3 and no action is maintainable for a tort causing death,' the right of action in such cases, when conferred by a state statute, is enforcible in a state court in case of death caused by collision in navigable waters, which are within the jurisdiction of the state and also within the admiralty jurisdiction of the United States, and it is also enforcible in the common law courts of the United States and in the admiralty courts of the United States,* In his judgment in Sherlock v. Alling 5 Field, J., says, "it is true that the commercial power conferred by the Constitution is one without limitation. It authorizes legislation with respect to all the subjects of foreign and interstate commerce, the persons engaged in it, and the instruments by which it is carried on.. The power to prescribe these and similar regulations necessarily involves the right to declare the liability which shall follow their infraction. Whatever, therefore, Congress determines, either as to a regulation or the liability for its intringement, is exclusive of state authority. But with reference to a great variety of matters touching the rights and liabilities of persons engaged in commerce, either as owners or navigators of vessels, the laws of Congress are silent, and the laws of the state govern. Until Congress, therefore, makes some regulation touching the liabilities of parties for marine torts resulting in the death of the persons injured, we are of the opinion that the statute of Indiana applies, giving a right of action in such cases to the personal representatives of the deceased, and 1 Higgins v. Bucher, Yelv. 89; Baker v. Boulton, 1 Camp. 493; Ex parte Gordon, 104 U. S. 515; Crapo v. Allen, 1 Sprague 184; sed. cf. Cutting v. Seabury, ibid. 522. 2 American Steamboat Co. v. Chase, 16 Wall. 522; Sherlock v. Alling, 93 U. S. 99. 3 C. & N. W. Ry. v. Whitton, 13 Wall. 270. • Ex parte Gordon, 104 U. S. 515; Ex parte Ferry Co., ibid. 519. 5 93 U. S. 103. 6 that, as thus applied, it constitutes no encroachment upon the commercial power of Congress." 34. There are three cases which illustrate clearly the necessary limitations upon the exercise by Congress of its power over subjects of commerce, and the equally necessary limitation of the implied restrictions upon state action. In the Trade-Mark Cases,' the question was as to the constitutionality of the acts of Congress of 14 August, 1876, and 8 July, 1870,3 which authorize the registration in the Patent Office of devices in the nature of trade-marks, make the wrongful use of a registered trade-mark a cause of action in a civil suit for damages, and punish by fine and imprisonment the fraudulent use, sale, and counterfeiting of registered trade-marks. The court in a judgment read by Miller, J., declined to decide, "whether the trade-mark bears such a relation to commerce in general terms as to bring it within congressional control, when used or applied to the classes of commerce which fall within that control, but held, that the statutes in question, not being limited in terms, or by the essential nature of their subject-matter, to the regulation of trade-marks in their relation to "commerce with foreign nations, and among the several states, and with the Indian tribes," they must be held to have been enacted in "the exercise of a power not confided to Congress," and are, therefore, unconstitutional. Prior to the judgment in the trade-mark cases, some of the Circuit Courts of the United States had sustained the constitutionality of the trade-mark legislation, and in McLean v. Fleming,5 Clifford, J., had said, "protection for lawful trade-marks may be obtained by individuals, firms, or corporations entitled to the 1 100 U. S. 82. 4 Rev. Stat. Sec. 4937 to 4947. 5 96 U. S. 248. 66 same, if they comply with the requirements prescribed by the act of Congress. In Nathan v. Louisiana,' the facts were that the state of Louisiana having, by a statute, imposed an annual tax upon money or exchange brokers," and the state having brought an action in one of its courts against Nathan, a broker dealing in foreign and interstate bills of exchange, for the collection of taxes unpaid, obtained a judgment. against him, which was affirmed in the state court of last resort, and also by the Supreme Court, on the ground that a state has the right to tax its own citizens for the prosecution of any business within the state, although that business may consist in dealing in instruments of commerce.2 In People v. Commissioners,3 the facts were, that Haneman, a resident of New York, having been assessed for taxation under the laws of that state on his personal property as of 1 January, 1876, and having objected to the validity of the assessment as affecting the bulk of his property, on the ground that 1 8 How 73. McLean, J., said, p. 80, "this is not a tax on bills of exchange. Under the law, every person is free to buy or sell bills