and destroyed the same and their contents. The Falcon was also destroyed. The owners of the shore property thus burned proceeded in admiralty, as for a marine tort, against the owners of the Falcon and attached the Plymouth, a vessel belonging to the defendants. The United States district court held that the case was not one coming within the admiralty jurisdiction, and dismissed it accordingly. On appeal, the supreme court of the United States affirmed the decision. NELSON, J., delivering the opinion of the court, said: "The cause of action not being complete on navigable waters, affords no ground for the exercise of the admiralty jurisdiction."1

Vessels on the Mississippi river, plying from point to point of opposite shores in two different States, are within the admiralty jurisdiction, notwithstanding their principal business is that of ferrying between opposite sides of said river.

2

IV. COMMON LAW JURISDICTION OF MARITIME CASES.

State courts have jurisdiction of personal actions growing out of maritime contracts by proceeding at common law, not for a lien, but for a personal recovery for breach of contract. Thus an action at law lies on a bill of lading for carriage of goods by a carrier upon maritime waters, from a port in one State to a port of another State, to recover damages for breach of the contract of carriage.3

They also have jurisdiction at common law against the person for personal injuries and other torts, if there is a common law remedy, and this whether the right of action be one at common law or be given by statute.4

The term "suits at common law," in the Federal Constitution, is used in contradistinction to equity proceedings and proceedings in admiralty, in which latter a mixture of public law, maritime law and equity are sometimes found in the same suit. The term does not contemplate such proceedings only as in form and

1

13 Wall. 36.

2 The Gate City, 5 Biss. 200.

Home Ins. Co. v. Northwestern Packet Co., 32 Iowa, 223; New Jersey Steam Nav. Co. v. Merchants' Bank, 6 How. 344; Waring v. Clarke, 5 How. 441; The Genesee Chief v. Fitz

hugh, 12 How. 443; The Moses Tay. lor, 4 Wall. 441; The Belfast, 7 Wail. 624.

4 Dougan v. Champlain Trans. Co., 56 N. Y. 1, 6; Swarthout v. New Jersey Steam Nav. Co., 48 N. Y. 209.

practice conform strictly to those of the old common law. In other words, proceedings at common law, in their true sense, "embrace all suits which are not of equity and admiralty jurisdiction, whatever may be the peculiar form which they may assume to settle legal rights."1

To enable the common law courts of a State to exercise common law jurisdiction in admiralty cases, where a common law remedy exists, it is not necessary that the right of action should be one known to the common law; it is sufficient, though the right be given by statute, if it can be enforced by a common law proceedings.2

Where a party having a right of action in admiralty is willing to forego his right of proceeding in rem, and to proceed at common law for his remedy in a personal action against the parties liable thereto, he has his election so to do, and may, if he elects to proceed at common law, have his action in the proper State court; or, if the parties and amount in controversy be such as to bring the case within the common law jurisdiction of the United States circuit court, may bring his action in the latter court, at his election.4 Such action lies thus at common law, if the circumstances, as before stated, be such as to warrant it, as well if the right of action be one at common law, or one given by statute. The case here cited, of Steamboat Co. v. Chase, was an action for the death of a person while crossing a highway, given by a statute of Rhode Island, in cases where the death is caused by negligence of a common carrier. The deceased was crossing Narragansett Bay on a public highway, and was run over and killed by a steamer there plying as a common carrier. The supreme court of the United States held that the common law action lay therefor in personam against the owner of the vessel, under the statute. Though by the civil law it is otherwise, yet, under the maritime law of the United States, neither a

'Parsons v. Bedford, 3 Pet. 433, 446, How. 553; Swarthout v. New Jersey Steam Nav. Co., 48 N. Y. 209.

447.

* Dougan v. Champlain Trans. Co., 6 Lans. 430; S. C., 56 N. Y. 1.

་་

31 U. S. Stat. at Large, 76; The Belfast, 7 Wall. 666; Baird v. Daly, 57 N.Y. 236, 247; Dougan v. Champlain Trans. Co., 56 N. Y. 1; Sturgis v. Boyer, 24 How. 117; Chamberlain v. Ward, 21

4 Steamboat Co. v. Chase, 16 Wall. 522; Sturgis v. Boyer, 24 How. 117; Chamberlain v. Ward, 21 How. 553.

5 16 Wall. 522; Baird v. Daly, 57 N. Y. 236, 247; Swarthout v. New Jersey Steam Nav. Co., 48 N. Y. 209.

contract to build a ship, or to furnish materials for that purpose, is a maritime contract; and causes of action resting on such contracts do not come within the jurisdiction of the United States court, under that clause of the Constitution which declares, in substance, that the judicial power of the United States shall extend to all cases of admiralty and maritime jurisdiction.1 Such contracts to build, and to furnish material with which to build ships, are within the jurisdiction of the State courts, and the purview and force of State laws giving liens for security of payment for labor and materials thus furnished and bestowed, as also within the rules and regulations provided by such State laws for their enforcement, which do not amount to a regulation of commerce."

