Lindsay & Phelps Co. v. Mullen

after stating *the case, delivered the opinion of the court.

Upon the foregoing facts the plaintiff contends: First. That' the boom at the West Newton Slough, through which the logs scaled by the defendant Mullen passed was not “ any boom . . . chartered by law ” within the scope of section 2400 of the Statutes of 1894. This contention cannot be sustained. The words “ chartered by law ” are not to be understood as referring simply to' corporations incorporated' under special acts. A corporation which is organized under a general law is as much “ chartered by law ” as one whose organization is provided for by special act. So that on the face of this

As a matter of fact, this corporation was organized some eighteen days before chapter 221. of the Laws of 1889 was passed. '. Prior to that time there was an act (General Statute Minnesota, 1866, chap. 34, sec. 1, as amended by chap. 13, Laws Minnesota, 1873) which authorized the formation of corporations for various purposes named, and also “other lawful business.” Under that statute this corporation was formed. That the business of booming logs on the waters of streams running through .the forests of the West is a lawful. business cannot be doubted.

In City of Erie v. Canfield, 27 Michigan, 479, 482, the Supreme Court of Michigan said:

“ It is clear that on a river like the Manistee,- which is navi- i gable by steamers for a long distance, but down, which logs, by the million are floated and gathered in booms every season — where in fact the' principal industry ■ consists in’cutting, floating and manufacturing into lumber the forests in its vicinity, and where the river is more valuable for this floatage than for any other navigation; the necessity and. convenience of this floatage must be considered in any rules laid down for _ the public use of the stream, and the need of booming facilities to render the floatage of value. Indeed, to take away the privilege of booming would be to strike a fatal blow at the principal commerce on-the stream; for the vessels which ply between Manistee and other ports are loaded principally with the lumber which 4he mills along the shores of Manistee lake and river are enabled, by means of the privilege of- floating and booming logs upon these waters, to manufacture and place

And in Pound v. Turck, 95 U. S. 459 , 464, is a clear recognition of the,lawfulness of this booming industry, as' appears from the following quotation :

‘-‘.There are.within the State of Wisconsin, and perhaps-other States, many small streams navigable for a short dis-. tance from, their mouths in one of the great rivers of the country, by steamboats, but whose greatest value in.water carriage is as outlets to sawed lógs, sawed lumber, coal, salt, etc. In order to ■ develop their greatest utility in' that regard, it is often essential that such structures as dams, booms, piers, etc., should be used, which are substantial obstfuctions to general navigation, and more or less so to rafts and barges. But to the legislature of the • State may be -most appropriately confided the authority to authorize these structures where their use will do more good than harm, and to impose such regulations and limitations in their construction and use as will best -reconcile and accoinmodate the interest of all concerned in the matter.”

Indeed, it would strike a serious blow at the legislation of many of the Northwestern States and an immense volume of business that has been carried on under the authority of that legislation, to hold that the booming of logs was not a lawful business.

That those words, “ other lawful business,” as found in the statute are not to be-narrowly construed, but are broad enough -to include an Incorporation for this purpose, is made clear by the decision of the- Supreme Court of Minnesota in Brown v. Corbin, 40 Minnesota, 508, 509, in which .the court said :

“ Defendants ilivoke the rule that when particular words are followed by general ones, the general, words are restricted in meaning to objects of the kind particularly enumerated,

and therefore.that the phrase ‘ or other lawful business’ must be limited to a business of the same kind as those. previously-enumerated. We think the rule invoked is not applicable, at least in the narrow and restricted sense, in which defendants seek tó apply it. The kinds of business specifically enumerated bear no common analogy to each other except that they are all for pecuniary profit, and of a strictly private character as distinguished from those to be carried on by quasi public. corporations authorized to exercise the right of eminent domain. Evidently the expression ‘or other lawful business’ was added as a sort of catch-all, for the purpose of including any kind of business for pecuniary profit not elsewhere provided for, and which might- have been omitted from the previous particular enumeration.”

