*149

*

dered, adjudged, and decreed that the defendants * * should pay to the plaintiff a certain sum of money, and interest as therein specified, and alse the costs and disbursements in the suit to be taxed, including ten per cent. on the full amount due from the defendants * * * to the complainant, as an attorney's fee to the attorney of the complainant,' and that, in default of such payment being made, certain lands in said decree and order of sale set out and described be sold."

The petition further states "that your petitioner, as the attorney of the plaintiff, by express agreement, and by the express terms and conditions of said decree and order of sale, was the absolute and unconditional owner of the attorney's fee recovered therein and thereby as costs of the suit." It is then stated that a sale of the mortgaged property was made under the decree, and "the amount due your petitioner under said decree and order of sale, as and for his attorney's fee, * * * having been regularly ascertained and determined, the said purchaser at said sale paid to the clerk of the circuit court, * * * as and for and in payment of the claim of your petitioner for his attorney's fee, * * * the full amount so as aforesaid ascertained and determined to be due to your petitioner therefor." The petition then states that, upon the collection of the money, it was deposited in the registry of the court, and that, although demanded, the district judge holding the circuit court had refused to sign an order for its payment in full to him, but that the sum of $500, part thereof, was retained, although it was then in the depository of the court and "absolutely and unconditionally the property of your petitioner."

No copies of the various orders and decrees on which the rights of the petitioner depend, were attached to the petition; but, upon the positive, sworn statements of the petitioner as to their nature and effect, a rule was entered on the district judge to show cause why the writ asked for should not be issued. To this rule a return has been made, from which it appears unmistakably that it has never been adjudged that the petitioner was the owner of he money in court. On the contrary, it does appear that on the fourth of December, 1884, the petitioner asked that the money in court, being $1,039.42, be "paid to him by the clerk," and thereupon it was ordered "that there be paid to said Hughes (the petitioner) out of said funds, the sum of $519.04," but the court declined to make any disposition of the rest of the fund until the plaintiff had notice of the application and could be heard thereon. The amount so ordered to be paid was afterwards received from the registry of the court by the petitioner. The application for the rest of the fund was subsequently heard, the plaintiff in the suit appearing to resist, and upon full consideration it was expressly adjudged by the court that the litigation in the case was not ended, and that "neither by the terms of the decree nor the right and justice of the case was he [petitioner] entitled to the same [the money] until he had earned it by prosecuting said suit to a final decree as to all the defendants therein." The application for the remainder of the money was consequently denied, and the fund was left "in the registry of the court to be disposed of or applied hereafter, as the rights of the parties and justice of the case may require." Certainly, upon this return, the petitioner is not entitled to the writ he asks.

The rule heretofore granted is discharged, with costs.

(114 U. S. 174)

Ex parte MORGAN and another, Petitioners.

(April 6, 1885.)

MANDAMUS TO COMPEL INFERIOR COURT TO DECIDE A CASE.

A writ of mandamus may be used to require an inferior court to decide a matter within its jurisdiction, and pending before it for judicial determination, but not tc control the decision.

Petition for Mandamus.

Edward Roby, for petitioner. W. H. Calkins, A. C. Harris, and A. L. Osborne, for respondent.

66

WAITE, C. J This is an application for a writ of mandamus requiring the circuit court of the United States for the district of Indiana to amend a judgment entered January 20, 1883, in a cause wherein the relators were plaintiffs, and Frederick Eggers, defendant, "so as to conform to the complaint in said cause, and to the finding or verdict of the court rendered upon the trial of said cause." The suit was ejectment to recover the possession of "all of the north part of lot 2, in sec. 36, T. 38 N., R. 10 W. of the second principal meridian, which lies west of the track of the Lake Shore & Michigan Southern Railroad, and north of a line parallel with the north line of said lot 2, and seven hundred and fifty-three feet south therefrom." The judgment entry, which includes the only finding in the case, is as follows: And the court, having heard the evidence and being fully advised, finds for the plaintiffs, and orders and adjudges that they are entitled to, and shall have and recover of defendant, the possession of so much of said lot two (2) as lies south of the south line of lot number one, (1,) as indicated by a fence constructed and maintained by the defendant as and on said south line, said fence running from the state line easterly to Lake Michigan; and assessing the dam ages at $1 and costs taxed at $-, which the plaintiffs shall recover of defend ant. All of which is finally ordered, adjudged, and decreed." After this entry the petitioner moved the court to amend and reform the judgment so that it would "conform to the complaint in said court and to the finding or verdict;" but the court, on full consideration, decided that the finding and judgment were not separate and distinct, and that the meaning was clear. The entry was to be construed as finding and adjudging that the plaintiffs were only entitled to recover the possession of so much of the premises sued for as lies south of the fence indicated. For this reason the motion was denied.

