terference with Federal admiralty jurisdiction. An unlawful interference with the exclusive Jurisdiction of admiralty and maritime cases, vested by the Federal Constitution in the courts of the United States, is made by the attempt by 2 Bal. (Wash.) Code & Stat. §§ 5953, 5954, to create a preferred lien on ocean-going vessels owned in other states or countries for work done and materials furnished on the order of a contractor, which llen may be enforced at any time within three years, although such contractor has been paid in full by the owner without knowledge of any unpaid claims. ditch and tunnel there, becomes immaterial, since there is a finding that he never settled upon the land, cultivated or fenced it, or took possession of it, and no finding how long he continued the construction of the ditch or tunnel, or the amount of work in connection therewith. For aught that appears he may have abandoned it immediately. There is no evidence that the original grantees from the railroad company, or their successors in interest, ever sought to take advantage of the act of 1887, or ever applied to purchase the lands, or made payment to the United States, or did anything whatever before the beginning of this suit to indicate that they relied upon this statute. We agree with the supreme court of California that the plaintiff was not entitled, upon the showing of a mere right to purchase, to demand that its title be adjudged good and valid, and that the defendant had no estate or interest in the land, or A United States for the District of Wash that it should be enjoined from asserting any claim adverse to the plaintiff, or that ington to review a decree enforcing a lien it should recover possession of the land, for labor and materials furnished to a conwith the right of ousting the defendant tractor charged with the repair of a vesfrom the improvements which its predeces- sel. Reversed and remanded, with direc sors had made thereon. An inceptive right under the statute was an insufficient basis of recovery. A party cannot rest forever on such a right, but is required by the statute, before asserting it against innocent third parties, to take some steps to perfect it. The litigation seems to turn really upon the respective rights of the parties to the waters of San Dimas creek, and as defendant's predecessors first appro priated them, and the plaintiff shows no superior title, it cannot prevail against the ranch company. In view of the uncertain character of the finding that Heckenlively did, shortly after his purchase, enter upon the land and commence the construction of a ditch and tunnel thereon, we are unable to see how the case is affected by the fact [185]that, in July and August of the same year, the defendant entered upon the land and constructed their forebay or dam, and laid a 14-inch pipe in addition to the 12-inch pipe which Stowell had laid in 1883. express no opinion as to the possibility of the plaintiff maintaining a second action upon its patent since obtained, or how far this case may, if at all, operate as res judicata in that. There was no error in the decree of the Mr. Justice McKenna took no part in the disposition of this case. Submitted [No. 123.] December 17, 1902. Decided PPEAL from the District Court of the tions to dismiss the libel. Statement by Mr. Justice Brown: This was a libel in rem for materials, and also for work and labor, alleged to have been furnished by the libellants King and Winge in the repair of the steamship Roanoke, to certain contractors with the owners, who had full charge of the alteration and repair of the steamship. An intervening libel was also filed by one Fraser for labor and material furnished under the same conditions. The cases resulted in decrees for the libellants, from which the North American Transportation & Trading Company, owner of the steamship, appealed directly to this court, and the following facts were found: "The North American Transportation & Trading Company appeared as claimant and owner, and the vessel was released upon its stipulation. We "It admitted all the allegations of the libel except that the work was done on the credit of the ship, which it denied except that it admitted that libellants had acted under the belief that they had a lien by virtue of law. It then alleged its incorporation and existence under the laws of the state of Illinois, the residence there at all times of its president and general manager, its maintaining only agencies at Seattle and at other places in Alaska and Canada, and its enjoying a high credit. The Roanoke it alleged to be an ocean-going vessel, registered at Chicago, Illinois, under the navigation laws of the United States, with the name of "Chicago" painted on her stern. She was alleged to have been purchased by [187] claimant in 1898 on the Atlantic coast, and, Constitutional law-validity of state stat upon the Pacific coast since that time, emute creating lien on foreign vessels-in-ployed between Seattle and the mouth of NOTE.