Argument for Defendant in Error.

202 U. S.

entirely between the Government of the United States and the Ayer and Lord Tie Co., which does not inure to the benefit of the State. The latter is a mere outsider, in no way interested in the matter of enrollment, was not benefited by it, and cannot be injured by its being held illegal.

The steamboats had no actual situs. They were engaged in interstate commerce. They were engaged in trading between places in different States upon different waters. The State must show a situs of the property in question. Walker v. Walker, 9 Wall. 755; Marine Nat. Bank v. Fiske, 71 N. Y. 353; Myers v. Cronk, 113 N. Y. 608; Monson v. Tripp, 81 Maine, 24.

Mr. N. B. Hays, Attorney General of Kentucky, with whom Mr. Charles H. Morris and Mr. J. H. Ralston were on the briefs, for defendant in error:

If the actual situs and home port of the boats in question is Paducah, Kentucky, under the laws of the United States. governing navigation, then these boats and barges are within the jurisdiction of the State of Kentucky, and the county of McCracken; are protected by the State's laws, and subject to state and county taxation; and if the tax is levied only at the home port, and said boats and barges are valued as other property, and without unfavorable discrimination, because of their employment, it is a valid power of the State. The situs of said boats for the purposes of taxation, is Paducah, Kentucky; and being a part of the property of this State, and said county, they are subject to taxation there, and not elsewhere. Hays v. Pacific Mail Steamship Co., 17 How. 596; Transportation Co. v. Wheeling, 99 U. S. 273; St. Louis v. Ferry Co., 11 Wall. 423; Pullman Pal. Car. Co. v. Pennsylvania, 114 U. S. 36; Moran v. New Orleans, 112 U. S. 75; Morgan v. Parham, 16 Wall. 471; Judson on Taxation, § 186. While, for purposes of taxation, the general rule is that mobilia sequuntur personam, such is by no means the invariable rule, and in many cases tangible personal property acquires a

202 U.S.

Argument for Defendant in Error.

situs for taxation foreign to the residence of its owner. This was recently decided by this court in Union Refrigerator Transit Co. v. Kentucky, 199 U. S. 194. See also Brown v. Houston, 114 U. S. 622; Union Refrig. Transit Co. v. Lynch, 177 U. S. 149; Delaware, Lackawanna & Western Ry. Co. v. Pennsylvania, 198 U. S. 341.

Although assessed and taxed in Illinois, the same property is not exempt from taxation in Kentucky. Coe v. Errol, 116 U. S. 517.

The taxation of the vessels in Kentucky is not an interference with interstate commerce. Their home port being in McCracken County, Kentucky, and the city of Paducah, and being constantly employed and used in the streams of Kentucky, and those adjacent thereto, and when not in use kept at Paducah, they are property within the jurisdiction of said city, county and State, for the purpose of taxation, and the right of the State to tax them should not be denied. Pullman Palace Car Co. v. Pennsylvania, 141 U. S. 36; American Refrigerator Trans. Co. v. Hall, 171 U. S. 68; Old Dominion Steamship Co. v. Virginia, 198 U. S. 302; Northwestern Lumber Co. v. Chehalis County, 87 Am. St. Rep. 747; National Dredging Co. v. State, 99 Alabama, 462; Norfolk and Western R. R. Co. v. Board of Pub. Works, 97 Virginia, 23; Minburn v. Hays, 56 Am. Dec. 366; Union Trust Co. v. Kentucky, 199 U. S. 194.

No State can lay any tonnage tax, or lay any tax on interstate commerce itself, but the principle has always been recognized that the instruments by which interstate commerce was carried on were subject to state taxation as property wherever they might be situated, provided only that they were not discriminated against because of their occupation. Louisville Ferry Co. v. Commonwealth, 22 Ky. L. Rep. 446; C. C. C. & St. L. Ry. Co. v. Backus, 154 U. S. 439; Henderson Bridge Co. v. Commonwealth, 17 Ky. L. Rep. 389; Henderson Bridge Co. v. Kentucky, 166 U. S. 150; Morgan v. Parham, 16 Wall. 471.

VOL CCII-27

MR. JUSTICE WHITE, after making the foregoing statement, delivered the opinion of the court.

As in the argument counsel for plaintiff in error has not discussed the alleged error in overruling the motion to remove, we treat that question as waived and pass to the merits.

