The provision in § 2400 of the statutes of Minnesota of
1894, requiring each surveyor general to survey all logs and
timbers running out of any boom now chartered or which may
hereafter be chartered by law in his district, refers to
corporations organized under a general law, as well as to those
whose organization is provided for by special act.
The business of booming logs on the waters of streams running
through the forests of the West is a lawful business, and the
Minnesota Boom Company was a lawfully organized corporation for the
purpose of doing such lawful business.
The statute of Minnesota requiring all logs running out of a
boom to be surveyed, inspected, and scaled is compulsory, and such
legislation was within the power of the state.
The scale bills in this case were certified as required by the
laws of the state, and, being so certified, were competent
evidence, and when taken in connection with other evidence,
supported the finding of the court that the work was done as
alleged.
A record in the books of the surveyor general is not preliminary
to a right to a lien for such work.
Page 176 U. S. 127
The logs of one party passing the boom can be subjected to a
lien for surveying and scaling not only his own logs, but also for
surveying and scaling the logs of other parties, as any log owner
may send his logs down the river without the use of the boom,
taking proper care of them, and if he uses the boom, he takes it
subject to the conditions prescribed by the legislature.
The improvement made in the Mississippi River by the
construction of the boom and its works, and the exaction of
reasonable charges for the use of such works, including fees of
state officials for inspecting and scaling, if done under state
authority, cannot be considered in any just sense a burden upon
interstate commerce.
On August 1, 1893, the plaintiff in error commenced its action
of replevin against one of the defendants in error, John H. Mullen,
to recover possession of a quantity of logs said to be of the value
of $15,000. Mullen answered, alleging that he was the Surveyor
General of logs and lumber for the Fourth District of Minnesota;
that, as such surveyor general, he had scaled and surveyed a large
number of logs in a boom belonging to the Minnesota Boom Company,
for which service he was entitled to fees amounting to the sum of
$11,088.92, and had seized these logs under the statute giving him
a lien to enforce payment thereof, and praying for a return of the
property, or, if that could not be had, for judgment for the sum of
$11,088.92, together with ten percent, $1,108.89, costs of
collection as provided by law, and interest. To this answer the
plaintiff filed a reply, challenging on several grounds the
validity of the claim for fees and lien. Thereafter the State of
Minnesota was, on its application, made a party defendant, and
answered setting forth in substance that, since the filing of the
pleadings, the defendant Mullen had received from the State of
Minnesota the full amount of his fees, and had transferred his
claim to the state, and adopting the answer of Mullen, so far as it
was applicable. On these pleadings, the case went to trial before
the court without a jury. No special findings of fact were made,
but only a general finding for defendants. A bill of exceptions was
preserved, reciting the testimony, showing that at the close, the
plaintiff requested of the court the following declarations:
"First. That it has not been shown that the logs for which
Page 176 U. S. 128
defendants claim fees for scaling in this case ever ran into or
through any boom chartered by law and therefore the defendants have
no right to the fees claimed or to any lien on the plaintiff's logs
therefor; but the court refused to make such declaration; to which
ruling and order the plaintiff then and there duly excepted."
"Second. That the defendants have not shown themselves entitled
to any lien upon the plaintiff's logs:"
"a. Because the scale bills, defendants' Exhibits 3 and 4, are
not evidence of the scaling of the logs therein described."
"b. Because it appears affirmatively that the said scale bills
were not, nor were either of them, recorded in any book in the
office of the surveyor general of that district."
"c. Because it appears that a very great proportion of the logs
mentioned in these scale bills, defendants' Exhibits 3 and 4, were
not the plaintiff's logs, and that the work done was not done at
the request of the plaintiff or anybody else."
"d. Because the pretended records of said scale bills were not
in fact any record whatever."
"e. Because it does not appear that any of the log marks shown
on defendants' scale bills, Exhibits 3 and 4, were ever recorded in
the office of the surveyor general of logs and lumber of the Fourth
Lumber District of the State of Minnesota in accordance with the
provisions of title 3, of chapter 32, General Statutes of the State
of Minnesota."
"But the court refused to make such declaration; to which ruling
and order the plaintiff duly excepted."
"Third. That the statute under which the defendants claim a
right to scale these logs and recover fees therefor, and to a lien
on the plaintiff's logs therefor, is, as applied to the place and
business where this scaling was done, an attempted regulation by
the state of interstate commerce, and is unconstitutional and void,
being in contravention of subdivision 4, of section 8 of article 1
of the Constitution of the United States."
Upon the general finding, the court entered a judgment for the
defendants for a return of the property or the payment of the fees,
costs, and interest. Thereupon the plaintiff
Page 176 U. S. 129
brought the case directly to this Court by writ of error on the
ground that the laws of Minnesota, under which these fees and lien
were claimed, were in contravention of the Constitution of the
United States.
The facts developed on the trial, and upon which the questions
of law arise, are these: the State of Minnesota was by law divided
into five districts for the inspection of logs and lumber. The
fourth district was defined as follows: "The Mississippi River and
its tributaries below the outlet of Lake Pepin to the southern line
of Wabasha County." The defendant Mullen was the duly appointed and
qualified surveyor general of logs and lumber for this district,
and as such performed the services for which the fees and lien were
claimed. The Minnesota Boom Company was a corporation organized
under the general laws of the State of Minnesota in April, 1889.
The purposes for which the corporation was organized are stated in
article 1 of its charter:
"The general nature of the corporate business shall be the
construction, maintenance, and use of booms, dams, and all other
structures of any kind necessary or advantageous for the
performance of the logging and lumbering business hereinafter
described, upon the Mississippi River, or either bank thereof,
between the mouth of the Chippewa River, or a point opposite
thereto, and the point where the easterly boundary line of the City
of Winona meets the Mississippi River or a point opposite thereto,
and also upon, or on any side or bank of, any slough, bayou,
branch, or part of the Mississippi River between or connecting with
said river at any point between the extreme limits aforesaid. The
business of the corporation beside the construction, maintenance,
and operation of said structures shall be gathering, driving,
booming, storing, assorting, rafting, brailing, and otherwise
handling any and all logs, lumber, and timber of any kind, between
the limits and upon the waters and territory above stated, for any
and all persons having any logs, lumber, or timber upon any of said
waters or within said territory, and this corporation shall have
the right to charge and receive, and shall charge and receive, from
any and all persons upon or in connection with
Page 176 U. S. 130
those logs, lumber, or timber for any work or services done by
this corporation, a proper sum and compensation by it to be fixed
for such work or services, and this corporation shall also do any
other business incident to any part of the general business
aforesaid."