-On the validity of state the Yukon in the summer, and between San creating liens on vessels-see note to Baizley Francisco and southern ports in the winter. V. The Odorilla (Pa.) 1 L. R. A. 505. It was further alleged that the claimant THE ROANOKE. (See S. C. Reporter's ed. 185-199.) statutes Mr. Harold Preston submitted the cause for appellees. Messrs. Benton Embree and Clarence S. Preston were with him on the brief: had never given any order for the material | Fed. Cas. No. 2,717; The New York v. Rae, and labor described in the libel, and that 18 How. 223, 15 L. ed. 359; Hall v. De Cuir, these were furnished on the order of the 95 U. S. 485, 24 L. ed. 547; The Globe, 2 contractor, who, before the filing of the li- Blatchf. 427, Fed. Cas. No. 5,483; The Selah, bel and without any knowledge by claimant 4 Sawy. 40, Fed. Cas. No. 12,636; The Lyndof these unpaid claims, had been paid by hurst, 48 Fed. 839; Hughes, Admiralty, p. this claimant for these materials and labor 108. in full. It was alleged in conclusion that the lien claimed by libellants was claimed under §§ 5953 and 5954 of Ballinger's Code and Statutes of Washington, that such a lien was in this instance void, being in violation of the 8th section of the 1st article of the Constitution of the United States, conferring upon Congress the power to regulate commerce among the several states, was an illegal burden upon interstate commerce, and in violation also of the 14th article of the Constitution of the United States, as depriving claimant of its property without due process of law and without its equal protection, and was in violation of the 2d section of the 3d article of the Constitution conferring on the courts of the United States admiralty and maritime jurisdiction. "To the intervening libel of Fraser the same answer was made. "To each of these answers respectively the libellants and. intervening libellant excepted as insuflicient, and the whole of each, to constitute any answer or defense to the libel. "The exceptions were sustained, the claimant elected to stand on its answer, and a decree was entered against it and its stipulators for the whole sum claimed in the libels." Messrs. Frederick Bausman and Daniel Kelleher submitted the cause for appellant: Whatever encroachments of state law may be tolerated in commerce on land, commerce on sea is a subject even more exclusively within the national care. Baltimore & O. R. Co. v. Maryland, 21 Wall. 456, 470, 22 L. ed. 678, 683; Pullman's Palace Car Co. v. Pennsylvania, 141 U. S. 32, 35 L. ed. 620, 3 Inters. Com. Rep. 595, 11 Sup. Ct. Rep. 876. Hard as it is to conceive that the Federal government will ever permit the encroachment of state liens where both commerce and admiralty are concerned, it is altogether too hard to imagine that they will permit such liens to be unreasonable in themselves. The Belfast, 7 Wall. 624, 19 L. ed. 266. As regards the admiralty jurisdiction of the Federal government, such laws, whether reasonable in terms or not, are void as to vessels of other states, because wholly unnecessary and in their nature incompatible with the complete system of admiralty and its policy. The General Smith, 4 Wheat. 438, 4 L. ed. 609; Peyroux v. Howard, 7 Pet. 324, 8 L. ed. 700; The Belfast, 7 Wall. 624, 19 L. ed. 266; The Lottawanna, 21 Wall. 558, sub nom. Rodd v. Heartt, 22 L. ed. 654; The J. E. Rumbell, 148 U. S. 1, 37 L. ed. 345, 13 Sup. Ct. Rep. 498; The Chusan, 2 Story, 455, The laws of the state in which personal property is situated govern respecting the transfer of title to and liens thereon, even where the owner is a nonresident of the state. Walworth v. Harris, 129 U. S. 355, 32 L. ed. 710, 9 Sup. Ct. Rep. 340; Brown v. Smart, 145 U. S. 454, 36 L. ed. 773, 12 Sup. Ct. Rep. 958; Pullman's Palace Car Co. v. Pennsylvania, 141 U. S. 32, 35 L. ed. 619, 3 Inters. Com. Rep. 