of exchange, as may be necessary in his business transactions; but he is required to pay the tax if he engage in the business of a money, or an exchange, broker. The right of a state to tax its own citizens for the prosecution of any particular business or profession, within the state has not been doubted. . . . He is not engaged in commerce, but is supplying an instrument of commerce. He is less connected with it than the ship builder, without whose labour foreign commerce could not be carried on. The taxing power of a state is one of its attributes of sovereignty, and where there has been no compact with the federal government, or cession of jurisdiction for the purposes specified in the Constitution, this power reaches all the property and business within the state, which are ›t properly denominated the means of the general government; and, as laid down by this court, it may be exercised at the discretion of the state. . . Whatever exists within its territorial limits in the form of property, real or personal, with the exceptions stated, is subject to its laws; and also the numberless enterprises in which its citizens may be engaged. These are subjects of state regulation and state taxation, and there is no federal power under the Constitution which can impair this exercise of state sovereignty." 3 104 U.S. 466. that property was "continuously employed in the business of exporting cotton from the United States of America to foreign countries," and "in purchasing and paying for cotton in different states of the United States," it was argued on his behalf " that products of the United States, which have passed the Customs Department, and are on shipboard, in the course of exportation to a foreign market, have become exports, and are no longer within the taxing power of the state; that to tax money invested in such products is, in effect, laying an impost or duty on exports; and that a tax on capital invested in the products of the United States in transit from one state to another for purposes of exportation, or on money used and employed in exporting such products, is an unauthorized interference by the state with the regulation of commerce." The court, however, declined to determine those questions, but affirmed the judgment of the court below sustaining the assessment, on the ground that, if the capital assessed was, in fact, in money at the date of the assessment, a subsequent investment thereof in a subject-matter of commerce could not relieve that capital from liability to state taxation, and that the burden of proof resting on Haneman, he had failed to show that such investment of his capital had preceded its assessment for taxation. 35. The cases as to state taxation of ships establish the doctrine that while a state may tax the property of those persons, natural or corporate, who may be by residence subject to its jurisdiction, even if that property be invested in ships, yet a state may not tax ships whose owners are not personally subject to its jurisdiction, and which come within its territorial limits in the pursuit of commerce. Thus, in Hays v. The Pacific 1 Per Harlan, J., p. 468. Mail Steamship Co.,1 the question was as to the liability to taxation under the laws of California of steamships, plying between the ports of New York and San Francisco, whose home port and the place of whose registry. under the federal statutes, and the residence of whose owner was in the state of New York, and the court held them not to be so liable, the ground of decision being, as stated by Nelson, J.,2" that the state of California had no jurisdiction over these vessels for the purpose of taxation; they were there but temporarily engaged in lawful trade and commerce, with their situs at the home port, where the vessel belonged, and where the owners were liable to be taxed for the capital invested, and where the taxes had been paid." Daniel, J., dissented on the ground that the federal court had no jurisdiction. Campbell, J., concurred solely on the ground "that the vessels were in transitu, having no situs in California, nor permanent connection with its internal commerce." In Morgan v. Parham, the facts raised the question that had been decided in Hays v. The Pacific Mail Steamship Co., and, in addition thereto, the further question as to the possible effect of a temporary enrollment, under the Act of 18 February, 1793,1 of a steamship in a port other than its home port in subjecting it to state taxation in the port of temporary enrollment. The steamship, "The Frances,” having been registered in the port of New York, was temporarily enrolled in the port of Mobile, was employed in the coasting trade between Mobile and New Orleans, and while the owner, Morgan, was a citizen of, and a resident in, New York, the master of the vessel and the agents, who managed its business, were residents of Mobile. The court reiterated the doctrine |