fourth section enacted as follows: "That every State Freight Tax, 15 Wall. 232 (82 U. S. bk company or association whatever, now or 21, L. ed. 146); State Tax on Railway Gross Rehereafter incorporated by or under any law of ceipts, 15 Wall. 284 (82 U. S. bk. 21, L. ed. this Commonwealth, or now or hereafter in- 164); Passenger Cases, 7 How. 283 (48 Ú. S. bk. corporated by any other State or Territory 12,L. ed, 702); Crandall v. Nevada, 6 Wall. 35 of the United States or foreign government, (73 U. S. bk. 18, L. ed. 745); Henderson and doing business in this Commonwealth v. Mayor of N. Y. 92 U. S. 259 (bk. 23, L. or having capital employed in this Common-ed. 543); Guy v. Baltimore, supra; R. R. wealth in the name of any other company or Co. v. Husen, 95 U. S. 465 (bk. 24, L. ed. corporation, association or associations, person 527); Cook v. Pennsylvania, 97 U. S. 566 (bk. or persons, or in any other manner, except for 24, L. ed. 1015); Sweatt v. R. R. Co. 3 Cliff. eign insurance companies, banks and savings 339: Tel. Co. v. Texas, supra; Welton v. Missouri, institutions, shall be subject to and pay into 91 U. S. 275 (bk. 23, L. ed. 347); Car Co. v. the treasury of the Commonwealth annually a Nolan, 22 Fed. Rep. 279; Woodruff v. Parham, tax to be computed as follows, namely: if the 8 Wall. 138 (75 U. S. bk. 19, L. ed. 386); Candividend or dividends made or declared by non v. New Orleans, 20 Wall. 577 (87 U. S. bk. such company or association as aforesaid, dur 22, L. ed. 417). ing any year ending with the first Monday of November, amount to 6 or more than 6 per centum upon the par value of its capital stock, then the tax to be at the rate of one half mill upon the capital stock for each one per centum of dividend so made or declared; if no dividend be made or declared, or if the dividend or dividends made or declared do not amount to 6 per centum upon the par value of said capital stock, then the tax to be at the rate of three mills upon each dollar of a valuation of the said capital stock," made in accordance with the provisions of another section of the Act. It was under the authority of this Act that the taxes in question were stated against the Company by the auditor-general and the state treasurer. Commercial intercourse is guaranteed by the Constitution of the United States. It cannot be forbidden by any State of the Union. All individuals and corporations are entitled to do everything which is necessary to facilitate this intercourse. They do not derive their rights thus to facilitate it from any of the States, and are therefore not subject to a tax because they exercise it. Shook v. Mfg. Co. 61 Ind. 520; Ex parte Robinson, 2 Biss. 309; Council Bluffs v. R. R. Co. 45 Iowa, 338; Coal Co. v. Carrigan, 39 N. J. 35; Hays v. Steamship Co. 17 How. 597 (58 U. S. bk. 15, L. ed. 254); Gibbons v. Ogden, 9 Wheat. 1; Brown v. Maryland, 12 Wheat. 419 (25 U. S. bk. 6, L. ed. 678). Messrs. Robert Snodgrass, Deputy AttyGen. of Pennsylvania, and Lewis O. Cassidy, Atty. Gen. of Pennsylvania, for defendant in error: The right of a State to impose a tax upon the capital stock of a foreign railroad, canal, express, and other corporations, graduated by the extent to which their franchises are exercised within the State, cannot at this day be successfully controverted. The court of common pleas held that the taxes could not be lawfully levied, for there was no other business carried on by the Company in Pennsylvania except the landing and receiving of passengers and freight, which is a part of the commerce of the country and protected by the Constitution from the imposition of burdens by state legislation. It therefore gave judgment in favor of the Company. The case being carried on a writ of error to the Su-21, L. ed. 888). preme Court of the State, the judgment was reversed and judgment ordered in favor of the Commonwealth for the amount mentioned. To review this latter judgment the case is brought here. Messrs. John G. Johnson, Morton P. Henry, Geo. M. Dallas, M. E. Olmstead and Samuel Dickson, for plaintiff in error: The business in which the plaintiff in error was engaged was interstate transportation of freight and passengers, and was therefore within the protection of the Constitution of the United States. Guy v. Baltimore, 100 U. S. 434 (bk. 25, L. ed. 743). A foreign corporation has the same right as an individual to conduct every where the business of interstate transportation. Paul v. Virginia, 8 Wall. 168 (75 U. S. bk. 19, L. ed. 357); Pensacola Tel. Co. v. W. U. Tel. Co. 96 U. S. 