(dissenting):
I can not agree with the opinion of the court in this case, for the following reasons: I think some of the boats of the appellee are subject to the taxes, or some of such taxes, as are sought to.be collected. The bill .alleges that the boats in question “had not become so blended with the commerce and business of the State of Florida as to make them taxable in this State, and the status and condition of said boats, obtained by reason of their non-resident ownership, and of their registry in the custom house of the city of New York under the act of Congress, had not been affected or changed.” This allegation is not specifically denied. In view of the fact that the general tone and tenor of the answer is a denial to the exemption from taxation by reason of the matters of fact alleged by the bill, I do not think it necessary that there should have been such specific denial of these very allegations. The allegations themselves are not averments of fact, but of opinion from the statement of facts which preceded them.
The bill was filed August 12th, 1891. It appears from the sixth paragraph of the same that four of the complainant’s steamers, viz: the Everglade, Welaka, Fred. DeBary and City of Jacksonville, except the two latter during the summer months and part of the fall months, had from the 15th of November. 1889, formed part of an all water route, in connection with other steamers touching at Jacksonville from the City of New York, to Sanford, Florida. These steamers of complainant being engaged in plying only between Jacksonville and Sanford in this State, and upon waters of the St. Johns river, situated wholly within *522the same. Taken in connection with the fourth paragraph it shows that these steamers not only received, and carried the freights brought from New York by the connecting line, but were engaged in “carrying freight and passengers, and doing the usual traffic business incident to steamboats plying upon a river.” No limit of time is stated within which this business is to continue. Therefore the presumption is, that it is to continue indefinitely. Under this showing I think the steamers Welaka and Everglade appears to be permanently engaged in business, and plying waters located wholly within this-State, and that they are here taxable. I think my conclusion is in accordance with the weight of authority. The authorities appear to be in conflict with each other, but I think this conflict more apparent than real. The general principle settled by the decisions of the Federal courts is that vessels registered according to the provisions of the act of Congress are taxable only in the port of registration, which is called the home port. In all such cases, however, the tax which has been declared illegal was sought to be imposed upon vessels engaged in commerce between ports of different States, or foreign countries, or where it was only temporarily in transitu in the taxing district for the purpose of discharging and receiving passengers and freight. In no case that I have seen has the United States Supreme Court declared such a tax illegal when imposed by a State upon a vessel permanently engaged in plying waters-located wholly within such State. Hurridly reviewing some of these cases, it will be seen that in St. Louis vs. The Ferry Company, 11 Wall. 423, the tax which was declared illegal was assessed upon ferry boats running from East St. Louis, Illinois, across the Missis*523sippi river to St. Louis, Missouri. The company owning them was an Illinois corporation, but its principal •officers resided in St. Louis,' Missouri, and most of the corporation’s business was transacted there. The boats when not in use were kept on the Illinois side where the real estate of the corporation wras located, and where its agents and employes having immediate charge of the boats resided. An ordinance of St. Louis forbade them to remain longer than ten minutes at a time in that city. They were attempted to be taxed as property “within the city.” The court held that the ferry boats were not property within the city and liable to taxation as such. This case overrules a similar case between the same parties, 40 Mo. 580. A case so similar to that of St. Louis vs. The Ferry Company as to need no further statement of the facts is State vs. Haight, 30 N. J. L. 428. Transportation Company vs. Wheeling, 99 U. S. 273, only settles that a steamboat engaged in interstate commerce may be taxed at the home port. In City of New Albany vs. Meekin, 3 Ind. 481, S. C. 56 Am. Dec. 522, a tax was assessed upon a part interest owned by a resident of that city in a steamboat engaged in plying between ports of different States which, in the course of its business, touched occasionally at New Albany. The point decided was, that the property was not “within the city, so as to be liable to such taxation. A very similar case is Wilkey vs. City of Pekin, 19 Ill. 160. In Morgan vs. Parkham, 16 Wall. 471, the vessel upon which the tax was claimed was owned and registered in New York. .It was, however, enrolled and had a coasting license at Mobile, Alabama. It plied between Mobile, Alabama, and New Orleans, Louisiana, making tri-weekly trips, the court held that it wras not sub*524j ect to the tax, and draws a distinction between the registration and the enrollment of a vessel. The enrollment at Mobile, the court held, showed that it was only temporarily at that port. In Hays vs. Pacific Mail Steamship