Edwards v. Elliott, 21 Wall. 532, 556, 557; Roach v. Chapman, 22 How. 129.

Edwards v. Elliott, 21 Wall. 532, 555, 556, 557; The Belfast, 7 Wall. 645; Sheppard v. Steele, 43 N. Y. 55.

CHAPTER XXIX.

INTER-STATE COMMERCE.

I. THE TERM COMMERCE.

MERCE.

POWER TO REGULATE INTER-STATE COM

II. UNTIL CONTROLLED BY CONGRESS IT IS FREE.

III. STATE REGULATION OF VESSELS ENGAGED IN COMMERCE.

TAX OF

COMMANDERS, AND OF ARRIVALS AND INTER-STATE PASSENGERS BY
LAND AND BY WATER.

IV. STATE PROPERTY TAX OF VESSELS ENGAGED IN INTER-STATE COM

VI.

WAREHOUSING AND ELEVATING.

VII. STATE CONTROL OF BAYOUS AND SLOUGHS OF RIVERS.

I. THE TERM COMMERCE.

POWER TO REGULATE INTER-STATE COMMERCE.

Commerce is a term of comprehensive import. It includes intercourse, for the purposes of trade, in any and all forms. The power to regulate, say the supreme court of the United States, "embraces all the instruments by which such commerce may be conducted." Where the subjects are local in their nature, it has been held that the States may provide regulations until Congress acts in reference thereto; but where the subject is of a national character, or such as to admit of uniformity of regulation, the the power is in Congress, exclusive of all State authority.3

Under the Control of Congress. The Constitution of the United States places commerce between the several States exclusively within the control and regulation of Congress. Congress,

Welton v. Missouri, 1 Otto, 275. And see, to same effect, The Pensacola Telegraph Co. v. The Western Union Telegraph Co., 6 Otto, 1.

2 Welton v. Missouri, 1 Otto, 275; Sherlock v. Alling, 3 Otto, 99; U. S. . Bevans, 3 Wheat. 337; The Lotta

wanna, 21 Wall. 568, 581; Er parte McNiel, 13 Wall. 236, 240; Wilson v. Blackbird Creek Marsh Co, 2 Pet. 245.

3 Welton v. Missouri, 1 Otto, 275,

280.

alone, has power to regulate commerce among the States. Any impediment imposed by a State upon commerce with other States is unconstitutional and void. Thus, a State law levying a stamp duty on exports is unconstitutional as a tax upon exports, and is of no force whatever. This power to regulate commerce conferred upon Congress by the Constitution, is not confined to the means of carrying on the same which were known and used at the time the Constitution was adopted. This power was not conferred for a particular time, but for all times. It is commensurate with the increased subjects of commerce as the same increase from time to time, and extends in like manner to all new appliances and means used in carrying on the same.3 In the language of the United States supreme court, WAITE, C. J., such powers "keep pace with the progress of the country, and adapt themselves to the new developments of time and circumstances. They extend from the horse, with its rider, to the stage coach; from the sailing vessel to the steamboat; from the coach and steamboat to the railroad; and from the railroad to the telegraph, as these new agencies are successively brought into use to meet the demands of increasing population and wealth. They were intended for the government of the business to which they relate, at all times, and under all circumstances."4 It is thus held that not only the ordinary means of inter-State transportation and traffic, but also the means of inter-State communication, as the electric telegraph, are within the power thus bestowed upon Congress by the Constitution, and that no State can confer on any one a monopoly of the telegraphic business within

1 Sec. 8, Article I. Cons. U. S.; Brown v. Maryland, 12 Wheat. 419, 425, 444; Welton v. Missouri, 1 Otto, 275; Corfield v. Coryell, 4 Wash. C. C. 371; Almy v. California, 24 How. 169; Gibbons v. Ogden, 9 Wheat. 1; Pennsylvania v. Wheeling Bridge Co., 18 How. 421; Passenger Cases, 7 How. 283; Council Bluffs v. Kansas City, etc., R. R. Co., 45 Iowa, 338, 349; State Freight Tax Case, 15 Wall. 232; Railroad Co. v. Husen, 5 Otto, 465; Inman Steamship Co. v. Tinker, 4 Otto, 238; State Tonnage Tax Cases, 12 Wall. 204; Cannon v. New Orleans, 20 Wall.

577; Foster v. Master, etc., of Port of New Orleans, 4 Otto, 246.

2 Almy v. California, 24 How. 169. 3 Pensacola Telegraph Co. v. The Western Union Telegraph Company, 6 Otto, 1.

Pensacola Telegraph Co. v. The Western Union Telegraph Co., 6 Otto, 1. A like principle is asserted in the case of the Genesee Chief, 12 How. 443, in regard to admiralty jurisdic tion, and is sustained in all subse quent rulings on the subject; that having now become a leading case.