to the facts found. Here the wood was being
transported by the plaintiff, its owner, and
was subject at all times to its complete con-
trol, so the rule laid down when the trans-
portation is by a common carrier does not
apply. It is not a case where goods from
outside the state are detained in transit with-
in the state. Such goods are already under
the protection of the Constitution when they
cross the border and are subject to a dif-
ferent rule. Coe v. Errol, supra. Applied
to products of the state intended for ex-
portation, the precise question is when they
acquire the impress of interstate commerce.
[2] It is well to note at the outset that,
this being an action to recover money paid
as a tax, the burden is upon the plaintiff
to show that the tax was illegally assessed,
or, to be specific, to establish the interstate
character of the transportation. Sullivan v.
Ashfield, 227 Mass. 24, 116 N. E. 565; For-
syth v. County Com'rs (Mass.) 123 N. E. 699;
Jackson v. Town of Union, 82 Conn. 266,
73 Atl. 773; Warwick & Coventry Water
Co. v. Carr, 24 R. I. 226, 52 Atl. 1030; Port-
land, etc., R. Co. v. City of Saco, 60 Me. 196;
Savings & Loan Co. v. City of San Francisco,
146 Cal. 673, 80 Pac. 1086; Iron Co. v. Town-
ship, 186 Mich. 626, 153 N. W. 14; Heuston
V. King County, 90 Wash. 200, 155 Pac. 773;
Hardware Co. v. La Plata County, 52 Colo.
260, 121 Pac. 157; Davis v. Otoe County, 55
Neb. 677, 76 N. W. 465. See Babcock v.
Granville, 44 Vt. 325; City of St. Louis v.
Niehaus, 236 Mo. 8, 139 S. W. 450.
[3] We have no case in point. The de-
fendant relies upon Guilford v. Smith, 30
Vt. 49, but the decision in that case sheds
no light on the question at issue here. That
was an action in replevin and involved the
right of stoppage in transitu where flour
shipped by the vendor from a point in Can-

Hinsdale boom. For this reason and no other the plaintiff held its wood in the boom at Brattleboro. The Connecticut was not suitable for driving pulpwood from the time the drive began until April 3d, on which date the plaintiff's servants cut the boom at the mouth of West river so that the wood could pass into the Connecticut. Prior to April 3d only about 4,000 cords of the wood had reached and been held at the West river boom. The balance arriving later went through to Hinsdale without stopping. On March 28, 1919, when there was by estimation about 4,000 cords of wood in the West river boom, it broke, allowing some of the wood to escape into the Connecticut and onto the Retreat meadow in Brattleboro near the mouth of West river. The boom was repaired on March 29, 1919. At this time the part of West river where the wood laid back of the boom, called the holding ground, was frozen, so the wood, if not boomed, could not have continued on its journey into the Connecticut at that time. On April 1, 1919, about 1,500 cords of the pulpwood was being held in plaintiff's boom at the mouth of West river. Some wood that was lodged on an island and the wood on the Retreat meadow remained after the boom was cut. The latter remained on the meadow about two weeks and had to be taken out by a process called "booming" or "warping." None of this 1,500 cords was cut in the town of Brattleboro. All of it had been carried down West river and was destined for the plaintiff's mill at Hinsdale, N. H., by way of the Connecticut. The drive of pulpwood down West river to the Connecticut and thence to the rossing plant at Hinsdale was in continuous operation from March 25th until it was completed on May 9th, and was conducted properly to make an uninterrupted passage, so far as possible. [1] No question is made but that the pulp-ada, consigned to parties in Ogdensburg, N. wood on account of which the plaintiff was taxed, viz. the 1,500 cords of wood held in the boom on April 1, 1919, was taxable in the defendant town unless within the protection afforded by the commerce clause of the federal Constitution. The parties do not disagree as to the general rule governing this class of cases. Products of a state intended for exportation to another state do not cease to be a part of the general mass of property in the state, subject as such to its jurisdiction and to taxation in the usual way, until they have been shipped or entered with As the case presents a federal question, a common carrier for transportation to an- it is controlled by principles to be found in other state, or have been started upon such the decisions of the Supreme Court of the transportation in a continuous route or jour- United States. There are three distinct ney, or, as otherwise stated, until they have classes of decisions fixing the limits of state entered upon their final journey out of the and federal authority when the question of state. Coe v. Errol, 116 U. S. 517, 525, interstate transportation is involved. In one 6 Sup. Ct. 475, 29 L. Ed. 715, 719; Diamond class the question is when the article ceases Match Co. v. Village of Ontonagon, 188 U. S. to be the subject of interstate commerce be82, 23 Sup. Ct. 266, 47 L. Ed. 394. As fre cause of the termination of the transportaquently happens, the difficulty in this case tion. In another class are cases dealing with arises in the application of the settled rule the status of property which has become the

Y., to be forwarded to the vendee in Burlington, Vt., was held in storage at Ogdensburg awaiting forwarding orders. It was held in the circumstances, which we need not detail, that the vendee had acquired constructive possession of the flour, and that the transit was at an end, as the flour had reached a place where it awaited a fresh direction to be given to it by the vendee, and so was not being held to transport, but to keep, when the vendor attempted to exercise the right of stoppage.