12 (bk. 24, L. ed. 711); Doyle v. Ins. Co. 94 U. S. 344 (bk. 24, L. ed. 152); Tel. Co. v. Teras, 105 U. S. 460 (bk. 26, L ed 1067). It is not competent for the State to tax directly either the transportation or the goods of persons in transit. Minot v. R. R. Co. 18 Wall. 206 (85 U. S. bk. "A public ferry is a public highway of a spe cial description, and its termini must be in places where the public have rights, as towns or villes, or highways leading to towns or villes." Charles River Bridge v. Warren Bridge, 11 Pet. 622 (36,U. S. bk. 9, L. ed. 853). The business of a ferriage is not commerce," within the meaning of the Federal Constitution, in the sense that it must be free from state or local authority and control. A ferry may be an instrument of commerce. It is as much so, and perhaps in the same sense, as a bridge, but in any case it is at most no more than a local aid or instrument, which Congress has never undertaken to regulate or sontrol. The distinction was forcibly recognized by Mr. Justice Field, in County of Mobile v. Kimball, 102 U. S. 702 (bk. 26, L. ed. 241). That the power to establish and regulate ferries as well as other local aids to commerce rests in the State Legislatures and not in Congress, is well settled. Conway v. Taylor's Er. 1 Black, 603 (66 U. S. bk. 17. L. ed. 191); People v. Babcock, 11 Wend. 586; Gibbons v. 0,den, 9 Wheat. 1 (22 U. S. bk. |6, L. ed.); State v. Freeholders of Hudson, 3 Zab. 206; Fanning v. Gregoire, 16 How. 524 (57 U. S. bk. 14, L. ed. 1048); Ferry Co. v. E. St. Louis, 107 U. 8. 365 (bk. 27, L. ed. 419). Ferries are established by the legislative au-pany did business within the State of Pennsylthority of the several States. Without such authority no one, although he may own both banks of a navigable river, has the right to establish the ferry. The Supreme Court of the State, in giving its decision, stated that the single question presented for consideration was whether the Com Charles River Bridge v. Warren Bridge, 11 Pet. 421 (36 U. S. bk. 9, L. ed. 774); Stark v. Miller, 3 Mo. 470; Trustees v. Tatman, 13 Ill. 27. As a geographical fact, as each ferriage of persons and property is made across the entire stream, this Company is "doing business in this Commonwealth" and is manifestly within the class of corporations intended to be taxed by our laws. But it is not merely within the tax ing intention; it is plainly within the taxing power of the State. It is a foreign corporation, not strictly engaged in interstate commerce; and it is sufficient to say that never, since the decision of Bank of Augusta v. Earle, 13 Pet. 519 (38 U.S.bk. 10, L.ed. 274), has it been denied that where a State can restrict or control the business of a corporation when transacted within her limits, she can tax such business so far as it is done within her jurisdiction or can exclude the corporation altogether if she so desires. See also St. Louis v. Ferry Co. 11 Wall. 423 (73 U. S. bk. 20, L. ed. 192). vania during the period for which the taxes were imposed; and it held that it did do business there because it landed and received passengers and freight at its wharf in Philadelphia, observing that its whole income was derived from the transportation of freight and passengers from its wharf at Gloucester to its wharf at Philadelphia, and from its wharf at Philadelphia to its wharf at Gloucester; that at each of these points its main business—namely: the receipt and landing of freight and passengers-was transacted; that for such business it was dependent as much upon the one place as upon the other; that, as it could hold the wharf at Gloucester, which it owned in fee, only by purchase by virtue of the statutory will of the Legislature of New Jersey, so it could hold by lease the one in Philadelphia only by the implied consent of the Legislature of the Commonwealth; and that therefore it "was dependent equally, not only for its business, but its power to do that business, upon both States, and might therefore be taxed by both." 98 Pa. St. 105, 116. As to the first reason thus expressed, it may be answered that the business of landing and receiving passengers and freight at the wharf It is moreover to be observed that the tax in Philadelphia is a necessary incident to-inhere sought to be imposed is not a tax upon the deed, is a part of-their transportation across specific property of the corporation in which its the Delaware River from New Jersey. Withcapital may be invested. It is not an attempt out it that transportation would be impossible. to tax the