. The corporation then having a legal existence at the time the act of 1889 was passed, section 3 of the act expressly pro-' vided that it should apply to corporations previously organized for the purposes specified in section 2. In other words, all the rights, privileges and powers conferred by the act of 1889 were by this section given to existing corporations. So that we have the case of a corporation, organized under the general law of the State, given by subsequent statute full powers in reference to the maintenance of a boom, and in fact maintaining a boom; and the case therefore comes \yithin the specific description in section 2400 of a boom chartered by law.

Further than that, the legislature of Minnesota accepted the claim of the surveyor Mullen as valid under its laws, and thus impliedly recognized the boom company, involved in this ebntroversy, as one chartered ’by law within the scope of the statutes providing for inspection, scaling and charges therefor.

.The second contention is that the statutes of Minnesota were not intended to and do not in fact give the surveyor general any lien upon the logs of private parties for inspecting and scaling logs’ run through chartered booms. Reference is made by counsel to several statutes in which'there is provision for the action of the surveyor general in surveying and scaling lumber at the instance of parties interested. We deem it

“ Now it appears that there is" a large number t>f persons . . . owning standing timber upon the. upper waters of the St; "Louis and upon, its tributaries, who must float their - logs to market down the St. Louis, some to Fond du Lac, Duluth or Superior, and some to Cloquet, or other points above and near Knife River Falls. The interest of the latter requires that their logs should be stopped before passing Knife River Falls; the interest of the former that their logs should be allowed to run over them without interruption. In

In furtherance of the thought thus expressed the legislature of~Minnesota has given the right to- boom companies duly incorporated to take possession of the great mass of floating logs coming down a stream, and requires that those logs thus taken possession of shall be inspected and scaled under the supervision of some state official. .In that way each individual owner and cutter has a guarantee of safety in respect to his logs, and the general interests are so manifestly subserved that there can be no reasonable doubt of the legislative power

A third proposition is, that it is not shown that the defendant, Mullen, complied with the statutes of the State of Minnesota which give a lien on logs so as to be entitled to any lien on. these logs, or any right of possession thereof, and it is with reference to this matter that the second declaration of law was asked by the plaintiff. The contentions of the plaintiff in-this respect seem to be,'first, that the scale bills were not of-themselves competent evidence, and that without them there was no clear and satisfactory evidence of the number of feet surveyed and scaled ; second, that because they were not recorded in the books of the surveyor general the right to a lien had not arisenand, third, that the testimony shows that the logs 'in fact surveyed and scaled and for which these fees and lien were claimed were not all the property of this plaintiff.

With reference to the general proposition that the defendant, Mullen, by himself and deputies, was busy in scaling logs in that boom during the months named, thére is abundant testimony, and when-the question is only as to the sufficiency of testimony to establish a given fact, it is enough to say that this court does not inquire into the mere matter of sufficiency. Matters-of fact are settled by a verdict of a jury or the general finding of a court, and if there be testimony fairly tending to support the finding, it is'conclusive in this court.

But we are not disposed to question the competency of the scale bills as evidence. Section 2403 provides that the books of the surveyor general’s office “ are hereby declared to be. public records, and of as high degree of evidence as the original instrument therein recorded, and' shall, in all courts and places in this State, be taken and held to be prima facie evidence of the matters therein stated.” In other words, the records, like the original instrument, are prima facie evidence of the matters stated in them. Clark v. C. N. Nelson Lumber Company, 34 Minnesota, 289; Glaspie v. Keator, 12 U. S. App. 281, 290. In both of those cases scale bills some

With regard to the second contention, we do not under-, stand that a record in the books of the surveyor general is preliminary to a right to any lien. By section 2402 he is given a lien for certain services; and while it is true that by section 2400 he is required to record the scale bills in the books of his office, and upon being paid his fees therefor to deliver the original bill to the owner or managing agent of the boom, yet for any services other than the mere making of the record we are of the opinion that under the two sections referred to he establishes his lien by the rendering, of the services and affixing to the scale bill the prescribed certificate.

