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In Boyle v. Ruilroad (5+ Pa. St., 310, 311), Mr. Justice Strong, then justice of the supreme court of Pennsylvania, defined toll as follows:
“Toll is a tribute or custom paid for passage, not for carriage-always something taken for a liberty or privilege, not for a service; and such is the common understanding of the word. Nobody supposes that tolls taken by a turnpike or canal company include charges for transportation, or that they are anything more than an excise demanded and paid for the privilege of using the way." [Quoted and approved in Erie R. R. v. Pennsylvania, 158 C. S., 431.]
If there is any strict distinction between the use of the words "wharfage" and "tolls" in the California statutes, which is not made clear by any statement or authority that I find, it may be that wharfage is the charge for the temporary occupation of piers or landings, and tolls the charge for entrance upon and passage or transfer across them. Or in this case, if I am right in my deduction that the State toll” of the Southern Pacific Company's bill is part of or connected with the Harbor Commissioners' bill for wharfage, as, for instance, because it relates to the transfer over a State railroad along the water front authorized by the act of March 19, 1889, supra, then toll would be the term for the charge for the privilege of using this way to the wharves. In either aspect it is a charge for the use of terminal facilities, and the propriety or legality of the charge would be as great, if not greater, in the case of use or service from the land side as from the water-in the case of railroad companies and consignor's thereby as well as in the case of vessels and shippers thereon. This conclusion may also he rested, in part, upon the State police powers, since the function of the Harbor Commissioners embrace in many respects, under the California laws, the public health, safety, and convenience.
5. I may refer to a point regarding discrimination. It is fairly presumed that the circular of the Southern Pacific Company is authorized by law or hy agreement between the Harbor Commissioners and the company, though authority of this nature is nowhere shown. This circular indicates an exemption from the State toll for certain traffic, but as it is to be collected on all west bound freight received at San Francisco, whether local or for export, as the Government freight in this case was of this class of freight and used the terminal facilities, and as it is to be assumed that State toll is collected on freight, whether local or for export, where the State facilities are actually used, the abstract doubt referable to the exemption of freight of a certain destination and presumably not using the State terminal facilities may be ignored. At all events the discrimination being not on west-bound but on east-bound traffic, it seems that valid provisions of this circular or tariff may stand under the principle of decisions respecting laws good in part and bad in part. (Allen v. Louisiana, 103 U. S., 80; Presser v. Ninois, 116 C. S., 252; Baldinin v. Frinks, 120 C.S., 678; Field v. Clark, 113 C. S., 649.) Yet the case of People v. Roberts (cited supra) refers to section 5 of an act of the California legislature of March 17, 1880 (Stat., 1880, p. 32)so cited, but in the edition before me (Sacramento, 1880), p. 11-by which no wharfage is to be collected upon commerce within the State. The decision in question found that the exemption in favor of domestic commerce affected wharfage only and did not include dockage, so that if tolls are to be distinguished from wharfage, it would not include tolls; but if, under the view that tolls and wharfage may mean the same thing in effect, merchandise loaded on a vessel or car in San Francisco for the purpose of transportation to any port or place in California, or merchandise thus shipped at any port or place in that State and arriving at San Francisco, is exempted from the charge imposed upon the Government in this case, then perhaps the proper view is that since such charges for wharf and terminal facilities are not taxes or regulations of commerce within the prohibition of the tonnage tax or commerce clauses of the Constitution, no such discrimination against interstate commerce as is forbidden appears, and the exemption as to wharfage granted to trade within the State may be a reasonable and proper exemption in the existing commercial situation, within the competence of the State legislature.
Consequently, my opinion is that the toll imposed by the State of California on merchandise, being the property of the Government passing to or over the wharves at San Francisco, is constitutional and valid, the Government not being entitled to such service free; and this view applies also to the charge of the Southern Pacific Company, called by them a State toll, if this charge was in fact an authorized charge for the use of any part of the State's terminal system, including the transfer railroad along the water front to the wharves, as one of the facilities afforded by the State for the use of the wharves and terminals.
I must add that it has appeared to be necessary for me in this opinion to review and discuss at some length the statutes and decisions of a State with whose laws and practice I am not conversant, contrary to a recognized rule of the profession which refers the examination and construction of State law to counsel experienced therein; but under the circumstances it is proper that I should venture to construe laws which affect the interests of the United States in a case actually arising, and it is at times, as now, unavoidable that I should do so.
