Logs, under control of their owner, which are being floated in a
river in continuous movement from one state to another, or which,
in the course of their interstate journey, are being temporarily
detained by a boom to await subsidence of high waters and for the
sole purpose of saving them from loss, are in interstate commerce,
and not subject to state taxation. P.
260 U. S. 371.
Coe v. Errol, 116 U. S. 517, and
other cases, distinguished.
113 A. 806 reversed.
This was a suit in assumpsit by the petitioner, the Champlain
Realty Company, to recover $484.50 and interest from the Town of
Brattleboro, Vermont, being the amount of taxes levied on logs of
pulpwood of the petitioner floating in the West River in that town
on April 1, 1919, and paid by the petitioner under protest as
illegally collected because the logs were then in transit in
interstate commerce to Hinsdale, New Hampshire. The suit
Page 260 U. S. 367
was brought in the county court, and, the defendant having
failed to set the cause for jury trial within the time fixed by
statute, it was heard by the court, which made findings of fact
that, under the state practice, are conclusive on review by the
supreme court. The county court gave judgment for the Realty
Company. The town took the case on exceptions to the supreme
court.
The supreme court summarized the findings of fact by the county
court as follows:
"During the winter of 1918-19 the plaintiff cut pulpwood, in all
about 10,000 cords, in the Towns of Jamaica, Stratton, Londonderry,
and Winhall in this state. The plaintiff maintains a mill at
Hinsdale, in the State of New Hampshire, about three miles below
Brattleboro, where its pulpwood is rossed and bolted. The wood, cut
four feet long, was placed upon the banks of West River and its
tributaries to be floated down into the Connecticut and thence to
its destination at the mill in Hinsdale. The waters of the West
River are wholly in this state, and empty in the Town of
Brattleboro into the Connecticut. West River and its tributaries
had been used for driving pulpwood to the mill at Hinsdale in the
years 1917 and 1918. A single log boom is provided at the mill to
receive the wood floated down the river, but is incapable of
holding it all when the water in the Connecticut is high and the
current swift, and the wood is liable to be carried over and drawn
under the boom and lost. A pond of considerable size is formed near
the mouth of West River in the Town of Brattleboro by water set
back from the Connecticut by the dam at Vernon. Plaintiff maintains
a boom at this point to hold and control the logs driven down West
River until the water in the Connecticut has receded sufficiently
to permit of their being held in the boom at Hinsdale."
"On March 25, 1919, the plaintiff began putting the pulpwood
into the West River and its tributaries, the
Page 260 U. S. 368
water in these streams then being high, intending to drive it
down the river and thence into the Connecticut and down that river
to its mill in Hinsdale. In anticipation of the probable high water
in the Connecticut, plaintiff had previously placed its boom across
West River near its mouth to hold the wood there until the water in
the Connecticut had receded enough to allow it to be held at the
mill at Hinsdale. The wood floated down West River on the high
water, and the head of the drive reached the boom at the mouth of
West River on March 27, 1919. At that time, the Connecticut was so
high, and its current so swift, that it was not thought safe to let
the wood into that river, as it could not be held at the Hinsdale
boom. For this reason, and no other, the plaintiff held its wood in
the boom at Brattleboro. The Connecticut was not suitable for
driving pulpwood from the time the drive began until April 3d, on
which date the plaintiff's servants cut the boom at the mouth of
West River so that the wood could pass into the Connecticut. Prior
to April 3d, only about 4,000 cords of the wood had reached and
been held at the West River boom. The balance arriving later went
through to Hinsdale without stopping. On March 28, 1919, when there
was, by estimation, about 4,000 cords of wood in the West River
boom, it broke, allowing some of the wood to escape into the
Connecticut, and onto the Retreat meadow in Brattleboro, near the
mouth of West River. The boom was repaired on March 29, 1919. At
this time, the part of West River where the wood lay back of the
boom, called the holding ground, was frozen, so the wood, if not
boomed, could not have continued on its journey into the
Connecticut at that time. On April 1, 1919, about 1,500 cords of
the pulpwood was being held in plaintiff's boom at the mouth of
West River. Some wood that was lodged on an island and the wood on
the Retreat meadow remained after the boom was cut. The latter
remained on the meadow about two weeks, and had
Page 260 U. S. 369
to be taken out by a process called 'booming,' or 'warping.'
None of this 1,500 cords was cut in the Town of Brattleboro. All of
it had been carried down West River and was destined for the
plaintiff's mill at Hinsdale, New Hampshire, by way of the
Connecticut. The drive of pulpwood down West River to the
Connecticut and thence to the rossing plant at Hinsdale was in
continuous operation from March 25th until it was completed on May
9th, and was conducted properly to make an uninterrupted passage,
so far as possible."
On these findings, the supreme court held that the interstate
transit did not begin until the wood left the Brattleboro boom.
Everything before that was merely preparations. The floating of the
logs from the West River towns to Hinsdale was interrupted, and the
interruption, although only long enough to secure safety in the
drive, was for the benefit of the owner, and in law postponed the
initial step in the interstate transit until the wood was released
from the Brattleboro boom. The court therefore held the wood
taxable at Brattleboro, and reversed the county court.