With respect to the final contention under this head, that the logs of the plaintiff, seized by the surveyor general, were so seized under a claim of lien for services rendered in inspecting and scaling logs other than those of the plaintiff as well as its own, the fact is as claimed. An important question is thus presented whether the logs of one party can be subjected to a lien for surveying and scaling, not only his own logs, but also for surveying and scaling logs belonging to other parties. The statement naturally suggests a negative answer, and ordinarily it may be affirmed that no man’s property can be subject to a lien for services rendered upon some other man’s property. And yet, under the circumstances of the case, we

A final objection is that even this boom was one chartered by law, within the meaning of section 2400, and although, the defendant,- Mullen, had performed all that was required of him by the statute to secure a lien, still the law as applied to this booin, and in so far as the logs in question are concerned, is- a regulation of interstate commerce which the State of Minnesota has no authority to make. It appears that these

Upon these authorities it is contended that the navigation of these logs from the place of cutting in Wisconsin along' the navigable waters of Minnesota, to their market, wherever it may be in the lower waters of the Mississippi, must be free. If Minnesota can burden the transit with the expense of booming, inspection or scaling, why may not Iowa, Illinois, Missouri and any other State along whose borders the logs may pass before reaching their destination ? Even if a State may (as would seem to be indicated by the decisions heretofore referred to), for logs cut within its borders, provide booms, compel their use and enforce payment for the expenses thereof, because for those logs no interstate commerce has commenced, yet here Minnesota is directly regulating the transit of logs cut in another State and passing through its borders on their way to market. This is undoubtedly the most significant if not perhaps the only distinctive Federal question presented in this record.

We are not disposed to limit in the slightest degree the scope artd effect of the decisions referred to. But we are of opinion that these authorities are not pertinent, and that the matter is governed by another line of decisions equally clear and as frequently recognized. The State has a right to improve the waterways within its limits and to make reasonable charges for the use of such improvements, at least until Congress interferes, and either itself assumes control of the improvements or compels their removal. This parallel line of decisions runs back to the early history of this court. In Willson v. Blackbird Creek Marsh, Company, 2 Pet. 245 , it was held that, inasmuch as Congress had passed no act bearing upon the case, the State of Delaware might authorize the building of a dam across the Blackbird Marsh Creek, although thereby a navigable waterway was obstructed. In Pound v. Turck, 95 U. S. 459 , the right of a State to make dams, booms and other instrumentalities to be used in the' navigation of logs and lumber was adjudged. Other decisions affirmed the power

■ “ The exaction of tolls for passage through the locks is as compensation for. the use of artificial facilities constructed, not as an impost upon the navigation of the stream. The provision of the clause that the navigable streams should be highway's without any tax, impost or duty, has reference, to their navigation in their natural state. It did not contemplate that such navigation might not be improved by artificial means, by the removal of obstructions, or by the. making of dams for-deepening the waters, or by turning into the rivers waters from other streams to increase their depth.' For outlays caused by such works the State may exact reasonable, tolls. They are like charges for the use of wharves and docks constructed to facilitate the landing of persons and- freight, and the taking them on board, or for the repair of vessels.”

In Sands v. Manistee River Improvement Co., 123 U. S. 288 , 295, a corporation had been authorized by the State of Michigan to improve the Manistee River, and to charge tolls for the use of the improvement. An action to collect tolls was resisted on the ground that the imposition was a taking of property without due process of law, which contention was overruled, and in the course of the opinion it was said.:

“ The Manistee River is wholly within the limits of Michigan. The State, therefore, can authorize any improvement which in its judgment will enhance its value as a means of transportation from one part of the State to another. The internal commerce of a State — that is, the commerce which i§ wholly confined within its limits — is as much under its control as foreign or interstate commerce is under the control of the general government; and, to encourage the growth of this commerce and render it safe, the States may provide for the removal of obstructions from their rivers and harbors, and deepen their channels, and improve them in other ways,, if, as is said in County of Mobile v. Kimball, the free navigation of

Many other cases of similar import might be cited, but these are enough to disclose the principle which is clearly recognized.