I return herewith all the inclosures of your communications as requested. Very respectfully,
JOHN W. GRIGGS. The SECRETARY OF WAR.
CUSTOMS LAWS-COW'S-HOL'SEHOLD EFFECTS.
The term “ household effects” as used in paragraph 504 of the act of
July 24, 1897 (30 Stat., 196), properly includes cows when kept for
household use. That term includes not only those things necessarily kept within the
house, but comprises everything that contributes to the use or con
venience of a householder or ornament of the house. The Attorney-General recommends that the ruling heretofore adopted
by the Treasury Department that cows are not“ household effects," be changed to hold that they are such effects.
DEPARTMENT OF JUSTICE,
October 22. 1900. Sır: I have the honor to acknowledge the receipt of your note of October 10, 1900, in which you call my attention to section 2 of the act of March 3, 1876 (18 Stat., 469), which directs, in substance, that no ruling or decision of the Secretary of the Treasury giving construction to any law imposing customs duties, shall be reversed or modified adversely to the United States by that or any succeeding Secretary, unless upon the opinion of the Attorney-General, recommending the same; and the facts, to which this is apropos, you state substantially thus:
In 1887 your Department decided that “cows are not embraced in the category of “household effects,' which, by law, are free of duty," and that, subsequently, the Board of United States General Appraisers has decided that horses and dogs are “household effects," so that “the question is now presented whether cows are not likewise classifiable as such effects,” and you desire my opinion whether, in view of these decisions, the former ruling of your Department should not, as to cows, be changed.
Paragraph 504 of the act of July 24, 1897 (30 Stat., 196), provides that
Books, libraries, usual and reasonable furniture, and similar household effects of persons or families from foreign countries, all the foregoing if actually used abroad by them not less than one year, and not intended for
other person or persons, nor for sale”_ are, when imported, exempt from duty, and the question is whether cows kept for household use, and under the circumstances stated in the paragraph quoted, are embraced in this classification.
The legal meaning of the terms “furniture,” “ household furniture," "household goods," "household effects," etc., as stated in various decisions and text-books, is much broader and more comprehensive than is the popular idea of the meaning of those terms. For example, in England, as early as 1765, it was held in Kelly v. Povlet (2 Ambler's Rep., 605) that
“ Household furniture has as general meaning as possible. It is incapable of definition. It is capable only of description. It comprises everything that contributes to the use or convenience of a householder or ornament of the house.
And in Cole v. Fitzgerald (1 Simon & Stuart, 189), decided in 1823, a bequest of "household furniture and other household effects," was held by the vice-chancellor to embrace "all property in the house and on the premises intended for use, consumption, or ornament," and was construed to pass to the legatee pistols, models, paintings, an organ, books. wines and liquors, and a parrot. It was added, with reference to a stack of hay on the premises: “If the haystack was only for use, it would pass; if for sale, it would not pass."
in Ilooper's Appeal (60 Pa., 220) the term " household furniture" was held to comprise "everything that contributes to the convenience of the householder, or ornament of the house."
In Irthur v. Morgan (112 U. S., 195) the Supreme Court held that an imported carriage which had been used abroad for one year by the owner, who was a householder, was exempt from duty, as a household effect." Justice Blatchford, defining the opinion of the court, said:
"A carriage is peculiarly a family or household article. It contributes, in a large degree, to the health, convenience, comfort and welfare of the householder or of the family. The statute is not limited to articles of household furniture, or to things whose place is necessarily within the four walls of a house."
And the United States Board of General Appraisers has decided that horses, carriages, harness, saddlery, and even dogs, are included under the same general term household effects," and, seemingly, with the tacit assent of every department having authority to question the correctness of such rulings, which were made under the authority of the cases above cited, and other similar cases; and which rulings appear to come within the principles of those cases.
Certainly, a cow, kept for such use, contributes quite as much to the health, comfort, convenience, and welfare of a householder's family as does either a horse, carriage, or dog; and if, as decided, these may be imported free of duty. as household effects," then a cow may be. A cow is one of the most common and most useful articles of household economy, and, if we are permitted to go outside of the house itself for articles embraced in the very general term