ferry boats of this Company, nor is Transportation implies the taking up of perit an effort to tax a corporation in proportion sons or property at some point and putting to the number of ferry boats it owns. The them down at another. A tax, therefore, upon tax is not imposed either directly or indirectly such receiving and landing of passengers and upon them; it is not measured in amount by freight is a tax upon their transportation, that their numbers; it is the same whether the Com- is, upon the commerce between the two States pany owns few or many of them, and is un-involved in such transportation. affected by the frequency of their use. It therefore clashes with none of the following decisions which form part of the judicial argument against its validity: It matters not that the transportation is made in ferry boats which pass between the States every hour of the day. The means of transportation of persons and freight between the Cannon v. New Orleans, 20 Wall. 577 (87 U. S. States does not change the character of the busibk. 22, L. ed. 417); Transportation Co. v. Wheel-ness as one of commerce, nor does the time withing, 99 U. S. 273 (bk. 25, L. ed. 412); Morgan V. Parham, 16 Wall. 471 (83 U. S. bk. 21, L. ed. 303); Hays v. Steamship Co. 17 How. 596 (58 U. S. bk. 15, L. ed. 254); Hoyt v. Commissioners, 23 N. Y. 227; Passenger Cases, 7 How. 283 (48 U. S.bk. 12, L. ed.702); Almy v. People, 24 How. 169 (65 U. S. bk. 16, L. ed. 644); Crandall v. Nevada, 6 Wall. 35 (73 U. S. bk. 18, L. ed. 745). It is rather a tax upon the capital stock of the corporation, "not in separate parcels, as representing distinct properties, but as a homogeneous unit, partaking of the nature of personalty," and taxable where its corporate functions are exercised or its business done. If the business of ferriage is commerce, as defined by Chief Justice Marshall, we concede that any tax laid upon such business which comes within the ruling of the Passenger Cases or the State Freight Tax Cases or the many other cases involving the same principle, is an interference with commerce, and for that reason, unconstitutional. in which the distance between the States may be traversed. Commerce 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 for that purpose as well as the purchase, sale and exchange of commodities. The power to regulate that commerce, as well as commerce with foreign Nations, vested in Congress is the power to prescribe the rules by which it shall be governed-that is, the conditions upon which it shall be conducted; to determine when it shall be free, and when subject to duties or other exactions. The power also embraces within its control all the instrumentalities by which that commerce may be carried on and the means by which it may be aided and encouraged. The subjects, therefore, upon which the power may be exerted are of infinite variety. While with reference to some of them, which are local and limited in their nature or sphere of operation, the States may prescribe regulations until Congress in Mr. Justice Field delivered the opinion of tervenes and assumes control of them, yet, the court: when they are national in their character and carload shipments, owner's risk, from Louis- as herein before described, and furnishes the ville, Kentucky, to Huntsville, Alabama, is 37 same to said Standard Oil Company for cents per hundred pounds including the weight its use in transporting oil shipped by said of barrels which is the rate for such transpor- Company from Cincinnati, Ohio, to points tation appearing in the tariff sheet of defend-reached by defendant's said lines of railroad in ant in force ever since April 5, 1887, yet, States other than Ohio, and from Louisville, about May 1, 1887, a carload of oil contain Kentucky, to points reached by defendant's ing 66 barrels of oil weighing, including bar- said lines of railroad in States other than Kenrels, 24,750 lbs. was delivered by said Standard tucky, but refuses to furnish the same to said Oil Company, to defendant at Louisville, Ken-George Rice for his use in transporting oil tucky, to be transported to Huntsville, Alabama; said oils were consigned to Halsey Bros. at Huntsville, Alabama, who were the agents at said place, of said Standard Oil Company, and competitors in business at said point, with complainant; said oils were transported from Louisville, Kentucky, to Huntsville, Alabama, and the charge made by defendant for such transportation was $68.07 or 271 cents per 100 lbs. from said Cincinnati, Ohio, and Louisville, Kentucky, to such points in States other than Ohio and Kentucky. 