The principal works of the boom company are wholly within the State of Minnesota. The centre of the main channel of the Mississippi Eiver is northeast of the island. The State of Minnesota had therefore the undoubted right to improve this portion of the Mississippi Eiver. lying southwest of the island for the purpose of facilitating thh navigation of logs. It could do the work itself, or could authorize a corporation to do the work, and it could prescribe any reasonable fees for the use of the improvement. The power of the State to authorize the construction of these works did not depend at all upon the question whence all or most of the logs likely to be run into the boom should come. It is enough that the State authorized this improvement and prescribed the.conditions upon which it might be used by any owner of logs. These conditions are not shown to be unreasonable. It -is a legitimate exercise of power on the part of a State to provide state supervision of what is done in works of such a character, and to require payment of reasonable charges for such supervision. It does not appear that the plaintiff was compelled, to avail itself of this boom; that its logs were forcibly seized by the boom company, and against its will passed through the boom. On the contrary, it would seem hot improbable from the testimony that the persons who organized and owned the boom company were engaged in the-

It is true that that which is called.a “ shear boom ” extended across the navigable channel of the Mississippi and to near the Wisconsin shore; but if neither the State of Wisconsin nor the United States complained of this as an obstruction of the navigation of the Mississippi, it does not lie in the mouth of the plaintiff to complain. Indeed, its complaint is not that the shear boom interfered with its rights of navigation in any way, but that after its logs had been passed into the works constructed under the authority and within the limits of the State of Minnesota it was not permitted to avail itself of the advantages furnished thereby and repudiate the charges prescribed by the State.

Before passing from a consideration of the right of this boom company under its charter to place the shear boom across the main channel of the Mississippi it may not be inappropriate to notice a decision of the Supreme Court of Wisconsin upon a like questioh. In J. S. Keator Lumber Company v. St. Croix Boom Corporation, 72 Wisconsin, 62, 88, it appeared .that the St. Croix Boom Company was a cor-' poration created by the State of Minnesota, and that it had constructed its boom on the St. Croix River at a-place where the river was the boundary line between Minnesota and Wisconsin, and wholly., occupied the river with its works. An action was brought to recover damages on account of the way in which the boom was constructed and operated. The opinion ofc the Supreme Court, by Mr. Justice Cassoday, is a very elaborate discussion of the rights of parties. In it it is ;aid:

“ The obstructions here complained of were in that part of the St. Croix River constituting the boundary line between

this State arid Minnesota. The defendant justifies under corporate authority derived solely from. Minnesota. ■ We are here confronted with the question whether such authority, so granted by that State alone and without the concurrence of this, is of any validity. Our constitution declares that ‘ the State shall have concurrent jurisdiction on all rivers and lakes bordering on this State, so far as such rivers or lakes shall form a common boundary to the State and any other State or Territory now or hereafter to be formed and bounded by the same.’ (Sec. 1, Art. IX, Const. Wis.) This provision is substantially the same as the third section of the act of Congress of August 6, 1846, enabling the organization of this State preparatory to its admission into the Union. Substantially the same provision, as applied to Minnesota, is found in sec. 2 of art. II of the constitution of that State, which is in substance the same as section 2 of the enabling act for the organization of that State passed by Congress in 1857. Such ‘ concurrent jurisdiction,’ therefore, is fairly established by the combined action of the general government and each of these two States. Its significance is the important inquiry presented. No one will deny that the one State has as much jurisdiction over the commerce of the river as the other, nor that the jurisdiction of each and both must be and remain subordinate to any action of Congress under the commercial clause of our national Constitution. The question recurs whether one of. these States, without the concurrence of the other, can legally grant the booming -privileges and rights authorized by the defendant’s charter.”

Without attempting fully to define the rights which either State might grant, it was held that a private party could not maintain an action for damages on the ground that Minnesota had exceeded its jurisdiction in granting rights upon waters within the limits of Wisconsin. Referring to Rundle v. Delaware & Raritan Canal Co., 14 How. 80 , the court stated the facts and the rulings in that case, and summed up its own views in these words (pages 98, 99):

- “ The plaintiffs owned certain mills in Pennsylvania, opposite Trenton, New Jersey, supplied with water from a dam in the