It constructed a boom on West Newton Slough, within the limits
of the Fourth Inspection District, above defined. This slough is an
arm or minor channel of the Mississippi River, bounded on its
southwestern side by the main land, constituting the State of
Minnesota, and on the other side by an island, extending up and
down the river about three miles, and dividing this slough from the
main channel of the river. The works of the boom were in this
slough, but at the upper end or the island, extending diagonally
across the river to the Wisconsin shore, was a structure called a
shear boom, so arranged that, when closed, it turned all the logs
coming down the river into the upper end of the boom. When one end
of it was released, it floated down the stream and thus allowed
free passage up and down the main channel. Above the head of this
boom the Chippewa River empties into the Mississippi. The Chippewa
River is wholly within the limits of the State of Wisconsin, and
the logs, which this boom was constructed to secure, and which in
fact it did secure, were mainly logs coming out of that river and
which had been cut within the limits of the State of Wisconsin.
The statutes of Minnesota, so far as they are pertinent to this
inquiry, in reference to booms, scaling, and surveying, are the
following:
"Any corporation formed under this title in whole or in part for
the improvement of any stream and driving logs therein or for
holding or handling logs therein which shall have taken prior
possession of such stream, or any considerable portion thereof,
upon which portion no other person or corporation has erected any
dams or other improvements and which may have need of improvement
of that purpose shall have power to improve such streams and its
tributaries by clearing and straightening the channels thereof,
closing sloughs, erecting sluiceways, booms of all kinds, side,
rolling, sluicing,
Page 176 U. S. 131
and flooding dams or otherwise if necessary, but shall in no
case in any manner materially obstruct or impede navigation upon
such stream or erect any dam or other obstruction below the head of
steamboat navigation. Every such corporation which shall so improve
a stream and so keep in repair, and operate its works so as to
render driving logs thereon reasonably practicable and certain may
charge and collect reasonable and uniform tolls upon all logs,
lumber, and timber, driven, sluiced, or floated on the same, and
may take possession of all logs put into such stream or upon
rollways, so as to impede the drive when the owners thereof or
their agents shall not have come upon the stream adequately
provided with men, teams, and tools for breaking the rollways and
driving such logs in season for making a thorough drive down such
stream without hindering the main drive, and shall also, at the
request of the owner of any logs and timber put into said streams,
take charge of the same and drive the same down and out of such
stream, or down such stream so far as their improvements may
extend, and charge and collect therefor of the owner or party
controlling said logs and timber reasonable charges and expenses
for such services. And such corporation shall for all such tolls,
costs, and expenses have a lien on the logs for which same was
incurred, and may seize, in whoever possession found, and hold a
sufficient amount thereof to pay the same, and make sale thereof
upon giving ten (10) days' notice in the manner provided for
notifying sales on execution upon the judgment of justice of the
peace, or may enforce such liens as other liens are enforced by
proper proceedings for that purpose, or may ask, demand, sue for,
collect, and receive from the owner or owners of such logs the
amount due for any such tolls. No injunction order shall be granted
to prevent the use or "
brk:
enjoyment of any such improvement or abate any such dam
necessary thereto unless such corporation shall fail for sixty (60)
days after judgment, from which no appeal has been taken, to pay
any damages recovered for any injury done by or in consequence of
its works. Any corporation formed for the improvement of a stream,
which is in whole or in part a boundary between this and an
adjoining state,
Page 176 U. S. 132
and authorized to drive logs or maintain booms or dams in such
stream, shall have authority to purchase and hold stock in
corporation or corporations, in such adjoining state created for
similar purposes upon the same stream, or to consolidate or
otherwise unite with such corporation or corporations in such
adjoining state, whenever the purposes for which the corporation in
this state is organized can be better effected thereby. Provided,
that no such purchase or consolidation or other union shall be made
without the assent of holders of two thirds (2/3) of the capital
stock of such first (1st) named company. Provided, that all dams
and other works erected under the authority given by this act shall
be so constructed, used, and operated as to facilitate and expedite
the driving and handling logs and lumber upon the stream upon which
the same may be erected, and the corporation making such
improvements hereunder shall have no right to stop logs destined
for points below its works on said stream except where dams have
been constructed to accumulate water for sluicing logs, and
flushing the river below the same, and in such case shall not
detain logs in any part of the river so as to form a jam or prevent
the prompt delivery of logs destined for points below the works
constructed under authority of this act.
(Section 2 of chapter 221 of the Laws of the State of Minnesota
for the year 1889.)
"Each surveyor general, by himself or deputy, shall survey all
logs and timber running out of any boom now chartered, or which may
hereafter be chartered by law in his district, and at the end of
each week, when he has surveyed any such logs or timber, make out
and deliver to the owner of such boom, or the managing agent
thereof, a true and correct scale bill, stating the date of such
survey, the number of logs and pieces of timber, the marks thereon
respectively, and the number of feet of each mark so surveyed
during the week, and shall sign the same, and he shall immediately
record such bill in the books of his office, and, upon being paid
his fees for such services, shall deliver the original bill to the
owner or managing agent of such boom, and all boomage or fees of
such boom on any logs or timber shall be collected
Page 176 U. S. 133
in accordance with such survey. and all scale bills heretofore
made and signed by any such surveyor general, or the record thereof
in the respective offices of such surveyor generals, or copies of
such records, duly certified, shall, in all courts of this state,
be
prima facie evidence of the matters stated in such
scale bill, record, or copy."
(Section 14 of chapter 32 of the General Statutes of Minnesota
for the year A.D. 1866, being now section 2400 of the Statutes of
Minnesota of 1894.)