595, 11 Sup. Ct. Rep. 876; The Iris, 40 C. C. A. 301, 100 Fed. 104, 106; Green v. Van Buskirk, 5 Wall. 307, 18 L. ed. 599, 7 Wall. 139, 19 L. ed. 109. In those respects in which Congress has not exercised its power to regulate interstate and foreign commerce, state legislation is valid so long as it affects such commerce only indirectly or remotely. Kidd v. Pearson, 128 U. S. 1, 32 L. ed. 346, 2 Inters. Com. Rep. 232, 9 Sup. Ct. Rep. 6, and citations; Lake Shore & M. S. R. Co. v. Ohio, 173 U. S. 285, 43 L. ed. 702, 19 Sup. Ct. Rep. 465, and citations; Missouri, K. & T. R. Co. v. Haber, 169 U. S. 613, 42 L. ed. 878, 18 Sup. Ct. Rep. 488; Louisville & N. R. Co. v. Kentucky, 161 U. S. 677, 40 L. ed. 849, 16 Sup. Ct. Rep. 714; Re Rahrer, 140 U. S. 545, sub nom. Wilkerson v. Rahrer, 35 L. ed. 572, 11 Sup. Ct. Rep. 865. There seems to be no just ground for a distinction between commerce on land and commerce by water. Baltimore & O. R. Co. v. Maryland, 21 Wall. 456, 22 L. ed., 678; Sherlock v. Alling, 93 U. S. 99, 23 L. ed. 819. This court draws a distinction between the effect of taxation upon the instruments of interestate commerce, and the regulation of such commerce by other means. Sherlock v. Alling, 93 U. S. 99, 23 L. ed. 819; Missouri, K. & T. R. Co. v. Haber, 169 U. S. 613, 632, 42 L. ed. 878, 884, 18 Sup. Ct. Rep. 488; Louisville & N. R. Co. v. Kentucky, 161 U. S. 677, 701, 40 L. ed. 849, 16 Sup. Ct. Rep. 714: Pittsburg & S. Coal Co. v. Louisiana, 156 U. S. 590, 598, 599, 39 L. ed. 544, 548, 5 Inters. Com. Rep. 18, 15 Sup. Ct. Rep. 459. Compulsory pilotage laws of a state, while admitted to be regulations of commerce, are held valid so long as Congress refrains from legislating on the subject. Cooley v. Philadelphia Port Wardens, 12 How. 299, 320, 13 L. ed. 996, 1005; Huus v. New York & P. R. S. S. Co. 182 U. S. 392, 393, 45 L. ed. 1146, 1147, 21 Sup. Ct. Rep. 827; The China, 7 Wall. 53, 19 L. ed. 67; Ex parte McNiel, 13 Wall. 236, 20 L. ed. 771 624; Pacific Mail S. S. Co. v. Joliffe, 2 Wall. 450, 17 L. ed. 805. So long as Congress does not interpose to regulate the subject, the rights of materialmen furnishing necessaries to a vessel in her home port may be regulated in each state by state regulation. The Lottawanna, 21 Wall. 558, sub nom. Rodd v. Heartt, 22 L. ed. 654. There would be no reason or justice in exempting vessels owned by nonresidents, when employed within this state, from liabilities and burdens imposed upon vessels having resident owners. McRae v. Bowers Dredging Co. 86 Fed. 344, 350. Any law which discriminates in favor of nonresident shipowners is equally as obnoxious to the principles of justice and the requirements of fair trade as a law which discriminates against nonresident shipowners. The Robert Dollar, 115 Fed. 218, 221. A lien conferred by a state statute as incident to a maritime contract is, for all practical purposes, a maritime lien; and such a lien is cognizable in the admiralty. The J. E. Kumbell, 148 U. S. 1, 20, 37 L. ed. 345, 350, 13 Sup. Ct. Rep. 498; The Glide, 167 U. S. 606, 42 L. ed. 296, 17 Sup. Ct. Rep. 930; The Robert Dollar, 115 Fed. 218. It will not do to confound questions of jurisdiction with those of mere procedure. The Glide, 167 U. S. 612, 42 L. ed. 298, 17 Sup. Ct. Rep. 930. The changes made in the 12th admiralty rule by this court seem to evince a purpose to place vessels, both domestic and foreign, on an equal footing as regards the enforcement of liens, whether arising under the general maritime law or created by state statutes. The Robert Dollar, 115 Fed. 223; The Lottawanna, 21 Wall. 558, sub nom. Rodd v. Heartt, 22 L. ed. 654. The distinction between the effect in admiralty of local laws which are consistent with the principles of the general maritime law, and those which are inconsistent there with, is upheld in Workman v. New York, 179 U. S. 552, 45 L. ed. 314, 21 Sup. Ct. Rep. 212. Mr. Justice Brown delivered the opinion of the court: This case is appealed directly from the district court to this court under that clause of §5 of the court of appeals act which permits such appeal "in any case in which the Constitution or law of a state is Jality of the law of Washington, under which *By that law (2 Ballinger's Codes and[193] Statutes, §§ 5953 and 5954)— "5953. All steamers, vessels, and boats, their tackle, apparel, and furniture, are liable "3. For work done or material furnished "Demands for these several causes con- "5954. Such liens may be enforced in all cases of maritime contracts or service by a suit in admiralty, in rem, and the law regulating proceedings in admiralty shall gov ern in all such suits; and in all cases of contracts or service not maritime by a civil action in any district court of this territory." In this connection the following propositions may be considered as settled: 1. That by the maritime law, as administered in England and in this country, a lien is given for necessaries furnished a foreign vessel upon the credit of such vessel (The General Smith, 4 Wheat. 