(113 A.)

ed like other property within the state. After observing that the question does not present the predicament of goods in course of transportation through a state, although detained for a time within the state by low water or other causes of delay, as was the case of the logs cut in the state of Maine on which the tax was abated, the general proposition is laid down that the logs in question would be under the protection of the Constitution when actually started in the course of transportation to another state, or delivered to a carrier for such transportation. We quote somewhat extensively from the argument that follows for the light which it sheds upon the application of the rule to the facts of the particular case:

subject of interstate commerce, but is de- intended for exportation to another state tained in transit for one cause or another and partially prepared for that purpose by before reaching its final destination. Then being deposited at a place or port of shipthere is the class where, as here, the questionment within the state, were liable to be taxis when the state loses jurisdiction over its own products for the reason that they have passed under federal authority. Counsel cite cases of the different classes indiscriminately, without taking note of distinctions clearly recognized in some of the cases, though not always definitely pointed out. The basic principle of all the cases is the same. Property actually in transit from one state to another is exempt from local taxation as an unlawful interference with interstate commerce. Moreover, it is a principle common to the several classes of cases that there may be an interior movement of property which does not constitute interstate commerce, though it come from or be destined to another state. But when interstate transportation begins, when it is suspended so that the commodity becomes subject to state laws, or when it ends, are questions requiring the application of different principles. It is manifest that we are concerned only with the question when interstate transportation begins. As the principles vary with the questions under discussion, we shall avoid unnecessary confusion by giving particular attention to the views of the court in that class of cases.

[4] The leading case is Coe v. Errol, supra, in error to the Supreme Court of the state of New Hampshire. It was heard below on plaintiff's petition for the abatement of taxes assessed on certain logs owned by the plaintiff and others lying in the town of Errol on the date of the annual appraisal for taxation, ready to be floated down the Androscoggin river to Lewiston, Me., to be manufactured and sold. Part of the logs had been cut in the state of Maine and were on their way of being floated to Lewiston, but were detained in the town of Errol by low water. Part of the logs had been drawn the winter before from a neighboring town in New Hampshire and placed in Clear stream and on its banks in the town of Errol to be floated down the Androscoggin river. The selectmen of Errol appraised all of the logs for taxation and assessed the usual taxes thereon. Plaintiff claimed that none of the logs were subject to taxation in Errol for the reason that they were in transit to market from one state to another. The Supreme Court of New Hampshire abated the portion of the tax assessed upon the logs cut in Maine and sustained the assessment upon those cut in New Hampshire. The plaintiff carried the case to the Supreme Court of the United States on a writ of error to review so much of the decision as was adverse, on which the judgment below was affirmed. Mr. Justice Bradley, speaking for the court, said that the question for consideration was

"There must be a point of time when they [goods intended for transportation out of the state] cease to be governed exclusively by the domestic law and begin to be governed and regulation, and that moment seems to us to be protected by the national law of commercial a legitimate one for this purpose, in which they commence their final movement for transportation from the state of their origin to that of their destination. When the products of the farm or the forest are collected and brought in from the surrounding country to a town or station serving as an entrepôt for that parrailroad, such products are not yet exports, ticular region, whether on a river or a line of nor are they in process of exportation, nor is exportation begun until they are committed to the common carrier for transportation out of the state to the state of their destination, or have started on their ultimate passage to that state. Until then it is reasonable to regard them as not only within the state of their origin, but as a part of the general mass of property of that state, subject to its jurisdiction, and liable to taxation there, if not taxed by reason of their being intended for exportation, but taxed without any discrimination, in the usual way and manner in which such property is taxed in the state. * If such goods are not taxed as exports, nor by reason of their exportation, or intended exportation, but are taxed as part of the general mass of property in the state, at the regular period of assessment for such property and in the usual manner, they not being in the course of transportation at the time, is there any valid reason why they should not be taxed? Though intended for exportation, they may never be exported; the owner has a perfect right to change his mind; and until actually put in motion for some place out of the state, or committed to the custody of a carrier for transportation to such place, why may they not be regarded as still remaining a part of the genin an exceptional time or manner, because of eral mass of property in the state? If assessed their anticipated departure, they might well be considered as taxed by reason of their exportation or intended exportation; but, if as

*

(113 A.)

be confused by circumstances; and the confident assignment of the property as subject or not subject to taxation is not easily made."