"The fees of surveyor generals shall be: for surveying, scale
marking, making scale bills and recording the same and posting in
the ledger, five cents per thousand feet for all logs and timber
required to be surveyed; for surveying lumber, twenty-five cents
per thousand feet, for traveling to perform any service more than
two miles from their respective offices, five cents per mile going
and returning; for recording any log-mark, fifty cents; for making
and certifying a copy of any matter which may be of record in his
office, or for making any duplicate scale bill, ten cents per
folio; for recording any instrument in writing authorized to be
recorded in his office, other than scale bills, ten cents per
folio, payable when such instrument is presented for record and
before it is recorded, and no such instrument shall be deemed to be
recorded until it is entered upon the index to the record. And for
the purpose of securing to the surveyor general the payment of his
fees, whether the same are for traveling, surveying, making scale
bills, or recording the same or for any or all of such services,
such surveyor general shall have a lien upon all such logs, timber,
or lumber surveyed and marked by him, for the amount due for his
services thereon, and may retain such lien by affixing to the scale
bill of such logs, timber, or lumber, before the "
brk:
delivery thereof, a true statement of the amount due him
thereon, and that he scaled such logs, timber, or lumber, relying
upon such lien, and that he claims a lien thereon for such amount,
and costs of collection, and thereupon such surveyor general may
take actual possession of a sufficient quantity of such logs,
timber, or lumber, and may retain the same until he is paid the
amount due him thereon, and such logs, timber, or lumber shall not
be removed or
Page 176 U. S. 134
taken from the possession or control of such surveyor general
until such payment is made. If the amount is not paid within sixty
days after the delivery of such scale bill, the surveyor general
may sell at public auction enough of such logs, timber, or lumber,
to pay the amount due him, with the costs of collection, first
giving ten days' notice of such sale, by posting up five written
notices thereof, one in his office, and one in each of the four
most public places in the town or city where the sale is to be
made, and at such sale the surveyor general may become the
purchaser. The sale may be made by the sheriff or any constable of
the county, and the only costs of collection allowed shall be ten
percent on the amount due, for taking care of the property and, to
the officer making the sale, ten percent on the amount payable to
the surveyor general.
(Section 16 of chapter 32 of the General Statutes of 1866, being
section 2402 of the Statutes of 1894.)
"The books of record in the surveyor general's office in each
district shall be:"
"First. A book in which shall be recorded the log-mark of any
person desiring to have the same recorded."
"Second. A book in which shall be recorded all bills of sale,
mortgages, and orders, and other instruments in writing for the
sale, transfer, encumbrance, or delivery of any logs or timber in
the same district."
"Third. A book in which shall be recorded the scale bills of all
the logs, timber, and lumber surveyed by the surveyor general."
"Fourth. A book, to be kept in ledger form in which shall be
posted and recorded, as soon as any logs or timber is surveyed,
separately and under their respective marks, all the logs and
timber of each particular mark surveyed, together with the date of
scale, the number of logs and the number of pieces of timber, to
whom scaled, if to anyone, and the number of feet, which book shall
be kept posted up so that it will show the matter above stated
concerning each mark of logs scaled during each month. And the
surveyor general shall make and deliver to any person authorized to
demand the same a certified transcript of said record, as to any
mark or
Page 176 U. S. 135
marks of logs or timber, upon being paid the fees prescribed in
section sixteen of this chapter, and the sum of twenty-five cents
for his certificate of the same, and an index of the names and
marks contained in each of said books shall also be kept. Any books
of the description before named, which have been kept in the office
of any such surveyor general and which belong to said office, are
hereby declared to be the records of said office, and to have and
be of the same validity, force, and effect as if the same had been
kept by express authority of law. All the books of record
hereinbefore mentioned and authorized to be kept in the office of
any surveyor general are hereby declared to be public records, and
of as high degree of evidence as the original instrument therein
recorded, and shall, in all courts and places in this state, be
taken and held to be
prima facie evidence of the matters
therein stated, and such books shall not be removed from the
surveyor general's office, but any paper purporting to be a copy of
any matter or thing of record in such office, certified under the
hand of the surveyor general or his deputy to be a correct
transcript from the records in such office, shall, in all the
courts of this state, be received and read as
prima facie
evidence of the matters and things in such record contained, and of
the matters therein stated."
(General Statutes 1866, c. 32, section 17. As amended 1877, c.
18, section 3, being now section 2403 of the Statutes of Minnesota
of 1894.)
In addition to these statutes must be noticed c. 401, Laws of
Minnesota, 1895, which is entitled "An Act for the Relief of John
H. Mullen, and to Appropriate Money therefor," the first two
sections of which are as follows:
"SEC 1. That the sum of fifteen thousand eight hundred (15,800)
dollars be, and the same is hereby, appropriated out of any money
in the state treasury not otherwise appropriated for the relief of
John H. Mullen for disbursements made and expenses incurred by him
while in the performance of his duty as Surveyor General of the
Fourth District of the State of Minnesota, in accordance with the
instruction of the Governor, and the state auditor is hereby
instructed to draw his warrant upon the state treasurer for said
amount and deliver the same
Page 176 U. S. 136
to said Mullen, and the state treasurer is hereby directed to
pay the same."
"SEC 2. Before said payment is made, said Mullen shall assign to
the State of Minnesota any and all claims which he may have for
labor performed and expenses and disbursements incurred as such
surveyor general, and thereupon the State of Minnesota shall
proceed to collect the same in the name of said Mullen or
otherwise, as the attorney general may direct, and either by
actions now pending or which may hereafter be brought. In case the
State of Minnesota shall recover more than the amount hereby
appropriated, the remainder shall be paid over to said Mullen in
the same manner as provided by section one (1) of this act."
Under the authority of this statute, the defendant Mullen
received payment of the amount charged for fees, etc., and assigned
his claim to the state, and under and by virtue of this assignment
the state became a party to this litigation, as heretofore
stated.
MR. JUSTICE BREWER delivered the opinion of the Court.
Upon the foregoing facts, the plaintiff contends: First. That
the boom at the West Newton Slough, through which the logs scaled
by the defendant Mullen passed, was not "any boom . . . chartered
by law" within the scope of section 2400 of the Statutes of 1894.
This contention cannot be sustained. The words "chartered by law"
are not to be understood as referring simply to corporations
incorporated under special acts. A corporation which is organized
under a general law is as much "chartered by law" as one whose
organization is provided for by special act. So that, on the face
of this
Page 176 U. S. 137
statute, and giving to its words their natural meaning, it
includes every corporation, whether incorporated under general or
special law, with authority to maintain a boom. The mere fact that
in early times four special charters were granted to boom companies
cannot work any limitation upon the meaning of the words used in
this statute. If the Legislature of Minnesota had purposed any such
distinction, its language would have been more apt. It would not
have used words broad enough to have included any corporation of
the kind described.
As a matter of fact, this corporation was organized some
eighteen days before chapter 221 of the Laws of 1889 was passed.
Prior to that time, there was an act (General Statute Minnesota,
1866, c. 34, section 1, as amended by c. 13, Laws Minnesota, 1873)
which authorized the formation of corporations for various purposes
named, and also "other lawful business." Under that statute, this
corporation was formed. That the business of booming logs on the
waters of streams running through the forests of the west is a
lawful business cannot be doubted.
