Vega, 15 Wall., 552-554, 21 L. ed., 60-61. "The defaulting defendant has merely lost his standing in court; he will not be entitled to service of notices in the cause, nor to appear in it in any way. He can adduce no evidence; he cannot be heard at the final hearing." It has been repeatedly held that objections to a master's report to which no exceptions were taken in the court below, cannot be sustained on appeal. Kinsman v. Parkhurst, 18 How., 289, 15 L. ed., 385; McMicken v. Perin, 18 How., 507, 15 L. ed., 504; Hudgins v. Kemp, 20 How., 45, 54, 15 L. ed., 853, 856. Mr. Chief Justice Waite delivered the opin ion of the court: trustee, and the Mercantile Trust Company, trustee, were originally the only defendants. Receivers were appointed November 18. 1873; and on the same day. for the purpose of providing money to pay debts owing to employés. and for certain other specified objects, the receivers were authorized to issue from time to time certificates of indebtedness to an amount not exceeding in the aggregate $1,425.000, bearing interest at the rate of seven per cent. per annum. and, unless previously discharged, to be paid out of the moneys realized upon the foreclosure equally with any other liabilities incurred by them in the administration of their receivership. December 23, 1873, a further issue of like certifcates was authorized, for the purchase of equip ment and the payment of rental on leased lines. In due time an order was regularly entered, taking the bill as confessed. The receivers from time to time filed their accounts; and these were referred to a master, who reported thereon April 29, 1875. Upon the filing of this report the following direction was given by the circuit judge: "The report may be confirmed, but at present I think no further order should be entered." June 29, 1875, Conrad N. Jordan, Henry Amy, Edward Livingston, Frederick P. James, John P. Crosby and Nathaniel A. Cowdrey, holders, or the representatives of holders, of bonds secured by the mortgage, filed a petition for leave to intervene in the prosecution or defense of the suit, for the protection of the interests they represented. Upon this petition the following order was made, June 30, 1875: "It is hereby ordered that the said petitioners have leave, and leave is hereby granted to them, to intervene in this suit for their own interests, and the interests of those whom they represent, and to that end to appear in the suit within three days, as defendants, in the same manner and with like effect as if they were named in *the original and supplemental bills as de- [250 fendants having or claiming an interest: Provided, That said petitioners all appear by the same solicitor or solicitors. This order to be without prejudice to proceedings already had: but this is not to be construed as depriving the petitioners of leave to apply for a rehearing or review of any order heretofore made, upon due notice to the parties interested.” About the same time a similar petition was presented by John E. Williams and Theodore Houston, and they were admitted upon the same terms. July 13, 1875, the cause coming on for hearing, the complainants submitted a proposed form of final decree, and the defendants' various amendments thereto. The hearing was postponed until August 4, when a further postponement took place until September 15, and the master was directed "to compute. ascer tain and report to the court, on or before the The New York, Oswego and Midland Rail- eleventh day of September, 1875," among other 249] road Company, July 1, 1869, executed things, "the amount of certificates of indebta mortgage on its railroad, etc., to secure an is- edness and notes issued by the receivers under sue of bonds amounting to $8,000,000. Stevens, the authority of the court, classifying them so Opdyke & Hewitt, trustees under this mort- as to show the dates of and authority for their gage, on or about November 1, 1873, commenced issue, and the purpose of such issues respecta suit for its foreclosure in the Circuit Court ively, and to whom issued by the receivers, and of the United States for the Southern District the aggregate amount of principal due thereof New York. To this suit the railroad com- on, with interest computed to September 15. pany, Delos DeWolf, trustee, William H. Macy, 1875; also what leases have been made to the mortgagor or receivers, and the dates and terms thereof; also what rents have accrued under the terms of such leases and have not been paid." certain and report." Before the master could comply with this order, proof had to be taker; and the original time given him to report was extended for that purpose. When this refer The time for taking proof by the master hav-ence was made, the petitioners were defendants and actors in respect to the litigation. They The cause at last came on for final hearing, October 2, 1876, among other things, upon the erceptions to the master's report "filed by defendants Conrad N. Jordan and others on the 5th of January, 1876," and after argument, among others, by "Mr. F. N. Bangs, of counsel for the defendants, Conrad