"Neither the fact that the grain had come from outside the state nor the intention of the owner to send it to another state and there to dispose of it can be deemed controlling when the taxing power of the state of Illinois is concerned. The property was held by the plaintiff in error in Chicago for his own purposes and with full power of disposition. It was not being actually transported, and it was not held by carriers for transportation. The plaintiff in error had withdrawn it from the not alter the fact that it had ceased to be carrier. The purpose of the withdrawal did transported and had been placed in his hands. He had the privilege of continuing the trans

this he might avail himself or not as he chose. He might sell the grain in Illinois or forward it as he saw fit. It was in his possession with the control of absolute ownership. He intended to forward the grain after it had been inspected, graded, etc., but this intention, while the grain remained in his keeping and before it had been actually committed to the carriers for transportation, did not make it immune from local taxation. He had established a local facility in Chicago for his own benefit, and while, through its employment, the grain was there at rest, there was no reason why it should not be included with his other property which was made in the usual way without diswithin the state in an assessment for taxation crimination. [Citing cases.]

"The question, it should be observed, is not with respect to the * power of Congress to regulate interstate commerce, but whether a particular exercise of state power in view of its nature and operation must be deemed to be in conflict with this paramount authority.

Then follows a review of the cases, including Kelley v. Rhoads, 188 U. S. 1, 23 Sup. Ct. 259, 47 L. Ed. 359; Brown v. Houston, 114 U. S. 622, 5 Sup. Ct. 1091, 29 L. Ed. 257; Pittsburg, etc., Coal Co. v. Bates, 156 U. S. 577, 15 Sup. Ct. 415, 39 L. Ed. 538. Their substance, as defining the taxing power of a state, is declared to be that while the property is at rest for an indefinite time awaiting transportation it is subject to taxation; but, if it be actually in transit to another state, it be-portation under the shipping contract, but of comes the subject of interstate commerce and is exempt from local assessment. No other decision of the Supreme Court of the United States involving the right of a state to tax products thereof destined for export is called to our attention. Bacon v. Illinois, 227 U. S. 504, 33 Sup. Ct. 299, 57 L. Ed. 615, is referred to. In that case grain shipped from Southern and Western States under contracts for transportation to Eastern points with the privilege of removing it from the cars at Chicago for the purpose of inspecting, weighing, cleaning, mixing, etc., was purchased by the plaintiff while in transit. Upon its arrival at Chicago plaintiff availed himself of the privilege and removed the grain to his private elevator, solely for the purpose specified. The grain remained in the elevator only for such time as was reasonably necessary for the purposes mentioned, when it was turned over to the railroad companies and forwarded by them to its original destination in accordance with the contracts of transportation. The grain was taxed to the plaintiff while at rest in the elevator. The Supreme Court of Illinois sustained the tax on the ground that the grain was not exempt from local taxation as being in transit in interstate commerce. Mr. Justice Hughes delivered the opinion of the court affirming the judgment below. While the question for decision was dissimilar, in that the case involved the question when property being transported through the state was subject to taxation, still the opinion announces principles that are applicable to the case at bar. It is said that the denial of the power to tax articles actually moving in interstate transportation rests upon the supremacy of the federal power to regulate interstate commerce. Its postulate is the necessary freedom of that commerce from the burden of such local exactions as are inconsistent with the control and protection of that | distributed according to the orders. The lopower. The question is determined by the nature and effect of the particular state action with respect to a subject which has come under the sway of a paramount authority. The question was said to be whether the grain there involved was moving in interstate commerce so that the imposition of the local tax may be said to be repugnant to the

"The property was held within the state for purposes deemed by the owner to be beneficial; it was not in actual transportation; and there was nothing inconsistent with federal authority in compelling the plaintiff in error to bear with respect to it, in common with other property in the state, his share of the expenses of local government."

General Oil Co. v. Crain, 209 U. S. 211, 28 Sup. Ct. 475, 52 L. Ed. 754, involved the same principle. Oil which had been brought from Pennsylvania to Memphis, Tenn., a distributing point, was held in tanks, one of which was kept for oil for which orders had been received from Southern points outside the state prior to the shipment from Pennsylvania, and which had been shipped especially to fill such orders. The tank was marked "Oil already sold in Arkansas, Louisiana and Mississippi." The oil remained in the tank only a few days-long enough to be properly

cal tax upon the oil was sustained. Susquehanna Coal Co. v. South Amboy, 228 U. S. 665, 33 Sup. Ct. 712, 57 L. Ed. 1015, is another case involving the cessation of interstate commerce. Coal was shipped by its owner, the plaintiff in error, from points in Pennsylvania to its own order at a New Jersey tidewater port destined to points outside the lat

for its continuous transportation, it was | journey out of the state. The case was made dumped into a storage yard to be later transferred to boats as occasion required. It was held subject to local taxation while awaiting reshipment. The court said: