quoted in part, as follows (italicized as in | exemption, the court considered the applicathe reports):

"The court said: "They' (state inspection laws) 'form a portion of the immense mass of legislation which embraces everything within the territory of a state not surrendered to the general government; all which can be most advantageously exercised by the states themselves. Inspection laws, quarantine laws, health laws of every description, as well as laws for regulating the internal commerce of a state, and those which respect turnpike roads, ferries, etc., are parts of this mass.""

ion of the commerce clause of the Constitution,* and decided that proposition against the corporation. In doing so the court referred to the passage in the opinion of Chief Justice Marshall in Gibbons v. Ogden, which we have already quoted, and also referred approvingly to the opinions in Conway v. Taylor, 1 Black, 603, 17 L. ed. 191, and Fanning v. Gregoire, 16 How. 524, 14 L. ed. 1043.

In Gloucester Ferry Co. v. Pennsylvania (1885) 114 U. S. 196, 29 L. ed. 158, 1 Inters. Com. Rep. 382, 5 Sup. Ct. Rep. 826, the facts were these: The ferry company was incorporated and domiciled in New Jersey, carried on a ferry business over the Delaware river between Camden, New Jersey, and Philadelphia. The situs of its boats and property was in New Jersey; but the company owned in Philadelphia a wharf or slip at which its boats landed. The taxing officers of the state of Pennsylvania assessed against the corporation, on the ground that it was doing business within the state, a tax upon the estimated value of its capital stock, and the validity of this tax was the question decided. After referring to the reasoning of the su

After referring to Fanning v. Gregoire, and citing the passage which we have previously quoted as affirming the doctrine that a state had a right to grant a ferry license across a navigable river, being the boundary between the granting, and another, state, the question of the operation of the commerce clause of the Constitution of the United States was passed on. The court declared (p. 633, L. ed. p. 203), that there was no repugnancy to the commerce clause of the Constitution in the mere licensing by a state of a ferry; that the regularity and nature of the business of ferrying was such that the granting of a priv-preme court of Pennsylvania affirming the ilege on the subject did not regulate interstate commerce, and therefore, despite an exclusive ferry privilege, interstate commerce was free from restraint by the state. In conclusion, however, the court pointed out (p. 634, L. ed. p. 203), that undoubtedly if in the grant of a ferry privilege there were contained provisions repugnant to the commerce clause, it would be the duty of the court to prevent their enforcement.

validity of the tax, in which it was pointed out that the company did business in the state because it landed in the state of Pennsylvania, and there in part carried on its ferry business, the court said (p. 203, L. ed. p. 161, Inters. Com. Rep. p. 385, Sup. Ct. Rep. p. 827):

"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, indeed is a part of, their transportation across the Delaware river from New Jersey. Without it that transportation would be impossible. Transportation implies the taking up of persons or property at some point and putting them down at another. A tax, therefore, upon such receiving 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.

In Wiggins Ferry Co. v. East St. Louis (1882) 107 U. S. 365, 27 L. ed. 419, 2 Sup. Ct. Rep. 257, the case was this: The ferry company was in the enjoyment of a ferry franchise to operate across the Mississippi river between Illinois and Missouri. It was domiciled in Illinois, that state being the situs of its boats and other property. This property was taxed in Illinois as other property, and there was also levied upon the company a license tax for the privilege of carry ing on the ferry, the validity of which last exaction was the question which the case pre- "It matters not that the transportation is sented. The collection of the license charge made in ferryboats, which pass between the was resisted on the ground that the corpora- states every hour of the day. The means of tion was exempt by the contract arising from transportation of persons and freight bethe grant of its franchise from the payment tween the states does not change the charof a license charge, and that if not, the exac-acter of the business as one of commerce, nor tion of the license tax for the privilege of does the time within which the distance beferrying across a navigable river lying between the states may be traversed. Comtween two states was repugnant to the commerce and other clauses of the Constitution of the United States not necessary to be specially referred to.