In
City of Erie v. Canfield, 27 Mich. 479, 482, the
Supreme Court of Michigan said:
"It is clear that, on a river like the Manistee, which is
navigable by steamers for a long distance, but down which logs by
the million are floated and gathered in booms every season -- where
in fact the principal industry consists in cutting, floating, and
manufacturing into lumber the forests in its vicinity, and where
the river is more valuable for this floatage than for any other
navigation, the necessity and convenience of this floatage must be
considered in any rules laid down for the public use of the stream,
and the need of booming facilities to render the floatage of value.
Indeed, to take away the privilege of booming would be to strike a
fatal blow at the principal commerce on the stream, for the vessels
which ply between Manistee and other ports are loaded principally
with the lumber which the mills along the shores of Manistee Lake
and River are enabled, by means of the privilege of floating and
booming logs upon these waters, to manufacture and place
Page 176 U. S. 138
upon the market. It is just and reasonable, therefore, and
conducive to the best interests of commerce, that the right of
navigating the river should be exercised with due regard to the
necessity for booming facilities, and the former is not so far
paramount as to render the latter a nuisance whenever and wherever
it encroaches upon waters navigable by the large vessels which
enter this stream."
And in
Pound v. Turck, 95 U. S.
459, is a clear recognition of the lawfulness of this
booming industry, as appears from the following quotation from page
95 U. S.
464:
"There are within the State of Wisconsin, and perhaps other
states, many small streams navigable for a short distance from
their mouths in one of the great rivers of the country, by
steamboats, but whose greatest value in water carriage is as
outlets to saw logs, sawed lumber, coal, salt, etc. In order to
develop their greatest utility in that regard, it is often
essential that such structures as dams, booms, piers, etc., should
be used which are substantial obstructions to general navigation,
and more or less so to rafts and barges. But to the legislature of
the state may be most appropriately confided the authority to
authorize these structures where their use will do more good than
harm, and to impose such regulations and limitations in their
construction and use as will best reconcile and accommodate the
interest of all concerned in the matter."
Indeed, it would strike a serious blow at the legislation of
many of the northwestern states, and an immense volume of business
that has been carried on under the authority of that legislation,
to hold that the booming of logs was not a lawful business.
That those words, "other lawful business," as found in the
statute, are not to be narrowly construed, but are broad enough to
include an incorporation for this purpose is made clear by the
decision of the Supreme Court of Minnesota in
Brown v.
Corbin, 40 Minn. 508, 509, in which the court said:
"Defendants invoke the rule that when particular words are
followed by general ones, the general words are restricted in
meaning to objects of the kind particularly enumerated,
Page 176 U. S. 139
and therefore that the phrase 'or other lawful business' must be
limited to a business of the same kind as those previously
enumerated. We think the rule invoked is not applicable, at least
in the narrow and restricted sense in which defendants seek to
apply it. The kinds of business specifically enumerated bear no
common analogy to each other except that they are all for pecuniary
profit, and of strictly private character as distinguished from
those to be carried on by
quasi-public corporations
authorized to exercise the right of eminent domain. Evidently the
expression 'or other lawful business' was added as a sort of
catch-all, for the purpose of including any kind of business for
pecuniary profit not elsewhere provided for, and which might have
been omitted from the previous particular enumeration."
The corporation, then, having a legal existence at the time the
act of 1889 was passed, section 3 of the act expressly provided
that it should apply to corporations previously organized for the
purposes specified in section 2. In other words, all the rights,
privileges, and powers conferred by the act of 1889 were by this
section given to existing corporations. So that we have the case of
a corporation, organized under the general law of the state, given
by subsequent statute full power in reference to the maintenance of
a boom, and in fact maintaining a boom, and the case therefore
comes within the specific description in section 2400 of a boom
chartered by law.
Further than that, the Legislature of Minnesota accepted the
claim of the surveyor Mullen as valid under its laws, and thus
impliedly recognized the boom company, involved in this
controversy, as one chartered by law within the scope of the
statutes providing for inspection, scaling, and charges
therefor.
The second contention is that the statutes of Minnesota were not
intended to and do not in fact give the surveyor general any lien
upon the logs of private parties for inspecting and scaling logs
run through chartered booms. Reference is made by counsel to
several statutes in which there is provision for the action of the
surveyor general in surveying and scaling lumber at the instance of
parties interested. We deem it
Page 176 U. S. 140
unnecessary to investigate those statutes, for the sections
quoted plainly indicate that the survey and scaling in case of a
chartered boom is not solely at the instance of the owner or owners
of the logs, but is compulsory. Section 2400 declares that
"the surveyor general, by himself or deputy, shall survey all
logs and timber running out of any boom now chartered or which may
hereafter be chartered by law in his district."
To those unfamiliar with the logging business as carried on in
the timber regions of the north and northwest, this compulsory
surveying and scaling may seem unnecessary, but all legislation may
rightfully be adjusted to the actual operations of business, being
intended to facilitate those operations and protect all who are
engaged therein. Many are engaged in the cutting of logs in these
lumber districts. That business is facilitated by any system which
permits those parties to turn their logs into an adjacent stream
and let them float down to some place where they can be collected
and brailed. In that way, each individual cutter is saved the
necessity of brailing his logs at every place where he may bring
them to the water. The several states in which these lumber
districts are situated have assumed the power of taking charge of
these logs thus put singly into a stream, collecting them at one
place, separating them to their respective owners, and thus
facilitating the forwarding in raft to market. Of course, such work
entails expense, and the expense is rightfully charged upon the
property thus separated and marked. The thought in this respect is
well expressed by the Supreme Court of Minnesota in
Osborne v.
Knife Falls Boom Corp., 32 Minn. 412, 419.
"Now it appears that there is a large number of persons . . .
owning standing timber upon the upper waters of the St. Louis and
upon its tributaries, who must float their logs to market down the
St. Louis, some to Fond du Lac, Duluth, or Superior, and some to
Cloquet, or other points above and near Knife River Falls. The
interest of the latter requires that their logs should be stopped
before passing Knife River Falls; the interest of the former that
their logs should be allowed to run over them without interruption.
In
Page 176 U. S. 141
this conflict, who is to determine how the right of floatage
upon this common highway shall be enjoyed? Who is to fix upon the
just and proper compromise of their conflicting interests?
Obviously, the legislature -- that department of government which,
in the exercise of a lawmaking and a police power, prescribes the
rules by which the use of public highways in general is regulated,
Pound v. Turck, 95 U. S. 459;
Watts v.