4. Defendant in its freight rates for the transportation of such oils from Cincinnati, Ohio, to points reached by defendant's said lines of railroad in States other than Ohio, and from Louisville, Kentucky, to points reached by defendant's said lines of railroad in States other than Kentucky, almost uniformly since Third Charge: Complainant for a third April 5, 1887, has charged a higher rate per charge against defendant says that the defend-| 100 lbs. for oil transported by it in barrel packant, in its rates charged by it for services ren- ages, in car load shipments, owner's risk, than dered and to be rendered by it for the transit charged per 100 lbs. for such oils transported portation of said oils for complainant and said by it at the same time between the same points, Standard Oil Company, from Cincinnati, Ohio, contained in tank cars, owner's risk; while at to points reached by defendant's said lines of no time has there been any difference between railroad in States other than Kentucky, has, the cost, expense and convenience of transportsince April 5, 1887, uniformly made and given ing said oils by said two methods, or any cirundue and unreasonable preferences and ad- cumstances justifying a difference of rate bevantages to said Standard Oil Company, of tween said two methods of transportation, Kentucky, and to certain localities on its lines which even approximated the differences in of railroad, and had subjected complainant, defendant's freight rates for transportation by and certain localities on its lines of railroad, to said two methods, any differences between the undue and unreasonable prejudices and disad-cost, expense and convenience to defendant vantages. Under the above charge complainant makes the following specifications: 1. Complainant here repeats under this charge specification No. 1, under the second charge of his complaint; and alleges that the differences in the circumstances surrounding the shipments of said George Rice, and said Standard Oil Company, and that any differences to defendant in the cost and expense and convenience of transportation of said oils of said George Rice and said company respect ively, and any differences between the circumstances under which said Rice and said company respectively ship their oils justifying any differences in rate, if there be any, are small and insignificant in comparison with the differences in the rates so charged them respectively. of transportation by said two methods or any circumstances justifying a difference in rate between said two methods being slight and insignificant compared with the differences in rate between said two methods actually made by defendant. Complainant ships his oils over defendant's lines of railroad exclusively in barrel packages, while said Standard Oil Company ships its oil over defendant's lines of railroad almost exclusively in tank cars. 5. Defendant's freight rates per 100 lbs. for the transportation of such oils from Louisville, Kentucky, to the following destinations are the same whether the oil is carried in barrel packages or in tank cars. Mobile, Ala. Jackson, Miss. New Orleans, La. Jackson, Tenn. Meridian, Miss. Vicksburg, Miss. while defendant's freight rates per 100 lbs. for the transportation of such oils from Louisville, Kentucky, to nearly all, if not all, the other points reached by defendant's lines of railroad in States other than Kentucky, are much higher for oils carried in barrel packages than for oils carried in tank cars. Complainant here repeats under this charge specification No. 2, under the second charge of his complaint; and alleges that the differences in rates therein appearing are not meas ured by any differences in the circumstances surrounding the shipments of said George Rice and said Standard Oil Company, and that 6. Defendant's freight rates per 100 lbs, for any differences to defendant in the cost and ex- the transportation of such oils from Cincinnati, pense and convenience, of transporting such [Ohio, to Nashville, Tenn., and Mobile, Ala., oils for said Rice and said company respect are the same whether the oil is carried in barively, and any differences between the circum-rel packages or in tank cars, while the defendstances under which said Rice and said com pany respectively shipped their oils justifying any difference in rate, if there be any, are small and insignificant in comparison with the differences in the rates charged them respectively, Complainant is informed and believes and therefore states that 8. Defendant owns a number of tank cars ant's freight rates per 100 lbs. for the transportation of such oils from Cincinnati, Ohio, to nearly all, if not all, the other points reached by defendant's lines of railroad in States other than Ohio, are much higher when the oils are carried in barrel packages than when the oils are carried in tank cars. 7. Defendant has since April 5, 1887. 