It is an elementary rule that a writ of mandamus may be used to require an inferior court to decide a matter within its jurisdiction and pending before it for judicial determination, but not to control the decision. Ex parte Flippin, 94 U. S. 350; Ex parte Railway Co. 101 U. S. 720; Ex parte Burtis, 103 U. S. 238. Here a judgment has been rendered and entered of record by the circuit court in a suit within its jurisdiction. The judgment is the act of the court. It is recorded ordinarily by the clerk as the ministerial officer of the court, but his recording is in legal effect the act of the court, and subject to its judicial control. The clerk records the judgments of the court, but does not thereby render the judgments. If there is error in the judgment as rendered, it cannot be corrected by mandamus, but resort must be had to a writ of error or an appeal. Ex parte Loring, 94 U. S. 418; Ex parte Perry, 102 U. S 183.

If a clerk in performing the ministerial act of recording a judgment has committed an error, the court may on motion at the proper time correct it,. or it may do so in a proper case upon its own suggestion without waiting for the parties. Here the plaintiffs, believing that the judgment as recorded did not conform to the finding, moved the court to amend it in that particular. This motion the court entertained, but, being of the opinion that the judg

ment had been correctly recorded, refused the amendment which was asked. In this the court acted judicially, and its judgment on the motion can no more be reviewed by mandamus than that which was originally entered in the

cause.

The writ is denied, with costs.

(114 U. S. 196)

GLOUCESTER FERRY Co. v. COMMONWEALTH OF PENNSYLVANIA.

(April 13, 1885.)

1. TAXING POWER OF A STATE-WHAT SUBJECTED THERETO.

The criterion of the taxing power of a state is the jurisdiction which such state has over the property over which such power is sought to be exercised.

2. SAME-FERRY-BOAT-PORT OF REGISTRY.

A ferry-boat, like any other kind of water-craft, is taxable only at the port where it is registered.

3. SAME-INTERSTATE COMMERCE.

Any control or regulation by a state of the navigation of its waters is an encroachment upon the powers of congress.

4. SAME-FERRY-DIVIDING WATERS BETWEEN TWO STATES.

A ferry is a necessary means of intercourse between the states bordering on their dividing waters, and it must therefore be conducted without the imposition by the states of taxes or other burdens upon the commerce between them.

5. SAME-TRANSPORTATION-INTERSTATE COMMERCE.

No legislation on the part of a state can impose a tax upon that portion of interstate commerce which is involved in the transportation of persons and freight, whatever be the instrumentality by which it is carried on.

6. SAME-GLOUCESTER FERRY COMPANY-ACT OF PENNSYLVANIA LEGISLATURE OF JUNE 7, 1879.

The tax imposed in July, 1880, by the state of Pennsylvania upon the Gloucester Ferry Company, under authority of the statute of that state, passed June 7, 1879, was illegal and void.

In Error to the Supreme Court of the State of Pennsylvania.

*In March, 1865, the Gloucester Ferry Company, the plaintiff in error here, was incorporated by the legislature of New Jersey to establish a steam-boat ferry from the town of Gloucester, in that state, to the city of Philadelphia, in Pennsylvania, with a capital stock of $50,000, divided into shares of $50 each. During that year it established, and has ever since maintained, a ferry between those places, across the river Delaware, leasing or owning steam ferry-boats for that purpose. At each place it has a slip or dock on which passengers and freight are received and landed; the one in Gloucester it owns, the one in Philadelphia it leases. Its entire business consists in ferrying passengers and freight across the river between those places. It has never transacted any other business. It does not own, and has never owned, any property, real or personal, in the city of Philadelphia other than the lease of the slip or dock mentioned. All its other property consists of certain real estate in the county of Camden, New Jersey, needed for its business, and steam-boats engaged in ferriage. These boats are registered at the port of Camden, New Jersey. It has never owned any boats registered at a port of Pennsylvania, and its boats are never allowed to remain in that state, except so long as may be necessary to discharge and receive passengers and freight. In July, 1880, the auditor general and the treasurer of the state of Pennsylvania stated an account against the company of taxes on its capital stock, based upon its appraised value, for the years 1865 to 1879, both inclusive, finding the amount of $2.593.96 to be due the commonwealth. From this finding an appeal was taken to the court of common pleas of Philadelphia, and was there heard upon a case stated, in which it was stipulated that if

the court were of opinion that the company was liable for the tax, judgment against it in favor of the commonwealth should be entered for the above amount; but if the court were of opinion that the company was not liable, judgment should be entered in its favor.

A statute of Pennsylvania, passed June 7, 1879, "to provide revenue by taxation," in its fourth section enacted as follows: "That every company or association whatever, now or hereafter incorporated by or under any law of this commonwealth, or now or hereafter incorporated by any other state or territory of the United States or foreign government, and doing business in this commonwealth, or having capital employed in this commonwealth in the name of any other company or corporation, association or associations, person or persons, or in any other manner, except foreign insurance companies, banks and savings institutions, shall be subject to and pay into the treasury of the common wealth annually a tax to be computed as follows, namely: If the dividend or dividends made or declared by such company or association as aforesaid, during any year ending with the first Monday of November, amount to six or more than six per centum upon the par value of its capital stock, then the tax to be at the rate of one-half mill upon the capital stock for each one per centum of dividend so made or declared; if no dividend be made or declared, or if the dividend or dividends made or declared do not amount to six per centum upon the par value of said capital stock, then the tax to be at the rate of three mills upon each dollar of a valuation of the said capital stock," made in accordance with the provisions of another section of the act. It was under the authority of this act that the taxes in question were stated against the company by the auditor general and the state treasurer.