Tittabawassee Boom Co., 52 Mich. 203, and save as controlled
by paramount law -- that is to say, in this instance, by our state
constitution or Enabling Act -- the discretion of the legislature
in the premises is practically unlimited. It may enact laws
prescribing the manner in which the common right of floatage shall
be enjoyed. It may determine what means shall be adopted, and by
what agency, to secure results which, in its judgment, are the best
and fairest practical compromises of conflicting interests -- the
best attainable good of all concerned.
Pound v. Turck,
95 U. S.
459;
Duluth Lumber Co. v. St. Louis Boom Co.,
17 F. 419. In the exercise of its legislative discretion, it may
authorize suitable means and instrumentalities to secure this end
to be provided and employed by a private person or by a
corporation, and it may prescribe what these means and
instrumentalities may be -- as booms, dams, piers, sluiceways --
and what use may be made of them, and, in general, in what manner
the business shall be conducted. . . . On the whole, this is an
improvement of the river for the benefit of all concerned in its
use, and one for which it is therefore competent for the
legislature to require those using the river to make
compensation."
In furtherance of the thought thus expressed, the Legislature of
Minnesota has given the right to boom companies duly incorporated
to take possession of the great mass of floating logs coming down a
stream, and requires that those logs thus taken possession of shall
be inspected and scaled under the supervision of some state
official. In that way, each individual owner and cutter has a
guaranty of safety in respect to his logs, and the general
interests are so manifestly subserved that there can be no
reasonable doubt of the legislative power
Page 176 U. S. 142
of supervision, inspection, and scaling. And, the language of
the statute being mandatory, we are of the opinion that such was
the intent of the legislature, and that such legislation is within
its power.
A third proposition is that it is not shown that the defendant,
Mullen, complied with the statutes of the State of Minnesota which
give a lien on logs so as to be entitled to any lien on these logs,
or any right of possession thereof, and it is with reference to
this matter that the second declaration of law was asked by the
plaintiff. The contentions of the plaintiff in this respect seem to
be first that the scale bills were not of themselves competent
evidence, and that without them there was no clear and satisfactory
evidence of the number of feet surveyed and scaled; second, that
because they were not recorded in the books of the surveyor
general, the right to a lien had not arisen, and third that the
testimony shows that the logs in fact surveyed and scaled and for
which these fees and lien were claimed were not all the property of
this plaintiff.
With reference to the general proposition that the defendant,
Mullen, by himself and deputies, was busy in scaling logs in that
boom during the months named, there is abundant testimony, and when
the question is only as to the sufficiency of testimony to
establish a given fact, it is enough to say that this Court does
not inquire into the mere matter of sufficiency. Matters of fact
are settled by the verdict of a jury or the general finding of a
court, and if there be testimony fairly tending to support the
finding, it is conclusive in this Court.
But we are not disposed to question the competency of the scale
bills as evidence. Section 2403 provides that the books of the
surveyor general's office
"are hereby declared to be public records, and of as high degree
of evidence as the original instrument therein recorded, and shall,
in all courts and places in this state, be taken and held to be
prima facie evidence of the matters therein stated."
In other words, the records, like the original instrument, are
prima facie evidence of the matters stated in them.
Clark v. C. N. Nelson Lumber Company, 34 Minn. 289;
Glaspie v. Keator, 56 F. 203. In both of those cases,
scale bills somewhat
Page 176 U. S. 143
defective in form were declared under the statute competent
evidence. Attached to the scale bills herein was a certificate of
the surveyor general stating, as required by section 2402, the
amount due him thereon, and that he scaled the logs, timber, or
lumber relying upon the lien, and that he claimed a lien thereon
for the amount thereof and costs of collection. The scale bills,
thus certified, were delivered to the managing agent of the boom
company. Now whatever suggestions may be made as to the
incompleteness of these scale bills, they were, as thus certified,
competent evidence, and when taken in connection with the other
evidence of work actually done by the surveyor general and his
deputies, was testimony fairly tending to support the general
finding of the court, and we are not at liberty to ignore the
effect of that finding.
With regard to the second contention, we do not understand that
a record in the books of the surveyor general is preliminary to a
right to any lien. By section 2402, he is given a lien for certain
services, and while it is true that, by section 2400, he is
required to record the scale bills in the books of his office, and
upon being paid his fees therefor to deliver the original bill to
the owner or managing agent of the boom, yet for any services other
than the mere making of the record, we are of the opinion that
under the two sections referred to, he establishes his lien by the
rendering of the services and affixing to the scale bill the
prescribed certificate.
With respect to the final contention under this head, that the
logs of the plaintiff, seized by the surveyor general, were so
seized under a claim of lien for services rendered in inspecting
and scaling logs other than those of the plaintiff as well as its
own, the fact is as claimed. An important question is thus
presented whether the logs of one party can be subjected to a lien
for surveying and scaling not only his own logs, but also for
surveying and scaling logs belonging to other parties. The
statement naturally suggests a negative answer, and ordinarily it
may be affirmed that no man's property can be subject to a lien for
services rendered upon some other man's property. And yet, under
the circumstances of the case, we
Page 176 U. S. 144
are constrained to hold that the lien was good, and must be
enforced for the entire amount claimed. And this upon the
proposition that, for the purposes of a lien, the boom company must
be considered in a qualified sense the owner of all logs that it
takes into its possession. The legislature, in providing for a
lien, recognizes only the boom company. By section 2 of chapter
221, it gives the company authority to establish a boom, construct
all the works necessary for its successful operation; then empowers
it to take possession of all logs floating down the stream (with
certain exceptions not necessary to be noted in this connection),
and in and by the conveniences of said boom to sort and brail all
logs which it takes possession of; to "charge and collect
reasonable and uniform tolls," and have a lien for the tolls, and
all costs and expenses; hold a sufficient amount of the logs
received to pay the same, and to make sale thereof in default of
payment upon ten days' notice. Involved in the costs and expenses
is the fee for inspection and scaling, as provided by the laws of
the state, and the inspector is required to give at the end of each
month to the owner or managing agent of the boom a true and correct
scale bill for all the services he has rendered. So, while the
owner of the logs may obtain from the surveyor general a certified
copy of the inspection and scaling, yet the inspector deals in the
first instance with the boom company. To it he gives his scale
bill, properly certified, and by virtue thereof he is given a lien
upon the logs in the custody of the boom company. The boom company,
for its protection, is given a lien on the logs of each owner.
Obviously there was seen to be a practical difficulty in limiting
the lien of the surveyor general for his services in inspecting and
scaling to the logs separately upon which the services were
rendered. The logs are turned into the custody of the boom company.
