Opinion of the Court. to tide lands, its donation to him is to be construed as any other grant of the government, and no unexpressed and unsuggested intention should be attributed to Congress certainly no intention to make the people of the State of Washington, who otherwise would receive these tide lands for their general benefit, suffer by reason of his neglect to properly assert his claim to lands in the State of California. There is, therefore, nothing in this matter of the Valentine scrip to take the case out of the rule laid down in Shively v. Bowlby. Reliance is also placed on article 17, section 2, of the constitution of the State of Washington, which reads: "The State of Washington disclaims all title in and claim to all tide, swamp, and overflowed lands patented by the United States; provided, the same is not impeached for fraud." In respect to this it is enough to say that these lands were not patented. It is doubtless true, as said by this court in Stark v. Starrs, 6 Wall. 402, 418, that "the right to a patent once vested is treated by the government when dealing with the public lands, as equivalent to a patent issued." But here there was no right to a patent. The entry in the local land office, and the receipt issued by the local land officers, were unauthorized acts, and gave no right to a patent; and it cannot be supposed that the State of Washington, when it excluded from its claim of title lands which the government had in the due administration of its land department disposed of by a patent, meant thereby to exclude every tract for which a local land officer might wrongfully issue a receiver's receipt. These are all the matters involved in this case. We see no error in the ruling of the Circuit Court, and its decree is Affirmed. Opinion of the Court. BAER v. MORAN BROTHERS COMPANY. ERROR TO THE SUPREME COURT OF THE STATE OF WASHINGTON. No. 683. Argued April 18, 19, 1894. Decided April 20, 1894. This court cannot take judicial notice of the nature and extent of tide lands or mud flats. Land alternately covered and uncovered by the tide is strictly within the description of tide lands, and is covered by the settled rule in respect to such lands. Mann v. Tacoma Land Company, ante, 273, followed. THE case is stated in the opinion. This case was argued with Mann v. Tacoma Land Company, ante, 273, where will be found the argument of Mr. Mitchell for the plaintiff in error. Mr. John H. Mitchell, (with whom were Mr. Beriah Brown, Jr., and Mr. M. L. Baer on the brief,) for plaintiff in error. Mr. W. C. Jones, Attorney General of the State of Washington, filed a brief on behalf of the State, intervenor. Mr. Frederic D. McKenney for Dearborn, intervenor. MR. JUSTICE BREWER delivered the opinion of the court. This case comes before us on error to the Supreme Court of Washington. The questions are mainly similar to those in the case of Mann v. Tacoma Land Company, just decided. The plaintiff described the land in his complaint as "at the time of its selection by said plaintiff unoccupied and unappropriated public land of the United States not mineral, in this, that the said tract of land was situated in the Territory of Washington, was a portion of the tide flats, covered and uncovered by the ebb and flow of the tide, was uncovered at Opinion of the Court. ordinary low tide and was covered with water at ordinary high tide, and had never been set apart by the United States for any particular use." This shows that the land at the time of its entry was, strictly speaking, tide lands, and, with this as the sole description, there would be nothing to distinguish the case from the one just decided. There is, however, this further description: "Beginning at a point 688 feet south and 660 feet west of the east one-fourth post of sec. 6, t'p 24 N., R. 4 E., W. M., thence west 150 feet, thence south 210 feet, thence east 150 feet, thence north 210 feet to place of beginning, being the premises covered by Moran Brothers Company's foundry and machine shops." Upon this plaintiff contends that the premises are not to be taken as a part of the shore or tide lands bordering on navigable water, inasmuch as they are shown to be devoted to manufacturing uses; that this court will take judicial knowledge of what are known as "mud flats," lying on and adjacent to the waters of Puget Sound, and that the land in dispute is a part of a large tract of over 3000 acres of such "mud flats," extending for a distance of from two and onehalf miles in length to three miles in width, on the outskirts of a bay on Puget Sound, and near the city of Seattle, as shown by the official maps of the United States Coast and Geodetic Survey. But the averment of the complaint is that the land was unoccupied at the time of its selection by the plaintiff, and its condition as a part of the shore or tide lands. is not changed by the magnitude of the