its counties; and by this test Massachusetts can properly include Buzzard's Bay within the limits of its counties. § 11. Natural oil and gas as subjects of commerce.- Natural oil and gas are not subject to absolute ownership while in the confines of the earth, and from their tendency to move from one place to another have been called in some of the decisions minerals feræ naturæ. They become however lawful subjects of commerce when brought to the surface and secured in pipes. A statute of Indiana prohibiting the piping of natural gas from the state was held by the supreme court of that state to be an attempted regulation of interstate commerce, and violative of the natural right of dealing with property, and therefore void. The court said that the natural gas in the earth cannot be a commercial commodity, but when brought to the surface and placed in pipes for transportation, it assumed that character as completely as coal in cars or petroleum in tanks.' While this position seems to be conceded in all the courts as to the commercial character of oil and gas when brought to the surface and secured in possession, it is also recognized that owing to the peculiar character of these substances the property right of the owner of the land in such mineral oil and gas while confined in the earth is necessarily subject to qualifications. Thus an act of Indiana making it unlawful for the owner of a natural gas or oil well to allow or permit the flow of gas or oil from any such well to escape into the air, without being confined within the well or proper pipes, for a longer period than two days after the gas or oil shall have been struck in such well, was not a violation of the constitution of the United States, nor taking of private property without compensation, nor a denial of due process of law, but was a lawful regulation by a state within its discretion of a subject which especially comes within its lawful authority.2 State ex rel v. Indiana & Ohio Gas and Mining Co., 120 Ind. 575. 2 Ohio Oil Co. v. Indiana, 177 U. S. 190, 44 L. Ed. 729. See also Brown Spillman, 155 U. S. 655, 39 L. Ed. 304; Westmoreland & Cambria Natural Gas Co. v. Dewitt, 180 Pa. St. 255: Townsend v. State, 147 Ind. 624; Indiana Consumers & T. R. Co. v. The supreme court said in this case that there is a distinction between animals feræ naturæ and gas and oil, in that in the case of the former there was no individual proprietorship until the actual reduction of the property to possession, the property right until then being in the public. In the case of natural gas and oil no such right exists in the public; and in the case of the former every one may be prohibited from seeking to reduce to possession. In the case of natural gas and oil however the surface proprietors within the gas field have the right to reduce to possession the gas and oil beneath, and they cannot be absolutely deprived of this right without the taking of private property. The legislative power however, from the peculiar nature of the right and the objects upon which it is to be exerted, can be manifested for the purpose of protecting all the collective owners in the gas field and preventing waste. It was urged in this case that it was necessary to waste the gas in order to force up the oil; but the court said this was a matter which addressed itself to the wisdom of the legislature and did not affect the power to make the regulation. § 12. The commerce clause and the admiralty jurisdiction. The federal power over interstate and foreign commerce is reinforced as to the commerce on water, as distingushed from land transportation, by section 2, article III, of the constitution, extending the judicial power of the courts of the United States to all cases of admiralty and maritime jurisdiction. It is not within the scope of this work to consider the federal legislation enacted in the regulation of this admiralty and maritime jurisdiction, further than to show the progressive development of this jurisdiction, which has more than kept pace with the judicial development of the commerce clause. It was first ruled, following the English precedents,' that the admiralty courts could not rightfully exercise jurisdiction except in cases where the service was substantially performed or to be performed upon the sea, or upon waters within the ebb and flow of the tides. The effect of this decision was to exclude from the admiralty and maritime jurisdiction the commerce upon the great lakes and navigable rivers of the United States. It was not until 1851 that the earlier decision was 1 The Thomas Jefferson, 10 Wheat. 428 (1825), 6 L. Ed. 358. overruled, and it was definitely decided that the admiralty and maritime jurisdiction granted to the federal government by the constitution of the United States was not limited to tide waters, but extended to all public navigable lakes and rivers where commerce was carried on between different states or with foreign nations. This case arose upon the great lakes, but the rule was subsequently extended to cases arising upon the navigable rivers of the United States where there was no ebb and flow of the tide.2 3 Later it was held that a stream lying wholly within a state and forming by its junction with Lake Michigan a continuous highway for commerce, both with other states and with foreign. nations, was a navigable water of the United States. In this case the rule was announced, that those rivers must be regarded as public navigable rivers in law, which are navigable in fact, and that they constitute navigable waters of the United States within the meaning of the acts of congress in contradistinction between the navigable waters of the states, when they form in their ordinary condition by themselves, or by uniting with other waters, a continued highway over which. commerce is or can be carried on with other states or foreign countries, in the customary modes in which such commerce is conducted by water. It is immaterial that the navigability of such a river may be interrupted by rapids and falls over which portages are required to be made.' § 13. Erie canal subject to admiralty jurisdiction. In a recent case the admiralty and maritime jurisdiction has been extended to the Erie canal, which lies wholly within the state of New York, on the ground that it connects navigable waters and is a great highway of commerce between ports of different states and foreign countries, and is, therefore, a navigable water of the United States within the legitimate scope of the admiralty jurisdiction of the courts of the United States. In 1 The Genesee Chief, 12 How. 443 (1851), 13 L. Ed. 1058. The Magnolia, 20 How. 296 (1857), 15 L. Ed. 909; Fretz v. Bull, 12 How. 466, 13 L. Ed. 1068 (1851). 