merce 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 After disposing adversely to the corpora- for that purpose, as well as the purchase, tion of the contention concerning the alleged 'sale, and exchange of commodities. The

power to regulate that commerce, as well as dom from such imposition does not, of commerce with foreign nations, vested in course, imply exemption from reasonable Congress, is the power to prescribe the rules charges, as compensation for the carriage of by which it shall be governed,—that is, the persons, in the way of tolls or fares, or from conditions upon which it shall be conducted; the ordinary taxation to which other propto determine when it shall be free and when erty is subjected, any more than like freedom subject to duties or other exactions. The of transportation on land implies such ex power also embraces within its control all emption. How conflicting legisla the instrumentalities by which that com- tion of the two states on the subject of fermerce may be carried on, and the means by ries on waters dividing them is to be met which it may be aided and encouraged." and treated is not a question before us for consideration. Pennsylvania has never attempted to exercise its power of establishing and regulating ferries across the Delaware river. Any one, so far as her laws are concerned, is free, as we are informed, to estab lish such ferries as he may choose. No license fee is exacted from ferrykeepers. She merely exercises the right to designate the places of landing, as she does the places of landing for all vessels engaged in commerce. The question, therefore, respecting the tax in the present case is not complicated by any action of that state concerning ferries. However great her power, no legislation on her

After reviewing and applying many prior adjudications of this court, in which the want of power of the several states to burthen interstate commerce had been pointed out, in its various aspects, the court considered the statement of Mr. Chief Justice Marshall in Gibbons v. Ogden, which we have previously quoted, and observed (p. 215, L. ed. p. 166, Inters. Com. Rep. p. 390, Sup. Ct. Rep. p. 834):

terstate commerce which is involved in the transportation of persons and freight, whatever be the instrumentality by which it is carried on."

"The power of the states to regulate matters of internal police includes the establishment of ferries as well as the construction of roads and bridges. In Gibbons v. Ogden, Chief Justice Marshall said that laws re-part can impose a tax on that portion of inspecting ferries, as well as inspection laws, quarantine laws, health laws, and laws regulating the internal commerce of the states, are component parts of an immense mass of legislation, embracing everything within the The tax imposed by the state of Pennsyl limits of a state not surrendered to the gen-vania was decided to be void, as being repug eral government; but in this language he nant to the commerce clause of the Constituplainly refers to ferries entirely within the tion. state, and not to ferries transporting passengers and freight between the states and a foreign country."

Although no reference was made in the opinion to Fanning v. Gregoire, Conway v. Taylor, and Wiggins Ferry Co. v. East St. Louis, in concludnig the opinion it was said (p. 217, L. ed. p. 167, Inters. Com. Rep. p. 390, Sup. Ct. Rep. p. 835):

"It is true that, from the earliest period in the history of the government, the states have authorized and regulated ferries, not only over waters entirely within their limits, but over waters separating them; and it may be conceded that in many respects the states can more advantageously manage such interstate ferries than the general government; and that the privilege of keeping a ferry, with a right to take toll for passengers and freight, is a franchise grantable by the state, to be exercised within such limits and under such regulations as may be required for the safety, comfort, and convenience of the public. Still the fact remains that such a ferry is a means, and a necessary means, of commercial intercourse between the states bordering on their dividing waters, and it must, therefore, be conducted without the imposition by the states of taxes or other burdens upon the commerce between them. Free

In Covington & C. Bridge Co. v. Kentucky, 154 U. S. 204, 38 L. ed. 962, 4 Inters. Com. Rep. 649, 14 Sup. Ct. Rep. 1087, a law of the state of Kentucky regulating the tolls to be charged by a bridge company operating a bridge across the Ohio river between Kentucky and Ohio came under review. After an extended consideration of the previous cases, with one exception, including the cases to which we have previously referred, it was decided that, as the bridge was over a navi. gable stream between two states, the power to regulate the tolls thereon was in Congress, and therefore the state regulation was void.