Co., 17 How 596, the vessel was an ocean steamer plying between San Francisco, Panama and ports in Oregon, remaining in San Francisco no longer than was necessary to load and receive cargo and passengers, and in Benicia only long enough for repairs and supplies. The vessel was owned and registered in New York, and was held not liable for taxation in California. In People ex rel. Pacific Mail Steamship Co. vs. Commissioners of Taxes, 58 N. Y. 242. the court held that vessels owned and registered in Hew York, but which had been sent soon after they were built to the Pacific ocean where they were engaged in commerce, without ever having returned to the home port, were taxable in Hew York. Hothing more definite as to the location of the vessels is shown than that they were permanently employed upon the waters of the Pacific ocean.” In the body of this opinion is some broad general language in which it is stated that the Supreme Court of the United States has held in Hays vs. Pacific Mail Steamship Co., supra, and Morgan vs. Parham, supra, “with respect to vessels away from their home ports, that the States in which they came or remained in the course of their employment had no authority to impose taxes; that this jurisdiction belonged to the States where their home ports wrere situated; that their legal situs for purposes of taxation was in their home ports, and that this was not lost by mere absence and employment elsewhere.” I do not understand the case referred to to support the broad proposition quoted. These *525causes as I understand them, set aside the tax assessment for the reason that the vessel was only temporarily within the taxing district. The remarks quoted are merely argumentative, and not essential to the decision of the case. The question before the court was only as to the situs for taxation of sea-going vessels registered and owned in the State where the tax was imposed, but which were absent from the State, in the waters of the Pacific ocean. This case affirmed the same case in 1 Hun. 143.
The only case we have found in which the tax was declared invalid, where the facts appear to be similar to those of the case under consideration, is Roberts vs. Township of Charleviox, 60 Mich. 197, 26 N. W. Rep. 878. The statement of facts in this case is very meagre. The vessel was owned by a non-resident of Michigan, and taxes upon it were paid in Dakota where the owner resided. The only allegation as to the length of time the property was in Michigan is, that it was “used at the time in the navigable waters of this State.” The court held 'similar to the holding cited from 58 N. Y., supra, that “the decisions of the United States Supreme Court have uniformly held that a vessel enrolled and licensed, or registered, under the United States navigation laws does not by engaging in business within a State become subject to its taxing power if the owner is a non-resident,” and cites the same cases cited by the New York court, and St. Louis vs. The Ferry Company, supra, to support the proposition. Prom what has already been said, it appears that the court asserted the proposition more broadly than it is stated in the cases cited. All other cases coming to m'y attention, -where the facts are parallel to those of the present case, maintain the *526validity of the tax. In Minturn vs. Hays, 2 Cal. 590, S. C. 56 Am. Dec. 366, it was held that “a steamboat whose owners reside in New York, by whom it was sent to San Francisco and used in navigation within the State, was liable to assessment and taxation within the State, although it was shown that taxes upon the same were paid in New York. In disposing of the case the court said that any other -construction of the law would be a singular one, ‘ ‘and its practical effect would be that non-resident foreigners would receive the protection of the State in the enjoyment and in the profitable pursuits of commerce and traffic free from any of the burdens of government, and that these shall be borne exclusively by the resident citizens of the State who enjoy no greater benefits and receive no higher protection. * * * That the plaintiffs pay taxes upon the same property in the State of New York, is no ground of complainant dgainst the exercise of a legitimate act of sovereignty by the State of California. I can see no reason why the power of taxation should be conceded to one and not to the other, especially as in the case of the one the property is without, and in the case of the other it is within her limits.” The same principle is stated in Battle vs. Mobile, 9 Ala. 234, S. C. 44 Am. Dec. 438, and in National Dredging Company vs. State, 99 Ala. 462, 12 South. Rep. 720. A useful discussion of the question of the situs of vessels for taxation can be found in Mayor, etc., of Mobile vs. Baldwin, 57 Ala. 61, S. C. 29 Am. Rep. 712. I quote only the following: “Protection is the legal and constitutional consideration of taxation, and that must be presumed to be afforded where it is necessary and a duty. If the owner of personal' property separate it *527from his domicile—commits it to another jurisdiction, so that it is not distinguishable from other property of a like kind within that jurisdiction, or from similar property casually, in the usual course of its use and enjoyment, coming within that jurisdiction—betakes it away from the jurisdiction of his domicile and commits it, not to the comity, but to the power of the place to which he transfers it.”