It arranges for their separation and brailing, and delivers them,
when thus brailed, to the owner as demanded. The fees for the
surveyor general's services were therefore made chargeable to the
boom company, and under its charter it had authority to collect
from each log owner all charges and expenses, including therein the
fees due the surveyor
Page 176 U. S. 145
general. The log owner dealt with the boom company, and had a
right to call from that company for a delivery of his logs duly
brailed or rafted whenever he saw fit. To require the surveyor
general to stand watch at the exit of the boom to demand of each
log owner his fees, or in default of payment to seize the logs thus
ready for their future transit down the river, would cast upon the
surveyor general not merely the duty of inspecting and scaling, but
also, for his own protection, the duty of keeping an additional
watch to secure the payment of his fees. It was not unreasonable on
the part of the legislature, when it gave the boom company a lien
upon all logs turned into the boom, to require that it should be
responsible to the surveyor general for his fees, and that he,
looking to the boom company for payment thereof, should have a
right to enforce a lien upon any logs turned into the boom. It
cannot be said that there is, in the nature of things, such an
inseparable connection between services rendered and the thing upon
which the services are rendered that a lien for the former can only
be enforced upon the latter, or even that such lien must be limited
to the owner of the latter, for it is within the discretion of the
legislature to determine whether, considering all the
circumstances, the use of a given instrumentality shall not subject
the party seeking that use to a lien upon his property for all the
services rendered by the state to the instrumentality. Take the
ordinary case of a warehouse for the receipt and discharge of
grain. Can it be that the lien for the services of a state
inspector must necessarily attach separately, and only separately,
to each bushel of grain delivered to and received therefrom? Is it
not within the competency of the legislative power to declare that
the owner of the elevator, like the owner of a boom, stands, as to
all property received into it, as
pro tanto an owner, and
to give to any official charged with the duty of inspection a lien
upon any and all of the property thus received for his services in
the matter of inspection -- especially when it gives to the owner
of the elevator or the boom a lien upon the property placed in his
possession for all services, charges, and expenses?
Page 176 U. S. 146
We are of opinion that it was within the power of the
legislature to so provide. It is not for the courts to inquire
whether any other provision would have been wiser. The only
question for us to consider is whether that which has been made was
within the power of the legislature. It must be borne in mind that,
while the lien is given for the services rendered, the use of the
facilities of the boom is not compulsory. We do not mean to say
that a log cutter may throw his logs loosely and separately into
the river and let them float down, trusting to luck that they will
do no injury. Doubtless anyone may make his own raft and send it
down the stream, provided he places in charge of it a sufficient
number of men to suitably protect it from doing injury or
interfering with others in their use of the stream. A main purpose
of the boom is to stop and collect the floating logs, and the state
having control over the river as a highway of navigation may make
such provision for the use of that highway by the different parties
seeking to use it as will prevent any injury by one upon the other.
Just as the ordinary land highways are free to the use of the
public, yet it is within the competency of the legislature to make
such provisions as will prevent the use by one working injury to
others, and if a party wishes to use a highway in a manner which
may tend to work injury to others, he cannot complain if the
legislature interferes and provides some means for preventing such
injury. In that way, it may be said that any log owner may send his
logs down the river without the use of the boom, and when he
decides to avail himself of the boom, it cannot be said that he is
deprived of his property without due process of law if he is
compelled to subject it to the conditions which the legislature
prescribes for the use of such boom.
A final objection is that, even if this boom was one chartered
by law within the meaning of section 2400, and although the
defendant, Mullen, had performed all that was required of him by
the statute to secure a lien still the law as applied to this boom,
and insofar as the logs in question are concerned, is a regulation
of interstate commerce which the State of Minnesota has no
authority to make. It appears that these
Page 176 U. S. 147
logs, and indeed the bulk of the logs passing into this boom,
came out of the Chippewa River, a stream wholly within the limits
of the State of Wisconsin. The boom company was chartered by the
State of Minnesota, and its principal works were within the limits
of that state. Counsel for plaintiff refer to many decisions of
this Court in which the general power of Congress over interstate
commerce and the inability of the state to burden in any direct way
such commerce have been affirmed. Passing by most, we may notice
these quotations as illustrating the scope of our decisions. Thus,
in
Mobile County v. Kimball, 102 U.
S. 691, it is held that
"commerce with foreign countries and among the states, strictly
considered, consists in intercourse and traffic, including in these
terms navigation and the transportation and transit of persons and
property;"
and in
Gloucester Ferry Co. v. Pennsylvania,
114 U. S. 196,
114 U. S.
203:
"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,"
and from
Wabash &c. Railway Co. v. Illinois,
118 U. S. 557,
118 U. S. 571,
this paragraph is quoted:
"But we think it may safely be said that state legislation which
seeks to impose a direct burden upon interstate commerce, or to
interfere directly with its freedom, does encroach upon the
exclusive power of Congress. The statute now under consideration,
in our opinion, occupies that position; it does not act upon the
business through the local instruments to be employed after coming
within the state, but directly upon the business as it comes into
the state from without, or goes out from within. While it purports
only to control the carrier when engaged within the state, it must
necessarily influence his conduct to some extent in the management
of his business throughout his entire voyage. . . . It was to meet
just such a case that the commercial clause in the Constitution was
adopted. The River Mississippi passes through or along the borders
of ten different states, and its tributaries reach many more. The
commerce upon these waters is immense, and its regulation clearly a
matter of national concern. If each state was at liberty to
Page 176 U. S. 148
regulate the conduct of carriers while within its jurisdiction,
the confusion likely to follow could not but be productive of great
inconvenience and unnecessary hardship."
Upon these authorities, it is contended that the navigation of
these logs from the place of cutting in Wisconsin along the
navigable waters of Minnesota, to their market, wherever it may be
in the lower waters of the Mississippi, must be free. If Minnesota
can burden the transit with the expense of booming, inspection, or
scaling, why may not Iowa, Illinois, Missouri, and any other state
along whose borders the logs may pass before reaching their
destination? Even if a state may (as would seem to be indicated by
the decisions heretofore referred to), for logs cut within its
borders, provide booms, compel their use, and enforce payment for
the expenses thereof, because for those logs no interstate commerce
has commenced, yet here Minnesota is directly regulating the
transit of logs cut in another state and passing through its
borders on their way to market. This is undoubtedly the most
significant, if not perhaps the only, distinctive federal question
presented in this record.