The position of the parties as to the cases which we have reviewed is this: The county insists that the statement in Gibbons v. Ogden, that the establishment of ferries was within the reserved powers of the states, and the rulings in Fanning v. Gregoire, Conway v. Taylor, and Wiggins Ferry Co. v. East St. Louis, affirmatively settle that a state may establish ferries over a navigable river, the boundary between two states, and license the same, and that doing so is not only not repugnant to the commerce clause of the Constitution of the United States, but is in consonance therewith, since the power as to ferries was reserved to the states, and not delegated to the national government. The

466

Gloucester Ferry Case, it is said, rested upon | have with them." New York v. Starin, 106 the nature of the particular tax imposed by N. Y. 11, 12 N. E. 631; Broadnax v. Baker, the state of Pennsylvania, and that the case 94 N. C. 675, 55 Am. Rep. 633. It proceeds may hence not be considered as overruling at regular intervals, and, growing out of the the previous cases, not only because it did local necessities and the public interest in not expressly refer to them, but also because its operation, is subject to local control, and some expressions found in the opinion which at common law the exclusive franchise to we have cited are construed as substantially operate a ferry within designated limits affirming the right of the state to regulate might be conferred upon a particular person and license a ferry like the one here in ques- or persons. In a strict sense the ferry busi tion. On the other hand, the corporation ness is confined to the transportation of perurges that the rulings in Fanning v. Gregoire sons with or without their property, and a and Conway v. Taylor proceeded upon a mis- ferryman carrying on only a ferry business conception and partial view of the language is bound to transport in no other way. New of Chief Justice Marshall in Gibbons v. Og-York v. Starin, 106 N. Y. 11, 12 N. E. 631; den. That language, it is insisted, when the Wyckoff v. Queens County Ferry Co. 52 N. sentences which immediately precede the Y. 32, 11 Am. Rep. 650. passage quoted in Fanning v. Gregoire and Conway v. Taylor, are considered, clearly demonstrates that the Chief Justice was referring to the power of the states to license and control ferries on streams of a local character, and this, it is said, is demonstrated by the statement on the subject in the Gloucester Ferry Case. The case of Wiggins Ferry Co. v. East St. Louis, it is argued proceeded not upon the right of the state over the ferry, but upon its power to tax property whose situs was within its jurisdiction, and this was the view adopted by the court below. The Gloucester Ferry Case, it is urged, did not proceed upon the nature of the tax, but upon the want of power in the state of Pennsylvania to exert its control over a ferry crossing a river which was a boundary between two states, so as in effect to burthen the carrying on of interstate commerce. And that case, it is further insisted, therefore qualifies, if it does not specifically overrule, the earlier cases.

We do not think, however, that for the purposes of this case we need enter into these contentions, because we consider that in any view which may be taken of the previous cases, each and all of them are conclusive of this case without reference to any real or supposed conflict between them.

Indeed, the essential distinction between a ferry in the restricted and legal signification of that term and transportation as such, constituting interstate commerce, was pointedly emphasized in a passage from the opinion in Conway v. Taylor, 1 Black, 603, 17 L. ed. 191, which we have previously quoted, and the distinction between the two was necessarily involved, if it may not be said to have been controlling, in the decision of that case

The difference between a ferry in its true sense and transportation of the character of that now under review is shown in the case of New York v. New England Transfer Co. 14 Blatchf. 159, Fed. Cas. No. 10,197. In that case a boat was operated from Jersey City in New Jersey to Mott Haven in New York, and from Mott Haven to Jersey City. In this boat, by means of tracks, railroad cars, both passenger and freight, were run and carried under contract with the railroad company for the purpose of further transportation. The contention was that the operation of this boat constituted the running of a ferry, and therefore to so operate it required a ferry license from the proper authority of the city of New York. The court (Shipman, J.), whilst not denying the power of the city of New York to require a license for a ferry operating over the route in question, held that the use of the boat in the manner specified was not the operation of a ferry. After pointing out the similarity be tween bridges and ferries, and directing at tention to Proprietors of Bridges v. Hoboken Land & Improv. Co. 1 Wall. 116, 17 L. ed. 571, in which it was held that a mere railroad bridge, utilized for the purpose of

First. None of the cases, whatever view may be taken of them, import power in a state to directly control interstate commerce. Conceding, arguendo, that the police power of a state extends to the establishment, regulation, and licensing of ferries on a navigable stream, being the boundary between two states, none of the cases justify the proposition that such power embraces transporta-transporting cars across a navigable river, tion by water across such a river which does not constitute a ferry in a strict technical sense. In that sense "a ferry is a continuation of the highway from one side of the water over which it passes to the other, and is for transportation of passengers or of travelers with their teams and vehicles and such other property as they may carry or

did not infringe an exclusive right to maintain a bridge for general purposes theretofore granted by state authority, and demonstrating the identity in principle between the case before it and that case, said (p. 167):

