merce, under Article 1, § 8, Subdivision 3, of the Federal Constitution, giving Congress control over interstate commerce, confers the supreme authority over navigable rivers and streams for the purpose of regulating navigation, and all that pertains thereto; and under this authority the Federal Government is supreme and may not be interfered with by the laws of the States. The subject is fully discussed in United States v. Chandler-Dunbar Water Power Co., 209 U. S. 447. The tax here in question does not impose a license tax as a prerequisite to the navigation of the river, as was the case in Harman v. Chicago, 147 U. S. 396, cited and relied upon by the plaintiff in error, where an ordinance of the City of Chicago, imposing a license tax for the privilege of navigating the Chicago River and its branches by steam tugs licensed under the Federal authority, was held an unconstitutional exaction, as it required payment for a privilege which had already been granted within the authority of the Federal Government.

In the case now before the court, the tax, as was said by Chief Judge Cullen, in delivering an opinion in the Court of Appeals in New York in this case, concurring in the order affirming the court below without opinion, is levied upon the corporation for the privilege of carrying on its business in a corporate or organized capacity. As the Chief Judge says, if the parties beneficially interested in the company are dissatisfied with the price exacted by the State for this privilege they may carry on the business as individuals without paying any charge. In other words, the charge is not upon the navigation of the river, but is upon the doing of business as a corporation of the State within the State. While the State may not require a navigation license except in very exceptional cases, as for compensation for improvements which the State has made, a situation not presented here, it may, certainly as to a corporation of its own creation having

property within its borders enforce its usual and customary systems of taxation without infraction of the superior authority and laws of the United States concerning the navigation of rivers.

With this view of the tax now under consideration, we think the State did not exceed its authority in its imposition of a tax for the purpose stated.

But it is urged that this is a tax upon interstate commerce, and therefore beyond the power of the State, notwithstanding the statute undertakes to exempt the proceeds of interstate commerce from taxation. That interstate commerce is necessarily taxed is said to arise from the fact that the business of the Company is in fact interstate commerce, as shown by its additional return, from which it appears that vessels for up-river points on the Hudson River are taken by tows, which are made up at a stakeboat located at Weehawken, which is within the territorial limits of New Jersey, that these stakeboats are anchored in the river just below Weehawken ferry, and that the course up the river is in territory of New York and New Jersey. But transportation between the ports of the State is not interstate commerce, excluded from the taxing power of the State, because as to a part of the journey the course is over the territory of another State. Lehigh Valley Railroad v. Pennsylvania, 145 U. S. 192; Ewing v. City of Leavenworth, 226 U. S. 464, and see Cincinnati Packet Co. v. Bay, 200 U. S. 179, 183. Weehawken is opposite New York harbor, and the business upon which the tax is here imposed is all done between New York ports, and the record shows distinctly that no earnings were returned for tugs operated in New York harbor and ports outside the State. Such business was deducted as interstate business and not taxable under the terms of the statute. It is evident that the making up of the tows for the State ports in the river below Weehawken was for convenience in conducting domestic transportation.

We are of the opinion that commerce thus carried on is not interstate commerce, beyond the taxing power of the State, and that the return on which the tax was assessed did not involve the revenues of commerce among the States, and this contention must be rejected.

It follows that the decision of the Supreme Court of New York must be

Affirmed.

GILBERT, ADMINISTRATOR OF SELLECK, v. DAVID, ADMINISTRATRIX OF SELLECK.

ERROR TO THE DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT OF CONNECTICUT.

No. 97. Argued December 4, 1914.—Decided January 5, 1915.

As § 37, Judicial Code, does not prescribe any particular mode by which the question of jurisdiction shall be raised, the method of raising that question may be left to the sound discretion of the trial judge; and, if the state practice admits, the issue may be raised by general denial in the answer.

While the trial court may submit the question of a party's residence to the jury, it is not bound to do so; and in this case the court properly exercised its privilege to dispose of that issue on the testimony. In this case the defendant was not chargeable with laches because he did not force to trial the issue of plaintiff's citizenship.

The fact that delay in determining the issue of citizenship results in the statute of limitations applying, does not confer jurisdiction on the Federal court if diverse citizenship does not exist.

Where the record in a case dismissed by the District Court for want of jurisdiction on account of absence of diverse citizenship brings up the testimony, this court must consider it and determine whether the trial court rightly decided that plaintiff was a citizen of the same State as defendant.

If plaintiff, at the commencement of the action, be domiciled in a difVOL. CCXXXV-36

Argument for Plaintiff in Error.