We are not disposed to limit in the slightest degree the scope
and effect of the decisions referred to. But we are of opinion that
these authorities are not pertinent, and that the matter is
governed by another line of decisions equally clear and as
frequently recognized. The state has a right to improve the
waterways within its limits, and to make reasonable charges for the
use of such improvements, at least until Congress interferes, and
either itself assumes control of the improvements or compels their
removal. This parallel line of decisions runs back to the early
history of this Court. In
Willson v. Black-Bird Creek
Marsh Company, 2 Pet. 245, it was held that
inasmuch as Congress had passed no act bearing upon the case, the
State of Delaware might authorize the building of a dam across the
Black-Bird Marsh Creek, although thereby a navigable waterway was
obstructed. In
Pound v. Turck, 95 U. S.
459, the right of a state to make dams, booms, and other
instrumentalities to be used in the navigation of logs and lumber
was adjudged. Other decisions affirmed the power
Page 176 U. S. 149
of the state to build bridges, even toll bridges, over navigable
streams, to construct wharves, and charge wharfage. In
Huse v.
Glover, 119 U. S. 543,
119 U. S. 548,
the right of the State of Illinois to collect tolls for the passage
of vessels through locks in the Illinois River was sustained, the
Court saying:
"The exaction of tolls for passage through the locks is as
compensation for the use of artificial facilities constructed, not
as an impost upon the navigation of the stream. The provision of
the clause that the navigable streams should be highways without
any tax, impost, or duty has reference to their navigation in their
natural state. It did not contemplate that such navigation might
not be improved by artificial means, by the removal of
obstructions, or by the making of dams for deepening the waters, or
by turning into the rivers waters from other streams to increase
their depth. For outlays caused by such works the state may exact
reasonable tolls. They are like charges for the use of wharves and
docks constructed to facilitate the landing of persons and freight,
and the taking them on board, or for the repair of vessels."
In
Sands v. Manistee River Improvement Co.,
123 U. S. 288,
123 U. S. 295,
a corporation had been authorized by the State of Michigan to
improve the Manistee River and to charge tolls for the use of the
improvement. An action to collect tolls was resisted on the ground
that the imposition was a taking of property without due process of
law, which contention was overruled, and in the course of the
opinion, it was said:
"The Manistee River is wholly within the limits of Michigan. The
state therefore can authorize any improvement which in its judgment
will enhance its value as a means of transportation from one part
of the state to another. The internal commerce of a state -- that
is, the commerce which is wholly confined within its limits -- is
as much under its control as foreign or interstate commerce is
under the control of the general government, and to encourage the
growth of this commerce and render it safe, the states may provide
for the removal of obstructions from their rivers and harbors, and
deepen their channels, and improve them in other ways, if, as is
said in
Mobile County v. Kimball, the free navigation
of
Page 176 U. S. 150
those waters, as permitted under the laws of the United States,
is not impaired, or any system for the improvement of their
navigation provided by the general government is not defeated.
102 U. S. 102 U.S. 691,
102 U. S. 699. And to meet
the cost of such improvements, the states may levy a general tax or
lay a toll upon all who use the rivers and harbors as improved. The
improvements are in that respect like wharves and docks constructed
to facilitate commerce in loading and unloading vessels.
Huse
v. Glover, 119 U. S. 543,
119 U. S.
548. Regulations of tolls or charges in such cases are
mere matters of administration, under the entire control of the
state."
Many other cases of similar import might be cited, but these are
enough to disclose the principle which is clearly recognized.
The principal works of the boom company are wholly within the
State of Minnesota. The center of the main channel of the
Mississippi River is northeast of the island. The State of
Minnesota had therefore the undoubted right to improve this portion
of the Mississippi River lying southwest of the island for the
purpose of facilitating the navigation of logs. It could do the
work itself, or could authorize a corporation to do the work, and
it could prescribe any reasonable fees for the use of the
improvement. The power of the state to authorize the construction
of these works did not depend at all upon the question whence all
or most of the logs likely to be run into the boom should come. It
is enough that the state authorized this improvement and prescribed
the conditions upon which it might be used by any owner of logs.
These conditions are not shown to be unreasonable. It is a
legitimate exercise of power on the part of a state to provide
state supervision of what is done in works of such a character, and
to require payment of reasonable charges for such supervision. It
does not appear that the plaintiff was compelled to avail itself of
this boom; that its logs were forcibly seized by the boom company,
and against its will passed through the boom. On the contrary, it
would seem not improbable from the testimony that the persons who
organized and owned the boom company were engaged in the
Page 176 U. S. 151
business of cutting logs on the Chippewa River, and that this
litigation sprang from their desire to get all the benefits of the
boom without submission to the inspection laws of the state, which
gave authority for the works. At any rate, if this plaintiff wanted
to take advantage of the conveniences furnished by the boom, it is
not in a position to avoid compliance with these provisions of the
statutes of the state which authorized the construction of the
works.
It is true that that which is called a "shear boom" extended
across the navigable channel of the Mississippi and to near the
Wisconsin shore; but if neither the State of Wisconsin nor the
United States complained of this as an obstruction of the
navigation of the Mississippi, it does not lie in the mouth of the
plaintiff to complain. Indeed, its complaint is not that the shear
boom interfered with its rights of navigation in any way, but that,
after its logs had been passed into the works constructed under the
authority and within the limits of the State of Minnesota, it was
not permitted to avail itself of the advantages furnished thereby
and repudiate the charges prescribed by the state.
Before passing from a consideration of the right of this boom
company under its charter to place the shear boom across the main
channel of the Mississippi, it may not be inappropriate to notice a
decision of the Supreme Court of Wisconsin upon a like question. In
J. S. Keator Lumber Company v. St. Croix Boom Corporation,
72 Wis. 62, 88, it appeared that the St. Croix Boom Company was a
corporation created by the State of Minnesota, and that it had
constructed its boom on the St. Croix River at a place where the
river was the boundary line between Minnesota and Wisconsin, and
wholly occupied the river with its works. An action was brought to
recover damages on account of the way in which the boom was
constructed and operated. The opinion of the supreme court, by Mr.
Justice Cassoday, is a very elaborate discussion of the rights of
parties. In it, it is said:
"The obstructions here complained of were in that part of the
St. Croix River constituting the boundary line between
Page 176 U. S. 152
this state and Minnesota. The defendant justifies under
corporate authority derived solely from Minnesota. We are here
confronted with the question whether such authority, so granted by
that state alone and without the concurrence of this, is of any
validity. Our constitution declares that"
"the state shall have concurrent jurisdiction on all rivers and
lakes bordering on this state, so far as such rivers or lakes shall
form a common boundary to the state and any other state or
territory now or hereafter to be formed and bounded by the
same."