438, 4 L. ed. 609; The Grapeshot, 9 Wall. 129, sub nom. The Grapeshot v. Wallerstein, 19 L. ed. 651; Gen. Admiralty Rule 12); and that in this particular the several states of this Union are treated as foreign to each other. The General Smith, 4 Wheat. 438, 4 L. ed. 609; The Kalorama, 10 Wall. 204, 212, sub nom. Pendergast v. The Kalorama, 19 L. ed. 943. 2. That no such lien is given for necessaries furnished in the home port of the vessel or in the port in which the vessel is owned, registered, enrolled, or licensed, and the remedy in such case, though enforceable[194] Lottawanna, 21 Wall. 558, sub nom. Rodd in the admiralty, is in personam only. The v. Heartt, 22 L. ed. 654; The Edith, 94 U. S. 518, sub nom. Poole v. Tyler, 24 L. ed. 167. This is a distinct departure from the Continental system, which makes no account of the domicil of the vessel, and is a relic of the prohibitions of Westminster Hall against the court of admiralty, to the principle of which this court has steadily claimed to be in contravention of the Constitution of the United States." [26 Stat. at L. 828, chap. 517, U. S. Comp. Stat. 1901, p. 549.] No additional significance is given to the appeal by certain questions certified by the district court, as the power to certify is only given in cases appealed upon questions of jurisdiction. But as the case is properly before us upon direct ap-adhered. peal from the district court; we proceed to 3. That it is competent for the states to dispose of the question of the constitution-create liens for necessaries furnished to do mestic vessels, and that such liens will be | Ben. 21, Fed. Cas. No. 13,270; The Mar- The question involved in this case, how ever, is whether the states may create such liens as against foreign vessels (vessels owned in other states or countries), and under such circumstances as would not authorize a lien under the general maritime law. The question is one of very considerable importance, as it involves the power of each state, which a vessel may visit in the course of a long voyage, to impose liens under wholly different circumstances and upon wholly different conditions. In the case under consideration the vessel was owned by an Illinois corporation, enjoying a high credit, and maintaining agencies at Seattle and at other places in Alaska and Canada. The Roanoke was an ocean-going vessel, registered at Chicago under the navigation laws of the United States, with the name "Chicago" painted on her stern, although she was engaged in trade upon the Pacific coast between Seattle and the mouth of the Yukon in summer, and between San Francisco and southern ports in winter. Neither the owner nor master nor other officers of the vessel had given an order for the material and labor set forth in the libel, which were furnished upon the order of [105] a contractor, who, before the filing of the libel and without any knowledge by the owner of these unpaid claims, had been paid in full for these claims. Although this court has never directly decided whether materials and labor furnished by workmen or subcontractors constitute a lien upon a vessel, in other words, whether the contractor can be regarded as an agent of the vessel in the purchase of such labor and materials, there is a general consensus of opinion in the state courts and in the inferior Federal courts that labor and materials furnished to a contractor do not constitute a lien upon the vessel, unless at least notice be given to the owner of such claim before the contractor has received the sum stipulated by his contract. Smith v. The Eastern Railroad, 1 Curt. C. C. 253, Fed. Cas. No. 13,039; Southwick v. The Clyde, 6 Blackf. 