The latest utterance upon the subject, and with which I fully agree, is from our neighboring sister State of Alabama in the case of National Dredging-Company vs. State, supra. That was a case almost parallel with the present. The corporation in that case, which sought to have its property exempted, was a foreign corporation domiciled in the State of Delaware. A part of the property sought to be exempted from taxation was a steam tug called the Curtis, which was duly registered under the laws of the United States at Wilmington, in said State. It was engaged in carrying on a dredging contract in the channel of Mobile bay. In its petition it alleged that the completion of the contract would “occur shortly,” when it would be removed. The court did not consider such steam tug exempt. It said: “With respect to the tug boat Curtis, a special consideration is advanced in support of its non-taxability. It is a seagoing vessel, propelled by steam, and is entitled to registry under statutes of the United States at the port of its owner’s domicile. As matter of fact, it is registered at the custom house in the city of Wilmington, Delaware. On this the contention is that that being home, it can not be taxed elsewhere. There are many cases which hold that such vessel, engaged in commerce between its home port and others, or even *528wholly between other ports than that of its registry, can be taxed only at the port of registry. It is not our purpose to question these decisions; it is not necessary that we should. They all proceed upon the theory that vessels thus engaged are never in foreign jurisdiction except temporarily, and as an incident to the commerce to which they are devoted, and hence that they do not and can not acquire a situs in foreign ports for the purpose of taxation; they do not become incorporated with the property of other States and countries which they touch intermittently, are never indefinitely there, and their business, the work they perform, the uses to which they are put, is not done and performed within, and are not local to, the foreign State or country. These considerations can have no-application here. The tug Curtis is not engaged in commerce, foreign or interstate. Its business is wholly within Alabama. It is not here temporarily, but indefinitely. It is as much a part of the property of the State for taxation as if it had been chartered for an indefinite period of time to carry freight and passengers, or tow ships over the waters of Mobile bay between the city and Point Clear, or as if its owner had denoted it to the carrying trade of the Alabama river; and surely in these cases it could not be successfully insisted that it was not as much Alabama property for taxation as any other boat devoted exclusively to the navigation of the water courses of the State. The question, indeed, is at last one of situs in fact, and where this is shown neither foreign registry nor foreign ownership is of any consequence.”
The only difference whatever in the situation of the tug Curtis and complainant’s steamers is, that the tug-was not engaged in commerce, foreign or interstate. *529The concluding sentences quoted" above, however, demonstrates conclusively that its engagement in such commerce if wholly within1 the State of Alabama, would not have affected the decision of the court as to the taxability of the property. I do not think the steamers Everglade and Welaka should be exempt from taxation upon the facts of this case; nor that their taxation would be in conflict with the decisions of the United States Supreme Court. These named steamers are property as much as any other property in the State; they obtain their full share of protection from the laws and government of this State. Our statute makes all such property taxable, and I do not think they should escape their just share of the public burden.
I think the decree of the Circuit Court should have been reversed with directions.