4 The Montello, 20 Wall. 430 (1874), 22 L. Ed. 391; Escanaba Co. v. Chicago, 107 U. S. 678 (1882), 27 L. Ed. 442; Miller v. The Mayor, 109 U. S. 385 (1883). 27 L. Ed. 971; In re GarThe Daniel Ball, 10 Wall. 557 nett, 141 U. S. 1 (1891), 35 L. Ed. 631. (1870), 19 L. Ed. 999. this case it was adjudged that the enforcement of a lien in rem for repairs to a canal boat engaged in traffic on the Erie canal and the Hudson river, and at a port in the state, was within the admiralty jurisdiction, and could not be enforced by any proceeding in the courts of the state of New York.! $14. Jurisdicdiction of federal courts in admiralty cases. The admiralty and maritime jurisdiction is conferred by the constitution upon the judicial power, and not in express terms upon the legislative power of the federal government. The Supreme Court however has held that the power of legislation on the same subject must necessarily be in the national legislature, and not in the state legislatures. The federal legislative power is not confined to the boundaries or class of subjects which limit and characterize the power to regulate commerce; but in maritime matters it extends to all matters and places to which the maritime law extends. The boundaries and limits of the admiralty and maritime jurisdiction are matters of judicial cognizance, and they cannot be affected or controlled by legislation, whether state or national. The jurisdiction of the federal courts in maritime cases, therefore, is broader than that under the commerce clause, as it includes maritime cases, where the voyage or contract, if maritime in character, is made to be performed wholly within a single state. Under the judiciary act of 1789 the jurisdiction of the courts of the United States is exclusive in all cases of admiralty and maritime jurisdiction, saving to suitors a common law remedy, where the common law is competent to give it.3 § 15. State corporations in interstate commerce. The right of a state corporation to engage in business in another state by locating therein, without the permission of that state, must depend upon whether the corporation is engaged in carrying on interstate commerce. In this connection the term "carrying on interstate commerce" is limited to the corporations actually engaged in carrying on interstate commerce, that is, com 1 The Robert W. Parsons, 191 U. S. 17, (1903), 48 L. Ed. 73, Justices Brewer, Fuller, Peckham and Harlan dissented on the ground that the contract was not a maritime contract and that the admiralty jurisdiction did not extend to contracts for re pairs to vessels which were incapacitated for foreign commerce and designed and used exclusively for mere local traffic within the state. 2 In re Garnett, 141 U. S. 1, and cases cited, 35 L. Ed. 631. 3 Sec. 711 R, S., U. S. mon carriers and others who afford the facilities whereby commerce is carried on among the states or actually carry on such commerce and does not include manufacturing and trading companies making interstate shipments. Thus all public carriers, railroads, steamboats, telegraph or telephone companies, bridge and ferry companies operating in different states, are carrying on interstate commerce in this sense. The state can neither exclude corporations of this class actually engaged in interstate commerce, nor can it impose conditions upon the transaction of their business in the state, though it may tax their property employed in the state. In one sense, all commercial business between citizens of different states is interstate commerce, and the manufacturer who ships his goods to the purchasers in another state is engaged in interstate commerce. This commerce is protected by the federal power against discriminating or interfering state legislation, and in such protection, there is no distinction between non-resident individuals and corporations. Corporations, it is true, are not citizens within the meaning of the constitution, providing that citizens of each state shall be entitled to all the privileges and immunities of the citizens of the several states, though they are persons within the meaning of the fourteenth amendment and are therefore entitled to due.pro. cess of law and the equal protection of the laws. The right to engage in interstate commerce does not depend upon citizenship, and the capacity of the foreign corporation to carry on such business must be determined by its own charter, granted by the state of its creation, and by the law of the state in which it is carrying on business. The manufacturing or trading company incorporated and doing business under the laws of one state can send its commercial travelers soliciting sales through other states, and may ship its goods to the purchasers, and such business cannot be interfered with by the states in the exercise of either their taxing or police powers. Such interstate commerce does not constitute a "doing of business" within the state. But while the foreign manufacturing or trading corporation may sell its goods in the state, or solicit sales in the transaction of interstate commerce, it cannot es 1 Constitution, art. IV, sec. 2; Crutcher v. Kentucky, 141 U. S. 47 (1901), 35 L. Ed. 649. |