The court of common pleas held that the taxes could not be lawfully levied, for there was no other business carried on by the company in Pennsylvania except the landing and receiving of passengers and freight, which is a part of the commerce of the country, and protected by the constitution from the imposition of burdens by state legislation. It therefore gave judgment in favor of the company. The case being carried on a writ of error to the supreme court of the state, the judgment was reversed, and judgment ordered in favor of the common weath for the amount mentioned. To review this latter judgment, the case is brought here.

John G. Johnson, M. E. Olmsted, Sanil Dickson, and M. P. Henry, for, plaintiff in error. Robert Snodgrass, for defendant in error.

*FIELD, J. The supreme court of the state, in giving its decision, stated that the single question presented for consideration was whether the company did business within the state of Pennsylvania during the period for which the taxes were imposed; and it held that it did do business there, because it landed and received passengers and freight at its wharf in Philadelphia, observing that its whole income was derived from the transportationg of freight and passengers from its wharf at Gloucester to its wharf at Philadelphia, and from its wharf at Philadelphia to its wharf at Gloucester; that at each of these points its main business, namely, the receipt and landing of freight and passengers, was transacted; that for such business it was dependent as much upon the one place as upon the other; that, as it could hold the wharf at Gloucester, which it owned in fee, only by purchase by virtue of the statutory will of the legislature of New Jersey, so it could hold by lease the one in Philadelphia only by the implied consent of the legislature of the commonwealth; and that, therefore, it "was dependent equally, not only for its business, but its power to do that business, upon both states, and might therefore be taxed by both." 98 Pa. St. 105, 116.

As to the first reason thus expressed, it may be answered that the business of landing and receiving passengers and freight at the wharf in Philadelphia is a necessary incident to, indeed is a part of, their transportation across the Delaware river from New Jersey. Without it that transportation would be

impossible. Transportation implies the taking up of persons or property at some point and putting them down at another. A tax, therefore, upon such receiving and landing of passengers and freight is a tax upon their transportation; that is, upon the commerce between the two states involved in such transportation.

It matters not that the transportation is made in ferry-boats which pass between the states every hour of the day. The means of transportation of persons and freight between the states does not change the character of the business as one of commerce, nor does the time within which the distance between the states may be traversed. 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, as well as the purchase, sale, and exchange of commodities. The power to regulate that commerce, as well as commerce with foreign nations, vested in congress, is the power to prescribe the rules by which it shall be governed, that is, the conditions upon which it shall be conducted; to determine when it shall be free, and when subject to duties or other exactions. The power also embraces within its control all the instrumentalities by which that commerce may be carried on, and the means by which it may be aided and encouraged. The subjects, therefore, upon which the power may be exerted are of infinite variety. While with reference to some of them, which are local and limited in their nature or sphere of operation, the states may prescribe regulations until congress intervenes and assumes control of them, yet, when they are national in their character, and require uniformity of regulation affecting alike all the states, the power of congress is exclusive. Necessarily that power alone can prescribe regulations which are to govern the whole country. And it needs no argument to show that the commerce with foreign nations and between the states, which consists in the transportation of persons and property between them, is a subject of national character, and requires uniformity of regulation. Congress alone, therefore, can deal with such transportation; its non-action is a declaration that it shall remain free from burdens imposed by state legislation. Otherwise, there would be no protection against conflicting regulations of different states, each legislating in favor of its own citizens and products, and against those of other states. It was from apprehension of such conflicting and discriminating state legislation, and to secure uniformity of regulation, that the power to regulate commerce with foreign nations and among the states was vested in congress. Nor does it make any difference whether such commerce is carried on by individuals or by corporations. Welton v. State of Missouri, 91 U. S. 275; County of Mobile v. Kimball, 102 U. S. 691. As was said in Paul v. Virginia, at the time of the formation of the constitution, a large part of the commerce of the world was carried on by corporations; and the East India Company, the Hudson Bay Company, the Hamburgh Company, the Levant Company, and the Virginia Company were mentioned as among the corporations which, from the extent of their operations, had become celebrated throughout the commercial world. 8 Wall. 168. The grant of power is general in its terms, making no reference to the agencies by which commerce may be carried on. It includes commerce by whomsoever conducted, whether by individuals or by corporations. At the present day nearly all enterprises of a commercial character, requiring for their successful management large expenditures of money, are conducted by corporations. The usual means of transportation on the public waters, where expedition is desired, are vessels propelled by steam; and the ownership of a line of such vessels generally requires an expenditure exceeding the resources of single individuals. Except in rare instances, it is only by associated capital furnished by persons united in corporations that the requisite means are provided for such expenditures.

As the second reason given tor the decision below, that the company could