N. Jordan, Henry Amy, John P. Crosby, Edward Livingston, Frederick P. James and Nathaniel A. Cow251] drey," a decree was entered *finding the amount due upon certain detached coupons, upon the bonds and attached coupons, and upon the receivers' certificates, and directing the mortgaged property to be sold, and the proceeds applied to the payment of the sums so found due. The present petitioners, claiming to be aggrieved by certain specified orders made in the cause previous to their admission as defendants, and also by so much of the final decree as directs the payment of certain designated coupons, and of the receivers' certificates, and by certain other provisions of the decree which are specially stated, on the second day of October, 1876, in open court, prayed an appeal to this court "from so much and such parts of the decree" as they claim to be aggrieved by. This was denied, for the reason that the court was of the opinion "That the said defendants cannot appeal from the decree, because the bill of complaint herein and the supplemental bill have been taken as confessed as against them." Afterwards the petitioners again applied to the circuit judge for the allowance of an ap- TOWNSHIP OF EAST OAKLAND, Plff. in peal from the same parts of the decree, and tendered good and sufficient security to perfect the appeal; but it was refused. While complaint is made of interlocutory orders entered in the progress of the cause, the appeal lies and was asked only from the final Whatever comes here comes through decree. When the case gets here, the such an appeal. petitioners may not be allowed to go behind orders actually made by the court as to the administration of the property before they were admitted to defend, but the case was certainly open to them, when they came in, as to all other matters involved. Thereupon this application was made November, 1876, for a mandamus directing the Circuit Court to allow the appeal as asked for. We think the appeal should have been allowed. The petitioners were defendants in the suit when the final decree was rendered. They were directly interested in what was then decided. The allowance of an appeal under section 692, R. S., follows of course, if prayed for by one who has the right to it. The language of the statute is, "shall be allowed," which means "must be allowed," when asked for by one who stands in such relation to the cause that he can demand it. The question upon such an application is not what will be gained by an appeal, but whether the party asking it can appeal at all. The exceptions of the petitioners were not filed until after the expiration of one month from the time of filing the master's report. Under equity Rule 83 the complainants could have insisted upon a confirmation of the report by reason of this default at the next rule-day after it occurred. But they did not see fit to do so. The exceptions were received out of time without objection, and acted upon by the court. This was a waiver of the default. Let a writ of mandamus issue directing the Circuit Court to allow the appeal asked for, as of October 2, 1876. Err., WILLIAM B. SKINNER. (See S. C., Reporter's ed., 255-258.) Illinois Act-state decisions-bona fide holder. 1. The Illinois Act to incorporate the Paris and Decatur R. R. Co., which provided that the agent of any corporate body may subscribe any amount to the capital stock of said Company, did not give such stock and to issue its bonds therefor. power to a municipal organization to subscribe to 2. If the Supreme Court of a State gives construction to a statute of such State, and there have been no conflicting decisions, this court, as a general rule, follows the construction, thus given. 3. There can be no bona fide holding of municipal bonds where the statute did not authorize the issue of the bonds. [No. 927.] 252] *It is true that the petitioners were not Submitted Jan. 15, 1877. Decided Mar. 13, 1877. parties to the suit until after the bill was taken as confessed; but it is clear that a decree pro confesso did not end the case, because before the final decree was rendered it was found necessary to have a reference to a master, "to compute, as In Error to the Circuit Court of the United Messrs. Jas. C. Robinson, George A. Sanders, Hay, Greene & Littler and S. M. Cullom, for defendant in error. Mr. Justice Hunt delivered the opinion of the court: The defendant in error brought this suit in the Circuit Court of the United States for the Southern District of Illinois against the Township of East Oakland, to recover the amount of certain interest coupons issued with certain bonds by Charles Clement, Supervisor, and as the agent of the said Town, upon a subscription to the stock of the Paris and Decatur Railroad Company. The Paris and Decatur Railroad Company is a corporation of the State of Illinois, organized under an Act of the General Assembly of said State, entitled "An Act to Incorporate the Paris and Decatur Railroad Company," approved Feb. 18, 1861, with authority to construct, maintain and operate a railroad from the Town of Paris to the Town of Decatur, in said