I agree with Judge BARTLETT that the only question presented on this appeal is whether the business carried on by the relator, and for which a franchise tax has been imposed, is interstate commerce or not. For, though it may be that the state of New York could levy a franchise tax on the gross earnings of a foreign corporation for the privilege given it of running a cab line within this state, even for the purposes of interstate commerce (see Maine v. Grand Trunk Ry. Co., 142 U.S. 217; cited with approval, American Refrigerator T. Co. v. Hall, 174 U.S. 70), section 184 of *Page 356 our Tax Law excludes earnings derived from business of an interstate character from liability to the tax. I insist, however, that the transportation for which the relator has been taxed is not interstate commerce. It is not rendered under any contract for transportation from a point within the state to a point without the state, or vice versa, but is solely a carriage between two points within the state under a separate contract. As pointed out by the Appellate Division, the use of the relator's cabs is not restricted to those who have previously secured transportation to or from some point on its railroad, nor is such use confined to travelers upon the railroad. Such a traveler may be accompanied by a friend to or from the ferry only, and one intending to travel upon the railroad may change his intention when he reaches the ferry. It is first to be observed that the fact that the relator is a foreign corporation has no effect on the question whether its cab service is interstate commerce or not. A domestic corporation or an individual citizen of this state may engage in interstate commerce as well as any foreign corporation. Transportation from the city of New York to the town of Port Chester is domestic or intra-state commerce, because both places are in this state, although the transportation is performed by a foreign corporation, the New York and New Haven Railroad Company. Transportation from the city of New York to Paterson, New Jersey, is interstate commerce, although it is over the road of a New York corporation, the Erie Railway Company. Therefore, it is the character of the service, not the character of the carrier, that determines whether the transportation is interstate commerce or not. If in the instance suggested by counsel, when a person intending to travel to Washington takes one of the relator's cabs to carry him from the Fifth Avenue Hotel to the relator's ferry station, that transportation is interstate commerce, it is necessarily equally so when he is carried by a cab called from the hack stand in Madison Square opposite. A carrier may engage in both interstate commerce and in domestic commerce, but that fact does not determine the character of the carrier's whole *Page 357 business or change what would otherwise be domestic commerce into interstate commerce, or vice versa. The fact, therefore, that cabs from the ordinary stands take passengers to any part of the city, does not affect the character of their service when they carry passengers to railway or ferry stations within the state on journeys to points without the state. Nothing is better settled by the decisions of the Supreme Court of the United States than that in the case of interstate transportation the legislature cannot prescribe the charge to be made for even that part of the transportation which is to be performed within the state. (Wabash, etc., Ry. Co. v. Illinois, 118 U.S. 557.) Hence, if the doctrine contended for by the relator is correct, the city of New York has no right to prescribe the fares to be charged by public hacks or cabs for transporting travelers to the ferries on the North river except when the traveler intends to take passage to some point in the state of New York, nor for taking travelers to the Grand Central Station, when such travelers are journeying to Boston or to the west.
If this cab service can in any way become part of interstate commerce (of which there may be some doubt as I shall show by the authorities), I insist it can only be such when the service is rendered under an entire contract for continuous carriage to or from some point without the state. It may be that there is no case in the Supreme Court of the United States which directly decides this proposition. But there is no authority to the contrary and there are a number of cases in that court which seem to recognize this as the true test of what transportation constitutes interstate commerce. The question has been presented in litigations arising under the Interstate Commerce Act with reference to railroad companies whose roads lay entirely within a single state. Of such a case the Supreme Court said inCincinnati, New Orleans, etc., Ry. Co. v. Interstate CommerceCommission (162 U.S. 184): "It may be true that the `Georgia Railroad Company,' as a corporation of the State of Georgia, and whose entire road is within that State, may not be legally compelled to submit *Page 358 itself to the provisions of the act of Congress, even when carrying, between points in Georgia, freight that has been brought from another State. It may be that if, in the present case, the goods of the James and Mayer Buggy Company had reached Atlanta, and there and then, for the first time, and independently of any existing arrangement with the railroad companies that had transported them thither, the Georgia Railroad Company was asked to transport them, whether to Augusta or to Social Circle, that company could undertake such transportation free from the control of any supervision except that of the State of Georgia. But when the Georgia Railroad Company enters into the carriage of foreign freight, by agreeing to receive the goods byvirtue of foreign through bills of lading, and to participate inthrough rates and charges, it thereby becomes part of a continuous line, not made by a consolidation with the foreign companies, but made by an arrangement for the continuous carriage or shipment from one State to another, and thus becomes amenable to the Federal act, in respect to such interstate commerce." So in Louisville Nashville Railroad Company v. Behlmer (175 U.S. 648) it was held that the fact that "the several carriers transported hay from Memphis under through bills of lading, by continuous carriage, to Summerville and Charleston" rendered the traffic interstate commerce even as to that part of it performed by a carrier furnishing transportation wholly within a single state. If this be the true doctrine as to the transportation of property, I do not see why it is not equally the true doctrine as to the transportation of persons.