surrounding tract which, covered and uncovered by the flow and ebb of the tide, exists between the upland and navigable waters, or the use to which it may subsequently be put. We do not understand that we can take judicial notice of the nature and extent of the tide lands or “mud flats" in the vicinity of this particular tract. Even if we could, or if the area thereof was shown to be as great as is stated by counsel in the brief, it would not change the fact that the land thus alternately covered and uncovered and between the dry upland and the navigable water is land which may be used in facilitating approach to the navigable waters from the upland, Statement of the Case. and is strictly within the description of "tide lands," and covered by the rule in respect to such lands. We see nothing to distinguish this case from the one just decided, and, therefore, the judgment of the Supreme Court of the State of Washington is Affirmed. BRENNAN v. TITUSVILLE. ERROR TO THE SUPREME COURT OF THE STATE OF PENNSYLVANIA. No. 902. Submitted January 5, 1894. - Decided April 30, 1894. An ordinance requiring agents soliciting orders on behalf of manufacturers of goods to take out a license and pay a tax therefor, made by a municipal corporation under authority conferred by a statute of the State, granting to such corporations power to levy and collect license taxes on hawkers, peddlers and merchants of all kinds, is an exercise, not of the police power, but of the taxing power; and when it is enforced against an agent, sent by a manufacturer of goods in another State to solicit orders for the products of his manufactory, it imposes a tax upon interstate commerce, in violation of the provisions of the Constitution of the United States. This court is not bound by the decision of the highest court of the State in which such a tax is authorized and imposed, that its authorization and imposition are an exercise of the police power, and not of the taxing power. ON May 12, 1890, plaintiff in error was convicted in the court of the city recorder of the city of Titusville, Pennsylvania, of a violation of an ordinance, entitled "An ordinance to provide for the levy and collection for general revenue purposes of annual license taxes in the city of Titusville," and sentenced to pay a fine of $25 and costs. From that sentence he appealed to the Court of Common Pleas of Crawford County. In that court the case was tried upon the following agreed statement of facts: "1. J. A. Shephard is a manufacturer of picture frames and maker of portraits, residing in Chicago, in the State of Illinois, of which State he is a citizen and in which city he has his manufactory and place of business. VOL. CLIII-19 Statement of the Case. "2. In the prosecution of said business he employs agents who, under his direction, solicit orders for pictures and picture frames in the State of Pennsylvania and in other States of the Union, by going personally to residents and citizens of said State of Pennsylvania and other States and exhibiting samples of his pictures and frames, going, when necessary, from house to house in said State of Pennsylvania and other States. "3. The defendant, J. W. Brennan, was an agent of the said J. A. Shephard, employed by him to travel and solicit orders for said pictures and frames in the manner stated, upon a salary and also upon commission upon the amount of his sales, at the time of his arrest, May 25, 1889, upon a warrant issued by the authorities of the city of Titusville, in the State of Pennsylvania. "4. Upon receiving orders for pictures and picture frames, the agents of the said J. A. Shephard forwarded the same to him at Chicago, in the State of Illinois, where the goods were made, and from there shipped by said J. A. Shephard to the purchasers in Titusville, in the State of Pennsylvania, by railroad freight and express, and the price of said goods was collected and forwarded by the express companies and sometimes by the agents to said Shephard, at Chicago, in the State of Illinois. J. W. Brennan, the agent employed by J. A. Shephard, was engaged in conducting the business in the manner stated at the time of his arrest, May 25, 1889. The said J. W. Brennan, at the time of his arrest and before, had not been otherwise employed than as stated, and was acting solely for the said Shephard. "5. The city of Titusville had enacted an ordinance, in force at the date of the arrest of said J. W. Brennan, which in the twelfth section thereof provides in words and figures as follows: "That all persons canvassing or soliciting within said city orders for goods, books, paintings, wares, or merchandise of any kind, or persons delivering such articles under orders so obtained or solicited, shall be required to procure from the mayor a license to transact said business, and shall pay to the said treasurer therefor the following sums, according to |