148; Hubbell v. Denison, 20 Wend. 181; Burst v. Jackson, 10 Barb. 219; The Whitaker, 1 Sprague, 229, 282, Fed. Cas. Nos. 17,524, 17,525; Harper v. The New Brig, Gilpin, 536, Fed. Cas. No. 6,090; Ames v. Swett, 33 Me. 479; Squire v. 100 Tons of Iron, 2 The injustice of permitting such claims to be set up is plainly apparent. The mas ter is the agent of the vessel and its owner in more than the ordinary sense. During the voyage he is in fact the alter ego of his principal. He is intrusted with an uncontrolled authority to provide for the crew, and for the preservation and repair of the ship. He engages the cargoes, receives the freight, hires and pays his crew, and is intrusted, perhaps for years, with the command and disposition of the vessel. With full authority to bind the vessel, his position is such that it is almost impossible for him to acquaint himself with the laws of each individual state he may visit, and he has a right to suppose that the general maritime law applies to him and his ship, wherever she may go, unhampered by laws which are mainly intended for local application, or for domestic vessels. Local laws, such as the one under consideration, ordinarily protect the ship by requiring notice of the claim to be filed in some public office, limiting the time to a few weeks or months within which the laborer or subcontractor may proceed against her, requiring notice to be given of the claim, before the contractor himself has been paid, and limiting his recovery to the amount remaining un-[196] paid at the time such notice is received. The statute of Washington, however, provides for an absolute lien upon the ship for work done or material furnished at the request of the contractor or subcontractor, and makes no provision for the protection of the owner in case the contractor has been paid the full amount of his bill before notice of the claim of the subcontractor is received. The finding in this case is that the contractor, who had agreed, in consonance with the usual course of business, to make the repairs upon this vessel, had been paid in full by the claimant. The injustice of holding the ship under the circumstances is plainly manifest. Not only is the statute in question obnoxious to the general maritime law in declaring every contractor and subcontractor an agent of the owner, but it establishes a new order of priority in payment of liens, abolishes the ancient and equitable rule regarding "stale claims," and permits the assertion of a lien at any time within three years, regardless of the fact that the vessel may have been sold to a bona fide purchaser, not only without notice of the claim, but without the possibility of informing himself by a resort to the public records. It also gives, or at least creates the presumption of, a lien, though the materials be furnished upon the order of the owner in person. No opinion upon this subject can afford to ignore the admirable discussion of Mr. Justice Story in the case of The Chusan, 2 Story, 455, Fed. Cas. No. 2,717, in which he refused to apply to a Massachusetts vessel a law of the state of New York, requiring a lien for supplies to be enforced before the vessel left the state: this principle it was held that a law of Louisiana excluding colored passengers "This statute is, as I conceive, perfectly from the cabin set apart for the use of[198] constitutional, as applied to cases of repairs whites during the passage of steamboats of domestic ships, that is, of ships belong down the Mississippi, was a regulation of ing to the ports of that state. But interstate commerce, and therefore unconin cases of foreign ships and supplies fur- stitutional. To the same effect is Sinnot v. nished to them the jurisdiction of the courts Davenport, 22 How. 227, 16 L. ed. 243. In of the United States is governed by the Con- the subsequent cases of Louisville, N. 9. & stitution and laws of the United States, and T. R. Co. v. Mississippi, 133 U. S. 587, 33 is in no sense governed, controlled, or lim- L. ed. 784, 2 Inters. Com. Rep. 801, 10 Sup. ited by the local legislation. For Ct. Rep. 348, and Plessy v. Ferguson, 163 myself, I can only say that during the U. S. 537, 41 L. ed. 256, 16 Sup. Ct. Rep. whole of my judicial life I have never up 1138, state laws requiring separate railway to the present hour heard a single doubt carriages for the white and colored races breathed upon the subject." To the same were sustained upon the ground that they effect is The Lyndhurst, 48 Fed. 839. applied only between places in the same [197] *While no case involving this precise ques- state. tion seems to have arisen in this court, we have several times had occasion to hold that where Congress has dealt with a subject within its exclusive power, or where such exclusive power is given to the Federal courts, as in cases of admiralty and maritime jurisdiction, it is not competent for states to invade that domain of legislation, and enact laws which in any way trench upon the power of the Federal government. Cases arising in other branches of the law furnish apt analogies. The principle is stated in a nutshell by Chief Justice Marshall in Sturges v. Crowninshield, 4 Wheat. 