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(No. 12.

are spared, not only because for any reason it can best bear the burden, but also because such surroundings attach themselves to the business taxed as to render the discouragement and discipline of heavy taxation wise and politic. In the few cases in which the right to do this has been denied on the ground of inequality, the courts have affirmed it as being beyond question. See Durach's Appeal, 62 Penn. St. 491, 494 ; Fletcher v. Oliver, 25 Ark. 289; State v. Parker, 32 N. J. 426, 431. The federal government has gone to a great extent in the same direction, levying duties in some cases which, in their results, are prohibitory, and in the case of the state banks, purposely taxing them out of existence. Veazie v. Fenno, 8 Wall. 533. This case does not call for an expression opinion upon legislation of that extreme character, for we have nothing in this law that goes beyond the ordinary legislation when it is enacted for the double purpose of revenue and regulation.

The state has never shown any disinclination to make things morally and legally wrong contribute to the public revenue when justice and good morals seemed to require it. If it were to act upon the idea of refusing to derive revenue from such sources, it ought to decline to receive fines for criminal offences with the same emphasis that it would refuse to collect a tax from an obnoxious business. If the tax is laid by way of discouragement or regulation, it has the same general object in view with the fine; not only as it affects the person taxed and the community, but also in the use to which the money is devoted. Yet the Constitution expressly provides for a library fund, to be derived from the violations of the public law. Const. art. 13, sec. 12. A provision that may as legitimately be said to be a license of crime as a tax on a traffic may be said to be a license of the traffic.

Taxes upon business are usually collected in the form of license fees, and this may possibly have led to the idea that seems to have prevailed in some quarters, that a tax implied a license. But there is no necessary connection whatever between them. A business may be licensed and yet not taxed, or it may be taxed and yet not licensed. And so far is the tax from being necessarily a license that provision is frequently made by law for the taxation of a business that is carried on under a license existing independent of the tax. Such is the case where cities, under proper legislative authority, tax occupations which are carried on under licenses from the state. Ould v. Richmond, 22 Grat. 464 (1 Am. L. T. R. N. S. 241); Napier v. Hodges, 31 Texas, 287 ; Cuthbert v. Conley, 32 Geo. 211; Wendover v. Lexington, 15 B. Monr. 258. The license confers the privilege, but it is not perceived why a privilege thus conferred should not be taxed as much as any other. The federal laws give us illustrations of the taxation of illegal traffic. A case in point was that of the taxation of the liquor traffic in this state previous to the repeal of the prohibitory laws; the federal law found a business in existence and it taxed it without undertaking to give it any protection whatever. McGuire v. Com. 3 Wall. 387; Purvear v. Com. 5 Wall. 475. What would have prevented the state from taxing the same traffic at the same time? Is it any more restricted in the selection of subjects of taxation than the general government is? If one may tax, and at the same time refuse to protect, may not the other refuse to do the same? The only reason suggested

Vol. II.)


(No. 12.

for a negative reply to these questions is that it was the state itself, not the United States, that made the business illegal, and it would be inconsistent and absurd to declare it illegal and at the same time tax it. But how the inconsistency would appear in one case rather than the other is not apparent. The illegality was declared by competent authority, and yet the federal government taxed the trade, at the same time refusing or being unable to protect it. If protection because of the tax was due to the very thing upon which the tax was imposed, there would be an inconsistency in taxing a prohibited trade ; but treating taxation, however and wherever it may fall, as the return for the general benefits of government, —- for the protection to life, liberty, the social and family relations, as well as to business and property, — which is the only legal and proper idea of taxation, there is no inconsistency whatever in making a thing which is not protected one of the measures or standards by which to determine how much the party owning or supporting it ought to pay to the government. If one puts the gov. ernment to special inconvenience and cost by keeping up a prohibited traffic or maintaining a nuisance, the fact is a reason for discriminating in taxation against him; and if the tax is imposed on the thing which is prohibited, or which constitutes the nuisance, the tax law, instead of being inconsistent with the law declaring the illegality, is in entire harmony with its general purpose, and may sometimes be even more effectual. Certainly whatever discriminations are made in taxation ought to be in the direction of making the heaviest burdens fall upon those things which are obnoxious to the public interest, whenever that is practicable.

For these reasons we think the objections which have been made to the law have no validity.

The decree of the superior court dismissing the bill will be affirmed with costs.


ADMIRALTY. 1. Common carriers of passengers are bound to use extraordinary care and diligence, and

are excused only by reason of force or pure accident. Koch v. Oregon Steamship Co.

381. 2. An undertaking to carry a passenger in the steerage of a steamship from San Francisco

to Portland includes the furnishing of such passenger with a berth, unless there is a

fair understanding to the contrary. 16. 3. A steerage passenger is entitled to the use of the steerage room, to walk about, or sit

down in, during the voyage, without the risk or inconvenience of freight therein; but if freight is stowed therein it is at the risk of the carrier, and it is his duty so to stow and secure it that no harm will be caused to the passengers by it ; nor can the carrier impose any arbitrary regulation upon the passengers with a view of diminishing such risk, - such as to remain in their berths during the voyage, or any unusual portion

of it. Ib. 4. Where a number of boxes of tin were stowed in the after part of the steerage, so as to

make a pile six feet in length, three feet in width, and from five to eight feet in height, without any means of preventing the top tiers from sliding off on the floor in case of rough weather ; and a steerage passenger sat down by the side of said pile, and was injured by the rolling of the

ship, causing some of the boxes to fall upon her. Helil, that the stowing of the tin in the manner in which it was done was gross negli