32 cents Rate per. 100 lbs. 780 miles charged for the transportation of oils from Mobile, Ala. Fourth Charge: Complainant for a fourth are as follows: Rate per 100 lbs. 35 cents. 66 ་་ aforesaid discriminations against him in rates, Said complainant further alleges that the and the aforesaid unreasonably high and unjust rates charged him, have had, and as he believes, were designed to have, the effect to give the Standard Oil Company, an almost complete monopoly of the traffic in such oils at the points reached by said defendant's lines of railroad and to exclude said complainant's products from nearly all of said points; and that such discriminations and charges, as complainant is informed and believes, and therefore states, have been made by said defendant at the dictation of said Standard Oil Company; and he states that by reason of the premises he has been largely injured in his business and has lost large profits that he otherwise would have realized; that his facilities in all other respects than for said transportations during all the time since April 5, 1887, have been ample for the transaction of a large and profitable business in the sale of said oils in said markets, and that but for the premises, he would have prosecuted such business to the limits of his facilities with great profit to himself. Your said complainant therefore prays that your honorable Commission will proceed to inquire into the matters herein before complained of and ascertain, and find, the facts of Congress, and the extent to which said comwith respect to the alleged violation of said Act plainant has been injured and is entitled to reparation, and report the same, with your conclusions and recommendations according to law; and further that your honorable Commission will notify said defendant to cease and desist from such violations and make such reparation, and will take such further action as is lawful and proper in the premises. George Rice, complainant, By Wm. B. Loomis and A. D. Follet, his counsel. UNITED STATES SUPREME COURT. OUACHITA & MISSISSIPPI RIVER v. CATHERINE M. AIKEN, Admrx. of (From Lawyers' ed. U. S. Reports, Bk. 30.) interstate commerce. States for the Eastern District of Loui 2. Wharfage is subject to local stateAPPEAL from the Circuit Court of the United laws, Congress having passed no Act siana. Reported below, 4 Woods, 208. Af-1 should be devoted to the maintenance of a har firmed. The history and facts of the case appear in the opinion of the court. Messrs. John H. Kennard and William W. Howe, for appellants. Messrs. William S. Benedict, George Denégre and Thomas L. Bayne, for appellees. Mr. Justice Bradley delivered the opinion of the court: bor police for the protection of commerce, and the remaining $10,000 should be devoted exclusively to the payment of salaries of wharfingers, signal officers, and other employees on the levees. The sale was to be adjudicated to the persons who should agree to charge the lowest rates of wharfage. Joseph A. Aiken put in a proposal to take the lease on the conlitions specified, at the rates of wharfage named in the Ordinance of 1875, with certain reductions which he agreed to make from time to time; and this proposal was accepted by the council. The power to construct and maintain levees and wharves, and to prescribe and collect rates of levee dues and wharfage, had been conferred upon the city council by its charter (Act of March 16, 1870. No. 7, § 12); and by the Act of March 13, 1871, it was authorized to lease the wharves, upou adjudication, for any term not to exceed ten years at a time. Laws of 1871, No. 48, 7. The bill in this case was filed in the Circuit Court of the United States by the appellants, for themselves and all others in like interest who should come in and contribute to the expenses of the suit, against Catherine M. Aiken, administratrix of Joseph A. Aiken, and others, residents of New Orleans, doing business under the firm name of Joseph A. Aiken & Co., and against the City of New Orleans. The complainants are owners of steamboats plying between New Orleans and other ports and places on the Mississippi