I have suggested that there was some doubt whether under the authorities the relator's cab service could become a part of interstate commerce. In Munn v. Illinois (94 U.S. 113, Chicago elevator cases), in answer to the claim that the warehouses and elevators were instrumentalities of interstate commerce, it was said by the court: "The warehouses of these plaintiffs in error are situated and their business carried on exclusively within the limits of the State of Illinois. They areused as instruments by those engaged in State as well as *Page 359 those engaged in interstate commerce, but they are no morenecessarily a part of commerce itself than the dray or the cartby which, but for them, grain would be transferred from onerailroad station to another. Incidentally they may become connected with interstate commerce, but not necessarily so. Their regulation is a thing of domestic concern, and, certainly, until Congress acts in reference to their interstate relations, the State may exercise all the powers of government over them, even though in so doing it may indirectly operate upon commerce outside its immediate jurisdiction." In Coe v. Errol (116 U.S. 517) it was said: "`Whenever a commodity has begun to move as an article of trade from one State to another, commerce in that commodity between the States has commenced. (The DanielBall, 10 Wall. 565.)' But this movement does not begin until the articles have been shipped or started for transportation from the one State to the other. 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." In the recent case of Detroit, etc., Ry. Co. v. Interstate Commerce Commission (43 U.S. App. 308) it was held that the cartage of goods by the railroad company to and from the station for shippers and consignees was not within the Interstate Commerce Act. It is there said: "We cannot think that, under the circumstances, it was the intention of Congress to confuse in our legislation the carting to and from the stations with the transportation on the rails, and if the act can be interpreted to avoid that confusion, it should be done. We may suppose, since with us it is a business done almost exclusively by outsiders and rarely by the railroad companies, and beingusually done wholly within the territorial limits of a State isnot within the jurisdiction of Congress, that it was not intended to interfere with it except so far as it might affect directly the transportation of goods between the States, by being used as a device to evade the jurisdiction over that subject." This *Page 360 case was affirmed by the Supreme Court in 167 U.S. (p. 633) which expressed its approval of the view of the court below "that the railway transportation ends when the goods reach the terminus or station and are there unshipped, and that anything the company does afterwards, in the way of land transportation, is a new and distinct service, not embraced in the contract for railway carriage."
There remain to be considered two cases on which the relator largely relies as authorities for its contention. The first is a case of the relator in this court reported in 138 N.Y. (p. 1). There it was held that a franchise tax could not be imposed on the relator for capital invested in its ferry station and terminal grounds in the city of New York, although the property itself was subject to taxation. At that time the business of the relator, so far as it was prosecuted within this state, was confined to the operation of a ferry from Jersey City to New York and to the maintenance at the latter place of its wharves, ferry house and terminal facilities. The case was unquestionably properly decided under the doctrine declared in Gloucester FerryCo. v. Pennsylvania (114 U.S. 196). There the plaintiff, a New Jersey corporation, ran a ferry from Gloucester in that state to Philadelphia. It had no property in the latter city other than a wharf which it leased. Its steamboats were registered in New Jersey. A tax imposed by the state of Pennsylvania upon the dividends of all corporations doing business within the state was held illegal as against that company. Judge FIELD said: "As to the second reason given for the decision below, that the company could not lease its wharf in Philadelphia except by the implied consent of the Legislature of the Commonwealth, and thus is dependent upon the Commonwealth to do its business, and, therefore, can be taxed there, it may be answered that no foreign or interstate commerce can be carried on with the citizens of a State without the use of a wharf, or other place within its limits on which passengers and freight can be landed and received, and the existence of power in a State to impose a tax upon the capital of all corporations engaged in foreign or *Page 361 interstate commerce for the use of such places would be inconsistent with and entirely subversive of the power vested in Congress over such commerce." It is contended that no distinction can be drawn between the right of the relator to transport its passengers by ferry to the city of New York across the waters of the Hudson, which are within the limits of this state, and its right to transport passengers by cabs to and from points in the city of New York. I insist that there is a marked distinction between the two rights, and that the distinction is recognized in all the cases in the Supreme Court of the United States which deal with the subject. In Railroad Company v. Maryland (21 Wall. 456) it was urged that transportation on land was governed by the same principle as transportation by water and exempt to the same extent from state control. The court decided against this contention, and it was held: "Commerce on land between the different States is so strikingly dissimilar in many respects from commerce on water, that it is often difficult to regard them in the same aspect in reference to the respective constitutional powers and duties of the State and Federal governments. No doubt commerce by water was principally in the minds of those who framed and adopted the Constitution, although both its language and spirit embrace commerce by land as well. Maritime transportation requires no artificial roadway. Nature has prepared to hand that portion of the instrumentality employed. The navigable waters of the earth are recognized public highways of trade and intercourse. No franchise is needed to enable the navigator to use them. Again, the vehicles of commerce by water being instruments of intercommunication with other nations, the regulation of them is assumed by the National legislature. So that State interference with transportation by water, and especially by sea, is at once clearly marked and distinctly discernible. But it is different with transportation by land." The foregoing extract from the case cited was quoted with approval in Pullman's Car Co. v. Pennsylvania (141 U.S. 18). The navigable waters of the United States, even when they lie *Page 362 exclusively within the limits of a state, are open to all the world, except so far as Congress may prescribe to the contrary, and it requires no leave or license from a state (except compliance with its police regulations and possibly payment of tolls imposed to defray the cost of improvements in navigation) for a vessel to journey on those waters. Not so on the land. No one can construct and operate a turnpike or railroad within a state unless by grant from the state or by the authority of Congress under its constitutional power to establish post roads.
