Carson River Lumbering Co. v. Patterson

By the Court, Shafter, J.: The principal question in this case is as to the constitutionality of an Act of the Legislature, approved March 22d, 1866, and entitled “ An Act granting to the Board of Supervisors of Alpine County the right to charge and collect toll for the floating and transportation of wood, saw logs and lumber down the main Carson River, in said county.” (Acts 1865-6, p. 350.) The Act “ places ” the main Carson Biver in the County of Alpine, “ under the supervision and control of the Board of Supervisors of the county, for the purposes of the Act.” The Board is authorized “ to grant or license the use of said river for the floating, driving or transporting firewood, saw logs, and lumber down said stream at a rate of toll not to exceed the sum of one dollar for each cord of firewood, one dollar for each thousand feet of lumber, and one dollar for each thousand feet of saw logs. Provision is made for the enforcement of this law through a “ Toll Collector,” who is authorized, in case of neglect or refusal on the part of any one using the stream to pay the prescribed toll, to seize the wood, etc., or any other personal property of the defaulter, and to summarily sell the same to satisfy the toll, together with costs and expenses. The Act makes it a misdemeanor, punishable by fine, or imprisonment, for any one to use the river for the purposes stated without a license from the Board of Supervisors. The money arising from the tolls is to be [339] paid into the treasury of the county—seventy-five per cent to the credit of the General Fund, and the residue to the credit of the Common School Fund. This action is brought upon a promissory note for one thousand nine hundred dollars, given by the company to the plaintiff—toll gatherer for the time being—for tolls claimed by him to be due under the Act, The answer of the defendants alleges, amongst other things, that the tolls covered by the note accrued on saw logs and cordwood cut by the company upon public lands of the United States, situated on both sides of the East Fork of the Carson River, in the County of Alpine, for the purpose of floating the same on said river to the markets of Empire City, Gold Hill and Virginia City, in the State of Nevada; that the company had used said Fork for floating wood and timber to those markets since the year 1861, and had expended large sums of money in improving the river; that the wood on which the tolls in question were claimed had been seized by the plaintiff under the Act of 1866, and that the note was given to procure a release from the seizure. The unconstitutionality of. the Act of 1866 is put in argument, upon a number of grounds, but the only one we shall have occasion to discuss is that, so far as the Act may be regarded as applicable to the lumber traffic between California and Nevada, on the line of the Carson River, it is an attempt to regulate commerce between those States. By the eighth section of the first Article of the Constitution of the United States, Congress is empowered “ to regulate commerce with foreign nations, and among the several States, and with the Indian tribes.” It has been considered that the power “ to regulate commerce ” is the power to prescribe the rule by which it shall be governed; and that “ commerce,” in the sense in which the word is used in the Constitution, is coextensive in its meaning with “intercourse.” In so far as intercourse between two States consists in traffic, a rule prescribing the subjects of that traffic, or dictating the mode in which, or the conditions on which such [340] traffic must be prosecuted, is a commercial regulation beyond dispute. (Gibbons v. Ogden, 9 Wheat. 194.) It was further held in that case that the power to regulate commerce, whether foreign or domestic, is exclusive of the same power in the States, and not concurrent with it; and the same point was ruled in Brown v. Maryland, 12 Wheaton, 419. The question was met in this State at an early day, and it was held that the power to regulate commerce among the States was vested exclusively in Congress. (People v. Downer, 1 Cal. 169.) It is not claimed, nor can there be any pretence for claiming, that the Act whose constitutionality is brought in question in this action is a police regulation. It has no bearing upon public health, public morals or public safety. It was passed for the sole purpose of raising revenue off of a portion of the traffic between California and" a sister State, a commerce in which both States were and are alike interested, and the control of which is vested in the General Government alone, the common superior of both. But the attempt to regulate inter-State commerce in this case is by an impost on wood and lumber, considered as an export from California; and the power to regulate commerce between the States in that particular way is prohibited to the States by an express provision of the Constitution. The toll imposed by the terms of the Act for the use of the river, though different' in form from a duty or tax on the wood or lumber transported, is in substance the same thing. (Almy v. The State of California, 24 How. 174; Brumagim v. Tillinghast, 18 Cal. 266.) It is urged on the part of the plaintiff that the statute of 1866 was intended to act only upon that portion of the river lying in California, and never was intended to impose a toll upon lumber and wood seeking a market in Nevada. If that is the true construction of the Act, then on the allegations of the answer the plaintiff in seizing the wood'of the company exceeded his powers, and the note is void as having been obtained by duress of goods. But it is apparent, on [341] inspection, that the toll is imposed by the Act on all lumber floated down the stream, irrespective of its destination. On these grounds the judgment is reversed and the cause is remanded for trial on the issues of fact. Mr. Justice Sawyer did not express an opinion.