"The reasoning which denies that a railroad bridge is an interference with an ex

697.

carry on a ferry to make application for such license. But power was conferred upon the county to withhold the grant of a license in a particular case if deemed best, and to grant it, preferably, to a citizen of the state of Illinois; and the acceptance of the license imposed the absolute obligation upon the applicant to carry on a technical ferry business, to operate at designated hours during the day and during the entire night. In other words, the law under which license was required not only subjected the applicant for the license to discriminatory provisions, but in addition compelled the licensee, if he desired to carry on a purely interstate commerce business, to conduct a general ferry business. However valid these conditions may be when applied to a ferry business in the restricted sense, under the assumption which we have indulged in, arguendo, that the state had the power to regulate a ferry upon a navigable stream forming the bound

clusive right theretofore granted to build an ordinary bridge, applies with almost equal force to the question, whether a ferry franchise is interfered with by a ferry which is designed for the transportation of railroad cars only. The boat of the defendants is provided with two railroad tracks, which prevent the entrance or egress of ordinary vehicles, and also of foot passengers, except as they are transported in cars which run upon the railroad tracks. The boat is exclusively used for the transportation of railroad cars, in connection only with the arrival of trains. It is impossible to transport ordinary vehicles upon the boat, it is impracticable to transport foot passengers, except as they are conveyed to the boat in cars. The whole arrangement of boat and docks is for the ingress and egress of railroad cars, and not for the accommodation of anything else. The ferry is a part of a continuous through railroad line from places north and east of the city of New York, to places south and south-ary between two states, it is obvious that the west of that city, and the trips of the boat are dependent upon the arrival of through railroad trains.

"Such a ferry is unlike an ordinary ferry for the transportation across a river of persons, animals, and freight, at intervals more or less regular, for fare or toll."

conditions to which we have alluded were*illegal because a direct burden upon interstate commerce was made a condition precedent to the doing of business of that character.

Because we have, arguendo, rested our conclusion in this case upon the assumption that the respective states have the power to regulate ferries over navigable rivers constituting

understood as deciding that that doctrine, which undoubtedly finds support in the opinions announced in Fanning v. Gregoire and Conway v. Taylor, has not been modified by the rule subsequently laid down in the Gloucester Ferry and the Covington Bridge Cases. As this case has not required us to enter into those considerations we have not done so.

Affirmed.

(192 U. S. 363) GEORGE C. THOMAS, Piff. in Err.,

v.

Second. As we conclude from the considerations previously expressed that the trans-boundaries between states, we must not be portation of railroad cars-whether loaded or unloaded-across the Mississippi river at the point in question was not the maintenance of a ferry in the proper sense of that term, and that such business was essentially interstate commerce, the only question remaining for decision is, Did the county have the power to require the obtaining of a license by the company as a prerequisite to the carrying on of such interstate commerce, and to impose the penalties sued for because a license had not been obtained? In examining this question we need not stop to determine how far, if at all, a state may, under its general police power, require the taking out of a license for the carrying on of the business of interstate commerce to the extent necessary to enable the state or its subdivisons to exercise such supervision as may be required for the safety of life and property. This results because, even conceding, arguendo, such power, we think it clear that such conditions were attached to the obtaining of a license in this case as relieved the company from the duty of complying with the requirements of the law under which liability is here asserted. That liability is contained in chapter 55 of the Revised Laws of Illinois, in force in 1874. By this

UNITED STATES. Constitutional law-stamp tax on memorandum of sale of stock not a direct tax.

The stamp tax on a memorandum or contract of sale of a certificate of stock, Imposed by the act of Congress of June 13, 1898 (30 Stat. at L. 448, chap. 448), is not unconstitutional as a direct tax on property, which, under U. S. Const. art. 1, § 2, cl. 3, must be apportioned according to the census, but falls within the class of duties, imposts, and excises which, by 8, cl. 1, of that article, are required to be uniform throughout the United States.

[No. 43.]

ary 23, 1904.

law authority was conferred upon the county Argued December 4, 1903. Decided Febru to grant a ferry license, and it was made the duty of a person or corporation desiring to 24 S. C.-20.

U. S. Comp. St. 1901, p. 2286.

*470

698.

*370

IN

forbidden, without the consent of Congress, to "lay any duty of tonnage."