River and its branches in other States than Louisiana; and the burden of The point raised by the complainants is that their complaint is that the rates of wharfage the rates of wharfage proposed by the lessees which they are compelled to pay for their ves- were necessarily enhanced by the condition resels at New Orleans are unreasonable and ex-quiring them to erect new wharves, to maincessive, are really duties of tonnage, and im-tain electric lights, and to pay the City $40,000 posed in violation of the Constitution of the United States. The defendants, Joseph A. Aiken & Co., at the time of filing the bill, were lessees of the public wharves belonging to the City of New Orleans, under a lease from the City made in May, 1881, for the term of five years; and, as such lessees, charged and collected the wharfage complained of. The object of the bill, as shown by its prayer, was to obtain an injunction to prevent the defendants from exacting the excessive charges referred to, the complainants expressing a willingness to pay all reasonable wharfage. The bill alleges that on the 17th of January, 1875, the council of the City of New Orleans adopted an ordinance, "fixing and regulating charges for wharfage, levee, and other facilities afforded by the City of New Orleans to commerce," by which ordinance, among other matters and things, it was ordained that the wharfage dues on all steamboats shall be fixed as follows: "Not over five days, ten cents per ton, and each day thereafter, five dollars per day; boats arriving and departing more than once a week, five cents per ton each trip; boats lying up for repairs during the summer months to occupy such wharves as may not be required for shipping, for thirty days or under, one dollar per day. The entire ordinance was filed with the bill as an exhibit, showing the rates of wharfage to be charged for vessels of every kind. per annum for the maintenance of a harbor police, and the payment of salaries to wharfingers, etc. They argue, therefore, that the rates agreed to be charged were intended, not merely as compensation for the use of wharves already constructed, but as a tax to raise money for the use of the City, to enable it to do those things the expense of which should be defrayed from its general resources; it being contended that wharfage cannot be charged for the purpose of raising money to build wharves, but only for the use of them when built. The complainants contend that the charges are unreasonable and excessive as wharfage, and therefore unauthorized as such, and, in effect, a direct duty, or burden, upon commerce. They offered a good deal of evidence to show that the rates of wharfage charged are onerous and excessive, and that, without the conditions referred to, the lessees could have offered to take much lower rates; or, at all events, that much lower rates would have been a reasonable and suflicient compensation. On the other hand, the defendants offered evidence to show that the rates were reasonable, and that, with the same or even higher rates, the City itself, be fore leasing out its wharves, lost every year a large amount of money in their administration. The court below declared " that the exactions of wharfage are substantially expended for the benefit of those using the wharves, and that the proof does not satisfy us that the rates are The bill then states that on the 17th of May, exorbitant or excessive.” Ouachita Packet Co. 1881, the council of the City adopted an ordi- v. Aiken, 4 Woods, 208, 213. We do not think nance directing the administrator of commerce it necessary to scrutinize the evidence very to advertise for sealed proposals for the sale of closely. With the circuit court, we see nothing the revenues of the wharves and levees for the in the purposes for which the lessees were reterm of five years, upon certain conditions quired to expend or pay money, at all foreign to specified, among which were the following; the general object of keeping up and maintainviz.: to keep the wharves and levees in good re-ing proper wharves, and providing for the sepair; to construct such new wharves as might be necessary, not exceeding the expenditure, in any one year, of $25,000; to light the wharves with electric lights; and to pay the City annually the sum of $40,000, of which $30,000 | curity and convenience of those using them. The case is clearly within the principle of the former decisions of this court, which affirm the right of a State, in the absence of regulation by Congress, to establish, manage and carry on |