State. By the 5th section of said Act it is provided that "Said corporation shall cause books to be opened for subscriptions to the capital stock thereof, to be divided into shares of $50 each, at such times and places as they may choose, and shall give at least thirty days' notice thereof by publication in a newspaper published in the town or city where said books may be opened; and if there be no newspaper published therein, then in the nearest newspaper thereto. It shall be lawful for all persons of lawful age, or for the agent of any corporate body, to subscribe any amount to the capital stock of said company.' It was by the authority of this section that the subscription we are considering was made, and the bonds and coupons issued in payment therefor. Did this language, "the agent of any corporate body," give power to a municipal organization to subscribe and to issue its bonds as was here done? If of that character could be produced to us. We are, however, all of the opinion that the case of Campbell v. The Company, as above stated, was rightly decided, and, as an original question, we concur in the opinion given by the Supreme Court of Illinois. We think the authority to "the agent of any corporate body" to subscribe for stock in the railroad company was not intended to include, and did not include municipal corporations. It meant private and money-making trading or business corporations. It did not intend to give authority to any township, however remote from the road, to become one of its stockholders. A provision of the Constitution of the State of Illinois, which took effect on the second day of July, 1870, positively prohibited a subscription to the capital stock of a railroad corporation by any county, city, township or other municipality, unless such subscription had been authorized under existing laws by a vote of the people prior to the date mentioned. The subscription in question was made after July 2, 1870. *Had it before that date [258 been authorized under existing laws by a vote of the people of that Town? The record shows that a vote of the people had before that time been taken; but it does not show that it was authorized by existing laws. There was no authority for submitting that question to the people; and its absence in the 5th section of the Act incorporating the Paris and Decatur Company is a strong argument that municipalities were not intended to be included under the general designation of corporations. We have held that a town cannot subscribe for stock in a railroad corporation unless it has the authority of the Legislature for the Act. The Legislature usually requires the approval of the electors of the Town, at an election for that purpose, as a condition to such subscripIn the recent case of Campbell v. R. R. Co., tion. Doubtless, the Legislature can impose or not yet reported [71 Ill., 611], the Supreme omit conditions, in its discretion. But when Court of Illinois passed upon the effect of this the sanction of a popular vote is required, it statute. After quoting the section as given must be obtained. We are, therefore, comabove, the court say: "This is the only pro-pelled to hold that the subscription of the Town vision in the charter in reference to subscrip- of East Oakland had not been authorized un257] tions by either persons or *corporations. der existing laws by a vote of the people prior It confers no power on municipal corporations to July 2, 1870. to subscribe for such stock. The provision manifestly refers to private corporations when it authorizes agents to subscribe. It does not refer to counties, cities, towns or townships, and cannot be held to embrace them. No power is conferred to call the election, or for the town officer to make the subscription, or to issue these or any other bonds." We have not been furnished with a copy of this decision, but it is referred to in the briefs of both parties. While its effect or conclusiveness is a subject of difference, the decision itself is not denied. If the Supreme Court of a State gives construction to the language of a statute, and there have been no conflicting decisions, this court, as a general rule, follows the construction thus given. Elmwood v. Marcy, 92 U. S., 289, 23 L. ed., 710. It is said that this decision was ex parte, and that the decision was given on a made-up case; that the contest was not a real one. There is no evidence of the truth of these assertions, and we do not well see how evidence We have held that there can be no bona fide holding where the statute did not in law authorize the issue of the bonds. The objection in such case goes to the point of power. There is an entire want of jurisdiction over the subject. It is not the case of an informality, an irregularity, fraud or excess of authority in an authorized agent. Where there is a total want of authority to issue the bonds, there can be no such thing as a bona fide holding. Judgment reversed. GEORGE CHORPENNING, Appt., v. UNITED STATES. (See S. C., Reporter's ed., 397-400.) Effect of repeal of law on private right. Where the Postmaster-General, under authority |