Page 260 U. S. 371
Mr. Chief JUSTICE TAFT, after stating the case, delivered the
opinion of the Court.
The Vermont Supreme Court depended for its conclusions chiefly
upon
Coe v. Errol, 116 U. S. 517,
which is the leading case on this subject. There, logs had been cut
on Wentworth's Location in New Hampshire during the winter, and had
been drawn down to Errol in the same state, and placed in Clear
Stream and on the banks thereof on lands of John Akers and part on
land of George C. Demerritt in said town, to be from thence floated
down the Androscoggin River to the State of Maine. 116 U.S.
116 U. S.
518.
It is not clear how long they had lain there, but certainly for
part of one winter season. This Court, speaking by Mr. Justice
Bradley, sought to fix the time when
Page 260 U. S. 372
such logs, in the course of their being taken from New Hampshire
to Maine, ceased to be part of the mass of property of New
Hampshire and passed into the immunity from state taxation as
things actually in interstate commerce. The learned Justice states
the rule to be:
"that such goods do not cease to be part of the general mass of
property in the state, subject, as such, to its jurisdiction, and
to taxation in the usual way, until they have been shipped, or
entered with a common carrier for transportation to another state,
or have been started upon such transportation in a continuous route
or journey."
P.
116 U. S.
527.
Again, on page
116 U. S. 528,
Justice Bradley said:
"The carrying of them in carts or other vehicles, or even
floating them, to the depot where the journey is to commence is no
part of that journey. That is all preliminary work, performed for
the purpose of putting the property in a state of preparation and
readiness for transportation. Until actually launched on its way to
another state, or committed to a common carrier for transportation
to such state, its destination is not fixed and certain. It may be
sold or otherwise disposed of within the state, and never put in
the course of transportation out of the state. Carrying it from the
farm or the forest to the depot is only an interior movement of the
property, entirely within the state, for the purpose, it is true,
but only for the purpose of putting it into a course of
exportation; it is no part of the exportation itself. Until shipped
or started on its final journey out of the state, its exportation
is a matter altogether
in fieri, and not at all a fixed
and certain thing."
"The application of these principles to the present case is
obvious. The logs which were taxed, and the tax on which was not
abated by the Supreme Court of New Hampshire, had not, when so
taxed, been shipped or started on their final voyage or journey to
the State of
Page 260 U. S. 373
Maine. They had only been drawn down from Wentworth's Location
to Errol, the place from which they were to be transported to
Lewiston in the State of Maine. There they were to remain until it
should be convenient to send them to their destination."
The question here, then, is: where did the interstate shipment
begin? When the wood was placed in the waters of the West River in
the Towns of Jamaica, Stratton, Londonderry and Winhall, or at the
boom in Brattleboro? The whole drive was 10,000 cords. Six thousand
cords of that, shipped from these towns after the 3d of April, went
through directly to Hinsdale, New Hampshire, without stopping.
Certainly that was a continuous passage, and the wood, when
floating in the West River, was as much in interstate commerce as
when on the Connecticut. Why was it any more in interstate commerce
than that which had been shipped before April 3d from the same
towns for the same destination by the same natural carrying agency,
to-wit, the flowing water of the West and Connecticut Rivers? Did
the fact that, before April 3d, the waters of the Connecticut were
frozen or so high as to prevent the logs reaching Hinsdale,
requiring a temporary halting at the mouth of the West River, break
the real continuity of the interstate journey? We think not. The
preparation for the interstate journey had all been completed at
the towns on the West River where the wood had been put in the
stream. The boom at the mouth of the West River did not constitute
an
entrepot or depot for the gathering of logs preparatory
for the final journey. It was only a safety appliance in the course
of the journey. It was a harbor of refuge from danger to a shipment
on its way. It was not used by the owner for any beneficial purpose
of his own except to facilitate the safe delivery of the wood at
Hinsdale on their final journey already begun. The logs were not
detained to be classified, measured, counted,
Page 260 U. S. 374
or in any way dealt with by the owner for his benefit except to
save them from destruction in the course of their journey that, but
for natural causes, over which he could exercise no control, would
have been actually continuous. This was not the case in
Coe v.
Errol. It is evident from the statement of that case and Mr.
Justice Bradley's language that the logs were partly drawn and
partly floated to Errol, and deposited some in the stream and some
on the banks, where "they were to remain until it should be
convenient to send them to their destination," and they were being
gathered there for the whole previous winter season. It was an
entrepot or depot, as the Justice several times describes
it. The mere fact that the owner intended to send them out of the
state under such circumstances did not put them into transit in
interstate commerce. But here, we have the intention put into
accomplishment by launching, and manifested by an actually
continuous journey of more than half the drive, with a halting of
less than half of it in the course of the interstate journey to
save it from loss, and only for that purpose.