122, 193, 4 L. ed. 529, 548: "But it has never been supposed that this concurrent power of legislation extended to every possible case in which its exercise by the states has not been expressly prohibit ed. The confusion resulting from such a practice would be endless. . That whenever the terms in which a power is granted to Congress, or the nature of the The following cases are also to the same power, required that it should be exercised general effect: Degant v. Michael, 2 Ind. exclusively by Congress, the subject is as 396; State v. Pike, 15 N. H. 83; Lynch v. completely taken from the state legislatures Clarke, 1 Sandf. Ch. 583, 644; Jack v. Maras if they had been expressly forbidden to tin, 12 Wend. 311; Ex parte Hill, 38 Ala. act on it." This was said of a bankrupt 429, 450; People v. Fonda, 62 Mich. 401, 29 law of New York which assumed to dis- N. W. 26. Although it is equally true that charge the debtor from all liability for where Congress, having the power, has exdebts previously contracted, notwithstand-ercised it but incidentally, and obviously ing the Constitution had vested the power with no intention of covering the subject, in Congress of establishing uniform laws on In the very recent case of Easton v. Iowa, 188 U. S. 220, ante, 452, 23 Sup. Ct. Rep. 288, it was held that a state law punishing presidents of banks receiving deposits of money at a time when the bank was insolvent, and when such insolvency was known to them, was unconstitutional as applied to national banks whose operations were gov erned exclusively by acts of Congress. Said Mr. Justice Shiras: "But we are unable to perceive that Congress intended to leave the field open for the states to attempt to promote the welfare and stability of national banks by direct legislation. If they had such power it would have to be exercised and limited by their own discretion, and confusion would necessarily result from control, possessed and exercised by two independent authorities." See also Farmers & M. Nat. Bank v. Dearing, 91 U. S. 29, 23 L. ed. 196; M'Culloch v. Maryland, 4 Wheat. 425, 4 L. ed. 606. the subject of bankruptcy. It was held that the states may supplement its legislation the states had a right to pass bankrupt by regulations of their own not inconsistent laws until the power had been acted upon with it. Reid v. Colorado, 187 U. S. 137, by Congress, though the law of New York ante, 108, 23 Sup. Ct. Rep. 92. discharging the debtor from liability was held to be void as impairing the obligation of prior contracts within the meaning of the Constitution. In Hall v. DeCuir, 95 U. S. 485, 498, 24 L. ed. 547, 551, it was said that, inasmuch as interstate commerce is regulated very largely by congressional legislation, it followed that such legislation must supersede all state legislation upon the same subject, and, by necessary implication, prohibit it, except in cases where the legislation of Congress manifests an intention to leave some particular matter to be regulated by the several states, as, for instance, in the case of pilotage. Cooley v. Philadelphia Port Wardens, 12 How. 299, 13 L. ed. 996. Upon Bearing in mind that exclusive jurisdiction of all admiralty and maritime cases is vested by the Constitution in the Federal courts, which are thereby made judges of the scope of such jurisdiction, subject, of course, to congressional legislation, the statute of the state of Washington, in so far as it attempts to control the administration of [199} the maritime law by creating and superadding conditions for the benefit of a particular class of creditors, and thereby depriving the owners of vessels of defenses to which they would otherwise have been entitled, is an unlawful interference with that jurisdic tion, and to that extent is unconstitutional and void. The decree of the District Court is there |