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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

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.*

§ 14 (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 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

1 The Genesee Chief, 12 How. 443 (1851), 13 L. Ed. 1058.

2 The Magnolia, 20 How. 296 (1857), 15 L. Ed. 909; Fretz v. Bull, 12 How. 466, 13 L. Ed. 1068 (1851).

The Daniel Ball, 10 Wall. 557 (1870), 19 L. Ed. 999. In Ex parte Eaglesfield, 180 Fed. 558 (1910) E. D. of Wis., it was held that one trading in interstate commerce un

der valid coasting license on vessel in the lakes was engaged in interstate commerce and was not subject to state or municipal license.

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 Garnett, 141 U. S. 1 (1891), 35 L. Ed. 631.

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.1

§ 15 (14). Jurisdiction 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 upon 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.2 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 commonlaw remedy, where the common law is competent to give it.3

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§ 16 (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,

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 repairs 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.

8 Sec. 711, R. S. U. S. A contract to build a ship is not a maritime contract, and a lien given by a state law for materials used in such construction can be enforced against the vessel in the state court. Iroquois Trans. Co. v. Ve Laney, 205 IT S. 354, 51 L. Ed. &37 (1907)

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, common 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 busines in the state, though it may tax their property employed in the state.1

Corporations engaged in the execution of contracts for the federal government, are also protected as to such business from state interference or control.2

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 be tween 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 process 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 coporation 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

3

1 Western Union Tel. Co. v. Kansas, 216 U. S. 1, 54 L. Ed. 355 (1909); Pullman Co. v. Kansas, 216 U. S. 56, 54 L. Ed. 378 (1909). U. S. to use v. Fidelity Guar.

Co., 178 Fed. 721, Cir. Ct. E. D. of
Penn. (1909).

8 Constitution, art. IV., sec. 2; Crutcher v. Kentucky, 141 U. S. 47 (1901), 35 L. Ed. 649.

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, or factors, 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.1 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 can

1 Cooper v. Ferguson, 113 U. S. 727 (1884), 28 L. Ed. 1137. In Butler Brothers Shoe Co. v. U. S. Rubber Co., C. C. A. 8th Cir. 156 Fed. 1, in holding that a foreign corporation consigning goods to its factor business there, is engaged in interin a state, who conducts all the state commerce and is not doing business in the latter state, within the meaning of the statute relative to the admission of foreign corporations, the court said that the broad statement in Paul v. Virginia, 8 Wall. 168, that a state may exclude a foreign corporation from business or may condition its admission to do business in the state by such terms as it may deem proper, had been qualified, and the following exceptions thereto established by the decisions of the supreme court.

(a) Every corporation empow ered by state of its creation to engage in interstate commerce, may carry on that commerce in sound and recognized articles of congress in every state of the Union. Every prohibition and obstruction or burden which the other states åttempt to impose upon such busi ness is unconstitutional and void.

(b) Every corporation of every state which is in the employ of the United States has the right to exercise the necessary corporated powers and to transact the requisite business, to discharge the duties of that employment in every other state in the Union, without let or hindrance from the latter.

(c) Every corporation of every state has the absolute right to institute, maintain and defend in the federal courts and to remove to those courts its suits in any other state in the cases and on the terms prescribed by the acts of congress. This right of removal, however, by a foreign corporation doing business in the state is subject to the power of the state to provide that the license of any such company to do business in the state through the comity of the state should be revoked if the company should remove to the federal court a case which has been commenced in a state court. It is immaterial what is the motive of the state in the exercise of its lawful power. See Security Mutual Life Ins. Co. v. Prewitt, 202 U. S. 246, 50 L. Ed. 1013.

not establish a business office in the state for the transaction of intrastate business without the consent of the state. As a state has the right to exclude foreign corporations from local business it necessarily has involved therein the right to impose conditions upon their admission into the state to transact such business.1

The state power of prohibiting, absolutely or conditionally, the foreign corporations, not engaged in interstate commerce in the constitutional sense from doing business in the state is illustrated by the rulings of the supreme court already referred to sustaining state statutes regulative of the insurance business. See § 9 supra. Thus, the provisions of state statutes prescribing terms and conditions of insurance contracts have been held to be written into the policy contracts made by the parties, over-riding the will of the parties and making contracts for them contrary to their expressed intent. These statutes were sustained on the theory that the state had the power to determine the conditions under which the insurance business should be conducted, to the extent of writing these conditions in the policies for the parties and controlling the terms of their contracts, and in the case of foreign corporations such conditions would be enforced as conditions imposed upon their being permitted to do business in the state, and to which the companies are presumed to assent by doing business in the state under its laws.3

& Waters Pierce Oil Co. V. Texas, 177 U. S. 28 (1900), 44 L. Ed. 657; Philadelphia Fire Ass'n v. New York, 119 U. S. 110 (1886), 30 L. Ed. 342.

2 Orient Insurance Co. v. Daggs, 172 U. S. 557 (1899), 43 L. Ed. 552; Equitable Life Assurance Soc. v. Clements, 140 U. S. 226, 35 L. Ed. 497 (1890); New York Life Ins. Co. v. Cravens, 178 U. S. 389 (1900), 44 L. Ed. 1116.

In mutual life insurance it is obvious that the writing of different state statutes into the policy contracts is necessarily destructive

of the insurance scheme, which is based upon the uncertainty of the individual life and the comparative certainty of the average life ascertained from human experience, and which therefore contemplates the union of the interests of a large number of persons resident in different states and countries and the administration of a fund for the mutual benefit under a ingle applicatory law. New York Life Ins. Co. v. Statham, 93 U. S. 21, 23 L. Ed. 789; Bogardus v. Insurance Co., 101 N. Y. 329.

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