The case at bar is easily distinguishable from the other cases
cited by the Vermont Supreme Court. In
Bacon v. Illinois,
227 U. S. 504,
Bacon had bought shipments of grain
in transitu from
western states to New York in the contract for which the carriers
had given the shipper the right to remove it
"for the mere temporary purposes of inspecting, weighing,
cleaning, clipping, drying, sacking, grading or mixing, or changing
the ownership, consignee or destination."
On arrival of the grain in Chicago, Bacon removed the grain from
the cars to his private elevator. This removal was for the purpose
of inspecting, weighing, grading, mixing, etc., but not to change
its ownership, consignee, or destination. It was held that,
whatever his intention, the grain was at rest, within his complete
power of disposition, and held for his
Page 260 U. S. 375
own benefit, and was taxable. His storing of the grain was not
to facilitate interstate shipment of the grain or save it from the
danger of the journey. It was to enable him to treat the grain, so
as to enable him more conveniently to dispose of it. He made his
warehouse a depot for its preparation for further shipment and
sale. He had thus suspended the interstate commerce journey, and
brought the grain within the taxable jurisdiction of the state.
So, in
General Oil Co. v. Crain, 209 U.
S. 211, the Oil Company had its principal place of
business in Memphis, Tennessee, for the manufacture and sale of
illuminating oils in interstate commerce. It imported oil from
other states and put it into a tank, appropriately marked for
distribution in smaller vessels to fill orders for oil already sold
in Arkansas, Louisiana, and Mississippi. The Court held that the
first shipment had ended, that its storage at Memphis for division
and distribution to various points was for the business purposes
and profit of the company. The Court continued:
"It was only there for distribution, it is said, to fulfill
orders already received. But to do this required that the property
be given a locality in the state beyond a mere halting in its
transportation."
P.
209 U. S. 231.
The tank at Memphis thus became a depot in its oil business for
preparing the oil for another interstate journey. So far as it
bears upon this case,
American Steel and Wire Co. v.
Speed, 192 U. S. 500,
presented a similar state of facts and ruling.
In
Diamond Match Co. v. Ontonagon, 188 U. S.
82, the company cut 180,000,000 feet of timber for the
purpose of saving the same from fire, and, to protect and preserve
it, put it into the Ontonagon River, Michigan. It was drawn down to
the mouth of the river into the Township of Ontonagon, Michigan, to
the sorting ground and pier jams of the company, and there it was
taxed. The logs remained there, and were
Page 260 U. S. 376
shipped as they were needed to Green Bay, Wisconsin, to the
mills of the company. Not more than 40,000,000 feet a season were
needed. Palpably the company's sorting grounds and pier jams were a
depot for the keeping of the logs for the business purposes of the
company, and there was no interstate commerce until the final
shipment to Green Bay began.
In the cases of
Brown v. Houston, 114 U.
S. 622, and
Pittsburg Coal Co. v. Bates,
156 U. S. 577, the
coal in barges in the Mississippi River which was the subject of
taxation had come to rest in Louisiana, after a trip from
Pittsburg, and was being held for sale to anyone who might wish to
buy.
The interstate commerce clause of the Constitution does not give
immunity to movable property from local taxation which is not
discriminative unless it is in actual continuous transit in
interstate commerce. When it is shipped by a common carrier from
one state to another, in the course of such an uninterrupted
journey it is clearly immune. The doubt arises when there are
interruptions in the journey, and when the property in its
transportation is under the complete control of the owner during
the passage. If the interruptions are only to promote the safe or
convenient transit, then the continuity of the interstate trip is
not broken.
State v. Engle, 34 N.J.Law 425, 435;
State
v. Carrigan, 39 N.J.Law 36. This was the case in
Kelley v.
Rhoads, 188 U. S. 1, in
which sheep driven 500 miles from Utah to Nebraska which traveled
nine miles a day were held immune from taxation in Wyoming where
they stopped and grazed on their way. Another instance is as to
that part of the logs in
Coe v. Errol which were not
before this Court because the Supreme Court of New Hampshire had
found them nontaxable in New Hampshire. They were cut in Maine, and
were floated down the Androscoggin on their way to Lewiston, Maine,
but were delayed for a season at Errol,
Page 260 U. S. 377
New Hampshire, because of low water. In the cases just cited,
the transit had begun in one state and was continued through
another, on the way to a third. This circumstance strengthened the
inference that the interruption in the intermediate state did not
destroy interstate continuity of the trip. But this was not always
so, as
Bacon v. Illinois and
General Oil Co. v.
Crain show. In other words, in such cases, interstate
continuity of transit is to be determined by a consideration of the
various factors of the situation. Chief among these are the
intention of the owner, the control he retains to change
destination, the agency by which the transit is effected, the
actual continuity of the transportation, and the occasion or
purpose of the interruption during which the tax is sought to be
levied.
Of all the cases in this Court where such movable property has
been held taxable, none is nearer in its facts than
Coe v.
Errol to the case at bar. We have pointed out the distinction
between the two, which requires a different conclusion here.
Reversed and remanded for further proceedings not
inconsistent with this opinion.