gence, and the carrier was liable to the passenger in damages for the injury. Ib. 5. Disfigurement of the person, caused by such an injury, is a proper subject of damages;

but in estimating them it is proper to consider the condition and circumstances of the

party disfigured. Ib. 6. A pier erected in the navigable water of the Mississippi River for the sole use of the

riparian owner, as part of a boom for saw-logs, without license or authority of any kind except such as may arise from his ownership of the adjacent shore, is an unlawful structure, and the owner is liable for the sinking of a barge run against it in the

night. Atlee v. N. W. Union Packet Co. 317. 7. Pilots on the navigable rivers of the interior are selected, examined, licensed mainly

for their knowledge of the topography of the streams where they are employed ; and a constant and familiar acquaintance with the towns, banks, trees, &c., and the relation of the channel to them, and of the snags, sand-bars, sunken barges, and other dangers of the river as they may arise, is essential to the character of a skilful pilot. Hence, the pilot in this case, who ran his vessel against a pier which he should have known was there, but did not, was in fault for want of that knowledge. He was also in fault for hugging the shore, near where he knew the mill and boom of appellant were, in a dark night, when the current of the river would have carried him into safe and deep water further out. Both parties being in fault, the damages are to be divided accord

ing to the admiralty rule in such case. Ib. 8. Whilst the general maritime law is the basis of the law of the United States, as well

as of other countries, it is only so far operative in this, or any country, as it is adopted by the laws and usages thereof. It has no inherent force of its own. The Lotawana,

290. 9. In particular matters, especially such as approach a merely municipal character, the

received maritime law may differ in different countries without affecting the general integrity of the system as a harmonious whole. 1b. 10. The general system of maritime law, which was familiar to the lawyers and states

men of this country when the Constitution was adopted, was intended and referred to when it was declared in that instrument that the judicial power of the United States shall extend “to all cases of admiralty and maritime jurisdiction.” Thus adopted, it became the maritime law of the United States, operating uniformly in the

whole country. Ib. 11. The question as to the true limits of maritime law and admiralty jurisdiction is ex

clusively a judicial question, and no state law or act of Congress can make it broader or narrower than the judicial power may determine those limits to be. But what the law is within those limits, assuming the general maritime law to be the basis of the system, depends on what has been received as law in the maritime usages of this coun

try, and on such legislation as may have been competent to affect it. Ib. 12. The decisions of this court illustrative of these sources, and giving construction to

the laws and Constitution, are especially to be considered ; and when these fail us, we must resort to the principles by which they have been governed. Ib. 13. It is settled by repeated adjudications of this court, that material-men furnishing

repairs and supplies to a vessel in her home port do not acquire thereby any lien

upon the vessel by the general maritime law as received in the United States. ib. 14. Whilst it cannot be supposed that the framers of the Constitution contemplated that

the maritime law should remain unchanged, the courts cannot change it ; they can only declare it. If within its proper scope any change is desired in its rules, other

than those of procedure, it must be made by the legislative department. Ib. 15. Semble, That Congress, under the power to regulate commerce, has authority to es

tablish a lien on vessels of the United States in favor of material-men, uniform through

out the whole country Ib. 16. In particular cases, in which Congress has not exercised the power of regulating

commerce, with which it is invested by the Constitution, and where the subject does not in its nature require the exclusive exercise of that power, the states, until Congress acts, may continue to legislate. 16. 17. Hence, liens granted by the laws of a state in favor of material-men for furnishing

necessaries to a vessel in her home port in said state are valid, though the contract to furnish the same is a maritime contract, and can only be enforced by proceedings in

rem in the district courts of the United States. 1b. 18. Any person having a specific lien on, or a vested right in, a surplus fund in court,

may apply by petition for protection of his interest under the 43d Admiralty Rule. 16. 19. Separate libels were filed in 1871 against a steamboat, for wages, for salvage, for

supplies furnished at her home port, and for the amount due on a mortgage. Held, on the evidence, that the lien for supplies had not been perfected under the state law; and, if it had been, that the libels for such supplies could not be sustained prior to the recent change in the 12th Admiralty Rule. Held, also, that the libel upon the mortgage could not be sustained as an original proceeding ; but that the mortgagees, having petitioned for the surplus proceeds of the vessel, were entitled to have the same applied to their mortgage. Ib.

See INSURANCE, 4, 5.


BANKRUPTCY. 1. Accrued interest constitutes part of a debt provable against the estate of a bankrupt.

Sloan v. Lewis, 259. 2. Where a record shows jurisdiction, an adjudication can only be assailed by direct

proceedings in a competent court. Ib. 3. Two notes were discounted by plaintiff in error. Before their maturity, upon urgent

request, defendant in error took them up, and gave, in lieu of them, a single judgment note equal in amount to the two. A few days afterwards judgment was entered for the amount of the new note, and a levy and sale made. The defendant in error, having been adjudged a bankrupt, suit was instituted by his assignee to recover the value of the property sold, on the ground that the giving of the judgment note was a fraudulent preference, the debtor being at the time insolvent. The court below gave certain instructions appropriate to the case, upon which a jury found for the plaintiff on the question of insolvency. The several instructions, which were the alleged grounds of error, are here examined and approved, the appellate court refusing to disturb the decree, which was to the effect that the giving of the judgment note was a preference.

First Nat. Bank of Clarion v. Jones, 135. 4. In case of a sale in the bankruptcy court of property subject to two mortgages, and

the proceeds are sufficient to pay the senior mortgage in full and all costs and ex

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