Delaware River, by a title running back prior to 1771. In that year the two provinces, which subsequently became the States of Pennsylvania anti New Jersey, respectively passed acts declaring the river a common highway for the purposes of navigation, and appointed commissioners with full power to improve such navigation and remove any obstructions. By compact in 1783, it'was agreed by the two States that the river should continue to be and remain a common highway in its whole length and breadth, equally free and open for the use, benefit and advantage of each of the two States. The defendant company was' incorporated under the laws of New Jersey in 1830, and was thereby authorized to afld did construct a canal in that State, with a feeder from a dam in that river above the plaintiffs. The action was brought by reason of the diversion of such water, to the damage of the plaintiffs. The court held, in effect, that the plaintiffs had no grant of the- usufruct of the waters of the river, but only a license to draw from their dam ; that such license was revocable and in subjection to the superior right of the State to divert the water for public improvements, either by the State directly or by a corporation created for that purpose; that the plaintiffs, being but tenants-at sufferance in the usufruct of the water of the two States, who owned thfe river as tenants in common, were hot in a condition to question the relative rights of either State to use its waters without the consent of the other; that as, by the laws of their own State, the plaintiffs could have had no remedy against a corporation authorized to take the whole waters of the river for the purpose of canals or improving the navigation, so they could not sustain a suit against a corporation created by New Jersey for the same purpose, which had taken a part of the waters. The principle of that decision seems to be that a mere private party should not be heard to complain that one of two States, divided by such river, had invaded the rightful jurisdiction of the other by diverting more than its share of the waters. So here, we think, the plaintiffs are not entitled to be heard as to whether Minnesota has infringed the rightful jurisdiction of Wisconsin. This State is not a party to this suit, and her comparative rights in

and upon the waters of the river at the points in question cannot be adjudicated in this action.”

Witho.ut pursuing this subject further, we are of opinion that the improvement made in the Mississippi Eiver by the construction of the boom and its works, and the exaction of reasonable charges for the use of such works, including fees of state officials for inspecting and scaling, if done under state authority, cannot be considered in any just sense a burdéri upon interstate commerce. It is nothing more than action upon the part of a State in furnishing additional facilities for the navigation of the waterway, and for such additional facilities reasonable charges may be exacted. The “ shear boom,” even though it extends across the main channel of the Mississippi Eiver and into the territory of Wisconsin, was not complained of by that State, and the plaintiff cannot be heard ■ to raise any question in that respect. Indeed, its only purpose was to enable the boom company the more easily to collect the logs of plaintiff and others floating down the stream. The work of separation and brailing was done wholly within the limits of the State of Minnesota in works constructed therein. For these reasons we are of opinion that the judgment of the court below was right, and it is

Affirmed

Mr. Justice Peckham, with whom concurred Mr. Justice Harlan, Mr. Justice Brown and Mr. Justice White, dissenting.

. I dissent from that portion of the opinion of the court which determines the validity of a lien upon the logs of one owner in order to secure payment of the fees for the inspection and scaling of logs owned by another.

The situation in which the log owner is placed practically compels him to make use of the boom for the purpose of having his logs inspected and scaled as required by the law, and under such circumstances he cannot be properly or fairly held, by the use of the boom, to consent that his property should be taken for the debt of another person. The mere inconvenience, however great or small, to the inspector, of having

If an owner is practically compelled, in order to conform to a statute, to use a warehouse for the receipt of his grain, I think it plain that- it Avould be utterly illegal to permit a lien on the grain of such owner to attach, for the purpose of obtaining payment for the services of a state inspector in inspecting the grain of another. Whilst as now decided by the court, a state regulation which substantially compels the sending of logs into the boom to be there inspected and scaled, may not be a regulation of interstate commerce, I think a state regulation Avhich confiscates the logs, of one person to pay the debt of another clearly constitutes such a direct burden upon that commerce as to cause the statute making the regulation, at least to that extent, to be repugnant to the Constitution of the United States.

Without enlarging upon what seems to me a very great inroad made upon the rights of individual property by the opinion- of the court herein, I am content merely to record my dissent from the doctrine therein announced.

I am authorized to say that Mr. Justice Harlan, Mr. Justice Brown and Mr. Justice White concur in this dissent.