"(Sec. I, Art. IX, Const.Wis.) This provision is substantially
the same as the third section of the Act of Congress of August 6,
1846, enabling the organization of this state preparatory to its
admission into the Union. Substantially the same provision, as
applied to Minnesota, is found in sec. 2 of art. II of the
Constitution of that state, which is in substance the same as
section 2 of the Enabling Act for the organization of that state
passed by Congress in 1857. Such 'concurrent jurisdiction,'
therefore, is fairly established by the combined action of the
general government and each of these two states. Its significance
is the important inquiry presented. No one will deny that the one
state has as much jurisdiction over the commerce of the river as
the other, nor that the jurisdiction of each and both must be and
remain subordinate to any action of Congress under the commercial
clause of our national Constitution. The question recurs whether
one of these states, without the concurrence of the other, can
legally grant the booming privileges and rights authorized by the
defendant's charter."
Without attempting fully to define the rights which either state
might grant, it was held that a private party could not maintain an
action for damages on the ground that Minnesota had exceeded its
jurisdiction in granting rights upon waters within the limits of
Wisconsin. Referring to
Rundle v. Delaware &
Raritan Canal Co., 14 How. 80, the Court stated the
facts and the rulings in that case, and summed up its own views in
these words (pages
55 U. S.
98-99):
"The plaintiffs owned certain mills in Pennsylvania, opposite
Trenton, New Jersey, supplied with water from a dam in the
Page 176 U. S. 153
Delaware River, by a title running back prior to 1771. In that
year, the two provinces, which subsequently became the States of
Pennsylvania and New Jersey, respectively passed acts declaring the
river a common highway for the purposes of navigation, and
appointed commissioners with full power to improve such navigation
and remove any obstructions. By compact in 1783, it was agreed by
the two states that the river should continue to be and remain a
common highway in its whole length and breadth, equally free and
open for the use, benefit, and advantage of each of the two states.
The defendant company was incorporated under the laws of New Jersey
in 1830, and was thereby authorized to and did construct a canal in
that state, with a feeder from a dam in that river above the
plaintiffs. The action was brought by reason of the diversion of
such water, to the damage of the plaintiffs. The Court held in
effect that the plaintiffs had no grant of the usufruct of the
waters of the river, but only a license to draw from their dam;
that such license was revocable and in subjection to the superior
right of the state to divert the water for public improvements,
either by the state directly or by a corporation created for that
purpose; that the plaintiffs, being but tenants at sufferance in
the usufruct of the water of the two states, who owned the river as
tenants in common, were not in a condition to question the relative
rights of either state to use its waters without the consent of the
other; that as, by the laws of their own state, the plaintiffs
could have had no remedy against a corporation authorized to take
the whole waters of the river for the purpose of canals or
improving the navigation, so they could not sustain a suit against
a corporation created by New Jersey for the same purpose, which had
taken a part of the waters. The principle of that decision seems to
be that a mere private party should not be heard to complain that
one of two states, divided by such river, had invaded the rightful
jurisdiction of the other by diverting more than its share of the
waters. So here, we think, the plaintiffs are not entitled to be
heard as to whether Minnesota has infringed the rightful
jurisdiction of Wisconsin. This state is not a party to this suit,
and her comparative rights in
Page 176 U. S. 154
and upon the waters of the river at the points in question
cannot be adjudicated in this action."
Without pursuing this subject further, we are of opinion that
the improvement made in the Mississippi River by the construction
of the boom and its works, and the exaction of reasonable charges
for the use of such works, including fees of state officials for
inspecting and scaling, if done under state authority, cannot be
considered in any just sense a burden upon interstate commerce. It
is nothing more than action upon the part of a state in furnishing
additional facilities for the navigation of the waterway, and for
such additional facilities, reasonable charges may be exacted. The
"shear boom," even though it extends across the main channel of the
Mississippi River and into the territory of Wisconsin, was not
complained of by that state, and the plaintiff cannot be heard to
raise any question in that respect. Indeed, its only purpose was to
enable the boom company the more easily to collect the logs of
plaintiff and others floating down the stream. The work of
separation and brailing was done wholly within the limits of the
State of Minnesota in works constructed therein. For these reasons,
we are of opinion that the judgment of the court below was right,
and it is
Affirmed.
MR. JUSTICE PECKHAM, dissenting:
I dissent from that portion of the opinion of the Court which
determines the validity of a lien upon the logs of one owner in
order to secure payment of the fees for the inspection and scaling
of logs owned by another.
The situation in which the log owner is placed practically
compels him to make use of the boom for the purpose of having his
logs inspected and scaled as required by the law, and under such
circumstances he cannot be properly or fairly held, by the use of
the boom, to consent that his property should be taken for the debt
of another person. The mere inconvenience, however great or small,
to the inspector of having
Page 176 U. S. 155
someone watch at the exit of the boom to demand of each log
owner the fees for inspecting and scaling his particular logs
furnishes no answer to the objection of the log owner to the taking
of his property for the debt of another. This act accomplishes that
result in its plainest and baldest form. It reduces to actual
practice and in the form of a legislative enactment, sanctioned by
judicial approval the illustration that is generally made for the
purpose of showing that there are some things so contrary to
justice as to admit of no doubt of their utter illegality, such as
the arbitrary taking, under the form of a legislative enactment, of
the property of one man and bestowing it upon another.
If an owner is practically compelled, in order to conform to a
statute, to use a warehouse for the receipt of his grain, I think
it plain that it would be utterly illegal to permit a lien on the
grain of such owner to attach, for the purpose of obtaining payment
for the services of a state inspector in inspecting the grain of
another. Whilst, as now decided by the Court, a state regulation
which substantially compels the sending of logs into the boom to be
there inspected and scaled may not be a regulation of interstate
commerce, I think a state regulation which confiscates the logs of
one person to pay the debt of another clearly constitutes such a
direct burden upon that commerce as to cause the statute making the
regulation at least to that extent, to be repugnant to the
Constitution of the United States.
Without enlarging upon what seems to me a very great inroad made
upon the rights of individual property by the opinion of the court
herein, I am content merely to record my dissent from the doctrine
therein announced.
I am authorized to say that MR. JUSTICE HARLAN, MR. JUSTICE
BROWN, and MR. JUSTICE WHITE concur in this dissent.