The second case relied on by the appellant is The Daniel Ball (10 Wall. 557). In that case the question was whether a steamboat engaged in navigating Grand river, Michigan, wholly within that state, was required to take out a license in compliance with the provisions of the United States statute. Some articles of freight carried by the vessel were marked for points without the state, though it did not appear that they were being transported under any agreement for continuous transportation to such points. It was held that the steamer was engaged in interstate commerce and subject to the regulations of Congress. Doubtless this case would be an authority for the position of the relator had not the court been careful to say: "The present case relates to transportation on the navigable waters of the United States, and we are not called upon to express an opinion upon the power of Congress over interstate commerce when carried on by land transportation." InLord v. Steamship Company (102 U.S. 541) the question was as to the application of an act of Congress limiting the liability of shipowners to the case of a vessel navigating the high seas between ports of the same state. It was held that the transportation was subject to congressional regulation. In that case there appears to have been found no freight destined to points without the state. So it was necessary to place the decision on a different ground from that on which the decision inThe Daniel Ball rested. It was held that while Congress had no control over the internal commerce of the state, still the vessel when navigating the Pacific ocean, *Page 363 though between two ports of the same state, was engaged in commerce with foreign nations and was subject to the regulating power of Congress. Matter of Garnett (141 U.S. 1) presented the question again. There a steamer was engaged in the carrying trade between Augusta and Savannah, both on the same river in the state of Georgia. The petitioner, a shipper of goods between these two points, alleged that the shipowner's liability was not subject to limitation by the act of Congress. The case did not fall within the principle of the decision in The Daniel Ball or of that inLord v. Steamship Company. It was held that the shipment was subject to the act of Congress, not because it was any part of interstate or of foreign commerce, but by virtue of "the admiralty and maritime jurisdiction granted to the Federal government by the Constitution of the United States," which extends to all public navigable waters. In Lehigh ValleyRailroad Company v. Pennsylvania (145 U.S. 192) it was contended that the state of Pennsylvania had no power to tax the plaintiff on transportation over its railroad from one point in the state to another where, for a part of the distance, a passenger was carried through another state. Reliance was placed by the plaintiff in error on the decision of the court in Lord v. Steamship Company (supra). It is difficult to see why if transportation from one point in a state to another is foreign commerce, because the vessel furnishing the transportation navigates the high seas in its voyage between those places, the same principle would not render transportation by railroad from one point to another in the same state, where the line of the railroad for a part of the distance lay in another state, interstate commerce. The court, however, held that it was not interstate commerce, and while upholding the decision in theLord case practically repudiated the ground on which the decision had been placed. Of the Lord case the court said: "But it was unnecessary to invoke the power to regulate commerce in order to find authority for the law in question. As stated by Mr. Justice BRADLEY In re Garnett (141 U.S. 1, 12): `The act of Congress *Page 364 which limits the liability of shipowners was passed in amendment of the maritime law of the country, and the power to make such amendments is coextensive with that law. It is not confined to the boundaries or class of subjects which limit and characterize the power to regulate commerce; but in maritime matters, it extends to all matters and places to which the maritime law extends.'" It will thus be seen that the control of Congress over ships, vessels and the navigation of public waters has finally been placed by the Supreme Court of the United States on the solid foundation of the maritime and admiralty jurisdiction of the Federal government, and that while the decisions actually made in The Daniel Ball and Lord cases remain the law, the grounds on which they proceeded are no longer deemed tenable and the opinions rendered in those cases, no longer authorities.
In closing, reference should be made to the recent decision of this court in People ex rel. N.Y.C. H.R.R.R. Co. v. Morgan,Comptroller (168 N.Y. 1). That case, so far from being in conflict with the views I have expressed, is a direct authority for the proposition that the liability of a carrier corporation to a franchise tax on its transportation depends not on the question whether the carrier is a domestic or foreign corporation, but on the character of the transportation itself.
The order appealed from should be affirmed, with costs.