235 U.S.

ferent State from that of defendant he is a citizen of that State within the meaning of the Judicial Code.

Change of domicile arises where there is a change of abode and the absence of any present intention to not reside permanently or indefinitely in the new abode; and this notwithstanding a floating intention of returning to the former place of domicile after completion of the object for which the change was made.

In this case held that the acts of the plaintiff in regard to his change of residence indicated a change of domicile to the State in which defendant resided prior to commencement of the action, and diverse citizenship did not then exist.

THE facts, which involve the jurisdiction of this court under § 238, Judicial Code, and the construction of § 37, Judicial Code, and the jurisdiction and duty of the District Court thereunder, are stated in the opinion.

Mr. Howard W. Taylor for plaintiff in error:

Under the pleadings as they stood the court was without power to dismiss the case for want of jurisdiction due to lack of diversity of citizenship, and the order or judgment of dismissal was a nullity.

Under the facts proven, the court erred in holding that the evidence showed the plaintiff to be a citizen of Connecticut.

The laches of the defendants in failing to raise the question of jurisdiction until after a period of three years had elapsed from the accrual of the cause of action and for over two years after the filing of the substituted complaint required the trial court, in the exercise of the proper discretion, to refuse to consider the question of jurisdiction after the lapse of so many years.

An analysis of the evidence shows that the court in its deductions therefrom applied a wrong principle of law in the consideration of the evidence and failed to apply the correct principle.

The judgment should be reversed and the trial court

235 U. S.

Argument for Plaintiff in Error.

directed to entertain jurisdiction and hear the case upon its merits, or proper issues should be framed as to the jurisdiction and a trial had thereon.

In support of these contentions, see Adams v. Herald Publishing Co., 82 Cons. 448; Adams v. Shirk, 117 Fed. Rep. 805; Briggs v. Trader's Co., 145 Fed. Rep. 254; Brown v. Gillett, 33 Washington, 74; Chambers v. Price, 75 Fed. Rep. 177; Chase v. Wetzler, 225 U. S. 79; Cuthbert v. Galloway, 35 Fed. Rep. 466; Conn. Statutes, Rev. 1902, § 2313; Deputron v. Young, 134 U. S. 252; Danbury City Charter, §§ 25, 27; Every Evening Printing Co. v. Butler, 144 Fed. Rep. 916; Farmington v. Pillsbury, 114 U. S. 138; Fiske v. Hartford, 69 Connecticut, 390; Foster v. Railway Co., 56 Fed. Rep. 434; Gaddie v. Main, 147 Fed. Rep. 955; Hedge v. Clapp, 22 Connecticut, 262270; Hart v. Granger, 1 Connecticut, 170; Hartog v. Memory, 116 U. S. 590; Hill v. Walker, 167 Fed. Rep. 248; Howe v. Howe & O. B. B. Co., 154 Fed. Rep. 820; Ill. Cent. R. R. v. Adams, 180 U. S. 38; Imperial Ref. Co. v. Wyman, 38 Fed. Rep. 574; In re Cleland, 218 U. S. 122; Jones v. League, 18 How. 76; Jones v. Subera, 150 Fed. Rep. 462; Kirven v. Virginia-Carolina Co., 145 Fed. Rep. 288; Kilgore v. Norman, 119 Fed. Rep. 1006; Kuntz v. Davidson County, 6 Lea (Tenn.), 65; Lebensberger v. Schofield, 139 Fed. Rep. 382; National Accident Ass'n v. Sparks, 83 Fed. Rep. 225; Nichols v. Ansonia, 81 Connecticut, 229; On Yuen Co. v. Ross, 14 Fed. Rep. 338, 37 Cyc. 811; Opinion of the Justices, 7 Massachusetts, 523; Perkins v. Perkins, 7 Connecticut, 565; Pike County v. Spencer, 192 Fed. Rep. 11; Reckling v. McKinstry, 185 Fed. Rep. 842; Rucker v. Bolles, 80 Fed. Rep. 504; Railway Co. v. Ohle, 117 U. S. 123; State v. Ross, 23 N. J. Law, 517; Terry v. Day, 107 Fed. Rep. 50; Toledo Traction Co. v. Cameron, 137 Fed. Rep. 55; Wetmore v. Rymer, 169 U. S. 120; Wiemer v. Louisville Water Co., 130 Fed. Rep. 244; Williamson v. Osenton, 232 U. S. 619; Wil