Notwithstanding, by the demurrer to the answer, it was conceded that the tie company was the owner of the alleged taxable property, that it was an Illinois corporation and that its main office was in Chicago, that it had paid taxes in Illinois upon such property, that the property was employed in interstate commerce between ports of different States, including the State of Illinois, that its steamboats were enrolled at Paducah, Kentucky, for convenience, Kentucky being the place of residence of one of its managing officers, and that its boats touched at Paducah only temporarily, never receiving or discharging cargo at that port, the Court of Appeals of Kentucky held that the property in question was subject to the taxing power of the State of Kentucky. The existence of power in the State to tax the property in question was rested solely upon the proposition that as the steamboats were enrolled at Paducah, and the name Paducah was painted upon their sterns, it was to be conclusively presumed that the home port of the vessels was at Paducah, and that such home port was the situs of the property for taxation. The barges were brought within the principle announced, because they were treated as mere accessories of the steamboats. While in the opinion the steamboats were regarded as operated under a registry, the fact is they were engaged in the coastwise trade under an enrollment and license. But this is immaterial, since vessels in order to be enrolled must possess the qualifications and fulfill the requirements necessary for registration.

To comprehend the question a chronological statement of the legislation of Congress as to the registration or enrollment of vessels, etc., is necessary.

By section 3 of an act approved December 31, 1792, 1 Stat. 287, 288, it was provided as follows:

"SEC. 3. And be it further enacted, That every ship or vessel, hereafter to be registered (except as hereinafter provided), shall be registered by the collector of the district in which shall be comprehended the port to which such ship or vessel shall belong, at the time of her registry, which port shall be deemed to be that, at or nearest to which, the owner, if there be but one, or if more than one, the husband or acting and managing owner of such ship or vessel, usually resides. And the name of the said ship or vessel, and of the port to which she shall so belong, shall be painted on her stern, on a black ground, in white letters, of not less than three inches in length. And if any ship or vessel of the United States, shall be found, without having her name, and the name of the port, to which she belongs, painted in the manner aforesaid, the owner or owners shall forfeit fifty dollars; one-half to the person giving the information thereof; the other half to the use of the United States."

On June 23, 1874, 18 Stat. 252, the foregoing provision was amended so as to allow the name of the vessel to be painted upon her stern in yellow or gold letters. In the Revised Statutes the requirement in question was separated into two sections (sections 4141, 4178), reading as follows:

"SEC. 4141. Every vessel, except as is hereinafter provided, shall be registered by the collector of that collection district which includes the port to which such vessel shall belong at the time of her registry; which port shall be deemed to be that at or nearest to which the owner, if there be but one, or, if more than one, the husband or acting and managing owner of such vessel, usually resides."

"SEC. 4178. The name of every registered vessel, and of the port to which she shall belong, shall be painted on her stern, on a black ground, in white letters of not less than three inches in length. If any vessel of the United States shall be

found without having her name and the name of the port to which she belongs so painted, the owner or owners shall be liable to a penalty of fifty dollars; recoverable one-half to the person giving the information thereof; the other half to the use of the United States."

By section 2 of the act of February 18, 1793, 1 Stat. 305, "for enrolling and licensing ships or vessels to be employed in the coasting trade," etc., the same requirements were made essential for enrollment as for registering, and by section 11 licensed vessels were specifically obliged to have the name and port painted on the stern. As incorporated into the Revised Statutes the latter provision reads as follows:

"SEC. 4334. Every licensed vessel shall have her name and the port to which she belongs, painted on her stern, in the manner prescribed for registered vessels; and if any licensed vessel be found without such painting, the owner thereof shall be liable to a penalty of twenty dollars."

By section 21 of an act approved June 26, 1884, 23 Stat. 53, 58, it was provided as follows:

"SEC. 21. That the word 'port,' as used in sections forty-one hundred and seventy-eight and forty-three hundred and thirty-four of the Revised Statutes, in reference to painting the name and port of every registered or licensed vessel on the stern of such vessel, shall be construed to mean either the port where the vessel is registered or enrolled, or the place in the same district where the vessel was built or where one or more of the owners reside."

Again, by acts approved February 21, 1891, c. 250, sec. 1, 26 Stat. 765, and January 20, 1897, c. 67, sec. 1, 29 Stat. 491, section 4178, Rev. Stat., was amended so that it now reads as follows:

"SEC. 4178. The name of every documented vessel of the United States shall be marked upon each bow and upon the stern, and the home port shall also be marked upon the stern. These names shall be painted or gilded, or consist of cut or carved or cast roman letters in light color on a dark ground,