Opinion of the Court-REAVIS, C. J. [25 Wash.

office as assessor, and alleges that he arbitrarily, fraudulently, and maliciously overvalued personalty in the water works; that the tugs were ocean-going tugs, and in use wherever charters were available; that each was registered, under § 4319, Rev. St. U. S., at the port of San Francisco, and was assessed and paid taxes in the state of California; that plaintiff was a corporation organized under the laws of California and qualified to do business in the state of Washington. The superior court, after trial, found substantially the following facts: That the tugs Traveler, Astoria and Printer and the water works were assessed at a fair cash valuation required by law; that all the property mentioned was a part of the taxable personal property situate in Chehalis county, and said tugs, and each thereof, were so blended with the personal property in general situated in said county that it was impossible to distinguish it therefrom; that such property, and the whole thereof, was controlled at Hoquiam by the resident management of the plaintiff corporation, and each of said tugs was and has been engaged in plying wholly within the waters of this state. It concluded that the tax was legal and justly due, and rendered judgment dismissing the action.

The material controversy here is the validity of the assessment upon the three tugs. Counsel for plaintiff urges that, as these tugs were registered in the port of San Francisco, they are not liable to taxation in this state. The question is not entirely free from doubt. In 1854 the right to tax a vessel engaged in interstate commerce was considered by the supreme court of the United States in Hays v. Pacific Mail Steamship Co., 17 How. 596. The facts were that the steamship company was incorporated under the laws of New York; that all the stockholders were residents and citizens of that state; that the principal office for transacting business was in the city of New

April, 1901.] Opinion of the Court-REAVIS, C. J.

York, but the company had agencies in the cities of Panama, New Grenada, and San Francisco, California, and had a naval yard and ship yard for repairs at Benicia, California; that, on the arrival of the ships at the port of San Francisco, they remained no longer than to land passengers, mail, and freight, usually done in a day, then proceeded to Benicia for repairs and refitting until the commencement of the next voyage, usually some ten or twelve days; that the business they were engaged in was transportation of passengers and merchandise, treasure, and the United States mail between the city of New York and the city of San Francisco, by way of Panama, and between San Francisco and different ports in the territory of Oregon; that the company was the sole owner of the vessels, and no portion of the interests was owned by citizens of California; that the vessels were all ocean steamships, employed exclusively in navigating the ocean, and each of them was registered at the custom house in New York, where the owners resided; that taxes had been assessed upon all the capital of the company represented by the steamers in the state of New York under the laws of that state; that the vessels were assessed in the county of San Francisco, California, and the suit was to recover taxes paid under protest. The tax collector demurred to the complaint, and judgment was given for the plaintiffs. The court, in affirming the judgment, referred to the federal statutes of the 31st of December, 1792, and the 29th of July, 1850, which provide for the registration of vessels at the port which shall be at or nearest the owner, if there be but one, or if more than one, nearest the place where the husband or the acting and managing owner usually resides, and also the provision for the recording of bills of sales, mortgages, and conveyances in the office of

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Opinion of the Court-REAVIS, C. J. [25 Wash.

the collector of customs where the vessel is registered or enrolled, and observed:

"These provisions, and others that might be referred to, very clearly indicate that the domicile of a vessel that requires to be registered, if we may so speak, or home port, is the port at which she is registered and which must be the nearest to the place where the owner or owners reside.” In speaking of the vessels it was said:

"They are thus engaged in the business and commerce of the country, upon the highway of nations, touching at such ports and places as these great interests demand, and which hold out to the owners sufficient inducements by the profits realized or expected to be realized. And so far as respects the ports and harbors within the United States, they are entered and cargoes discharged or laden on board, independently of any control over them, except as it respects such municipal and sanitary regulations of the local authorities as are not inconsistent with the constitution and laws of the general government, to which belongs the regulation of commerce with foreign nations and between the states. Besides, whether the vessel, leaving her home port for trade and commerce, visits in the course of her voyage or business, several ports, or confines her operations in the carrying trade to one, are questions that will depend upon the profitable returns of the business, and will furnish no more evidence that she has become a part of the personal property within the state and liable to taxation at one port than at the others. She is within the jurisdiction of all or any one of them temporarily, and for a purpose wholly excluding the idea of permanently abiding in the state, or changing her home port."

Again, in Morgan v. Parham, 16 Wall. 471, the facts were that a vessel, the Frances, was brought to Mobile, Alabama, which was duly registered at the port of New York, under the ownership of the plaintiff, according to the acts of congress. The plaintiff was, and had since remained, a citizen of New York, and the vessel was the

April, 1901.] Opinion of the Court-REAVIS, C. J.

property of the plaintiff. The vessel was assessed as personal property in the city of Mobile. The tax remaining unpaid, the vessel was seized by the collector of the city. The owner brought an action for trespass against the collector for such seizure, and the collector justified by virtue of his tax warrant. The vessel was brought to Mobile in 1865. From that time until 1870 it had been employed as a coasting steamer between Mobile and New Orleans. In January, 1867, the vessel was regularly enrolled at the custom house by her master as a coaster, and license was issued in 1863 and 1869 as a coaster, and the Frances was one among several of a daily line of steamers plying between Mobile and New Orleans. The captain of the vessel was a resident of Mobile, and the agent conducting the business of the vessel at Mobile was resident there, occupying an office for such business, and paid the persons who assisted him, but was under the control of his superior agent, residing in New Orleans, who employed and paid the captain. A wharf and office in Mobile were occupied for the use of the vessels. They transported the mails, freight, and passengers between Mobile and New Orleans. The court held the tax was invalid, and said:

"The fact that the vessel was physically within the limits of the city of Mobile, at the time the tax was levied, does not decide the question. Thus, if a traveler on that day had been passing through that city in his private carriage, or an emigrant with his worldly goods on a wagon, it is not contended that the property of either of these persons would be subject to taxation as property within the city. It is conceded by the respective counsel that it would not have been. On the other hand this vessel, although a vehicle of commerce, was not exempt from taxation on that score. A steamboat or a post-coach engaged in a local business within a state may be subject to local taxation, although it carry the

Opinion of the Court-REAVIS, C. J. [25 Wash.

mail of the United States. The commerce between the states may not be interfered with by taxation or other interruption, but its instruments and vehicles may be. It is not, therefore, upon this principle that we are to decide the case. The imposition in this class

of cases was a tax upon the use of the public waters of the country, and tended immediately to interfere with and to obstruct the commerce between the states. In the instance before us the tax was upon a vessel at the wharf. It was in this respect as if a tax had been laid upon lumber or cotton lying on the dock at Mobile. This vessel was owned by and employed in the service of a resident of the state of New York. It was primarily and presumptively taxable under the authority of that state, and of that state only."

And again the court concludes:

"It is the opinion of the court that the state of Alabama and no jurisdiction over this vessel for the purpose of taxation, for the reason that it had not become incorporated into the personal property of that state, but was there temporarily only, and that it was engaged in lawful commerce between the states with its situs at the home port of New York, where it belonged and where its ow ner was liable to be taxed for its value."

It is also said that it was immaterial whether the steamer, the Frances, was actually taxed in New York or not; she was liable to taxation there.

Again, in Moran v. New Orleans, 112 U. S. 69 (5 Sup. Ct. 38), a municipal ordinance of the city of New Orleans to establish the rate of license for professions, callings, and other business, which assessed and directed to be collected from persons owning and running towboats to and from the Gulf of Mexico and the city of New Orleans was adjudged to be a regulation of commerce among the states and invalid. It will be observed that the first two cases seem to put the invalidity of the tax upon the ground of an interference with commerce among the