And these two classes, taxes so called, and

ERROR to the Circuit Court of the United States for the Southern District of New York to review a conviction for selling a certificate of stock without attaching "duties, imposts, and excises," apparently the requisite revenue stamps to the memo-embrace all forms of taxation contemplated randum of sale.

Affirmed.

See same case below, 115 Fed. 207.

by the Constitution. As was observed in Pollock v. Farmers' Loan & T. Co. 157 U. S. 429, 557, 39 L. ed. 759, 810, 15 Sup. Ct. Rep. 673, 680: "Although there have been from time to time intimations that there might be some tax which was not a direct tax nor included under the words 'duties, imposts, and excises,' such a tax for more than one hundred years of national existence has as yet remained undiscovered, notwith

Statement by Mr. Chief Justice Fuller: George C. Thomas was indicted for violation of the internal revenue laws of the United States in that, being a broker in the city of New York, he sold certain shares of Atchison preferred stock and omitted the required revenue stamps from the memorandum of sale. He de-standing the stress of particular circummurred to the indictment on the ground that the act of June 13, 1898 (30 Stat. at L. 448, chap. 448),1 which required the stamps to be affixed, was unconstitutional. The demurrer was overruled, the court, Thomas, J., delivering an opinion. 115 Fed. 207.

Trial was had, defendant found guilty, and judgment rendered, sentencing him to pay a fine of $500.

The case was then brought here on writ of

error.

Messrs. Frank D. Pavey, Walter J. Moore, and Charles O. Pavey, for plaintiff

in error.

stances has invited thorough investigation into sources of revenue."

The present case involves a stamp tax on a memorandum or contract of sale of a certificate of stock, which plaintiff in error claims was unlawfully exacted because not falling within the class of duties, imposts, and excises, and being, on the contrary, a direct tax on property.

There is no occasion to attempt to confine the words duties, imposts, and excises to the limits of precise definition. We think that they were used comprehensively to cover customs and excise duties imposed on importation, consumption, manufacture, and sale of certain commodities, privileges, particular business transactions, vocations, occupa

Assistant Attorney General Purdy for defendant in error. Mr. Chief Justice Fuller delivered the tions, and the like. opinion of the court:

By the first clause of § 8 of article I. of the Constitution, Congress is empowered "to lay and collect taxes, duties, imposts, and excises," "but all duties, imposts, and excises shall be uniform throughout the United

enumeration.

Taxes of this sort have been repeatedly sustained by this court, and distinguished from direct taxes under the Constitution. As in Hylton v. United States, 3 Dall. 171, 1 L. ed. 556, on the use of carriages; in Nicol v. Ames, 173 U. S. 509, 43 L. ed. 786, 19 Sup. Ct. Rep. 522, on sales at exchanges or boards of trade; in Knowlton v. Moore, 178 U. S. 41, 44 L. ed. 969, 20 Sup. Ct. Rep. 747, on the transmission of property from the dead to the living; in Treat v. White, 181 U. S. 264, 45 L. ed. 853, 21 Sup. Ct. Rep. 611, on agreements to sell shares of stock denominated "calls" by New York stockbrokers; in Patton v. Brady, 184 U. S. 608,46 L. ed. 22 Sup. Ct. Rep. 493, on tobacco manufactured for consumption.

By clause 1 of § 9, the migration or impor-713, tation of persons by the states was not to be prohibited prior to 1808, but a tax or duty could be imposed on such importation, not exceeding $10 for each person.

By clause 5 it is provided: "No tax or duty shall be laid on any articles exported from any state."

By clause 2 of § 10, no state can, "without the consent of the Congress, lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing its inspection laws." By clause 3 the states are 1 U. S. Comp. St. 1901, p. 2286.

Brown v. Maryland, 12 Wheat. 419, 6 L. ed. 678, and Fairbank v. United States, 181 U. S. 283, 45 L. ed. 862, 21 Sup. Ct. Rep. 648, are not in point. In the one the clause of the Constitution was considered which

forbids any state, without the consent of Congress, to "lay any imposts or duties on imports or exports," and in the other, that "no tax or duty shall be laid on articles exported from any state." The distinction between direct and indirect taxes was not involved in either case.

The sale of stocks is a particular business