and bringing them back, after inspection, to be slaugh tered at the place from which they were sent-the slaughtering to take place within twenty-four hours after inspection, else the certificate of inspection becomes of no value-will be so great as to amount to an absolute prohibition upon sales, in Minnesota, of meat from animals not slaughtered within its limits. When to this is added the fact that the statute, by its necessary operation, prohibits the sale, in the State, of fresh beef, veal, mutton, lamb or pork, from animals that may have been inspected carefully and thoroughly in the State where they were slaughtered, and before they were slaughtered, no doubt can remain as to its effect upon commerce among the several States. It will not do to say-certainly no judicial tribunal can, with propriety, assume-that the people of Minnesota may not, with due regard to their health, rely upon inspections in other States of animals there slaughtered for purposes of human food. If the object of the statute had been to deny altoget her to the citizens of other States the privilege of selling, within the limits of Minnesota, for human food, any fresh beef, veal, mutton, lamb or pork, from animals slaughtered outside of that State, and to compel the people of Minnesota, wishing to buy such meats, either to purchase those taken from animals inspected and slaughtered in the State, or to incur the cost of purchasing them, when desired for their own domestic use, at points beyond the State, that object is attained by the act in question. Our duty to maintain the Constitution will not permit us to shut our eyes to these obvious and necessary results of the Minnesota statute. If this legislation does not make such discrimination against the products and business of other States in favor of the products and business of Minnesota, as interferes with and burdens commerce among the several States, it would be difficult to enact legislation that would have that result.

The principles we have announced are fully supported by the decisions of this court. In Woodruff v. Parham, 8 Wall. 123, 140, which involved the validity of an ordinance of the city of Mobile, Alabama, relating to sales at auction, Mr. Justice Miller, speaking for this court, said: "There is no attempt to discriminate injuriously against the products of other States, or the rights of their citizens, and the case is not therefore an attempt to fetter commerce among the States, or to deprive the citizens of other States of any privilege or immunity possessed by citizens of Alabama. But a law having such operation would, in our opinion, be an infringement of the provisions of the Constitution which relate to those subjects, and therefore void." So, in Hinson v. Lott, 8 Wall. 148, 151, decided at the same time, upon a writ of error from the Supreme Court of Alabama, it was said, in reference to the opinion of that court: "And it is also true, as conceded in that opinion, that Congress has the same right to regulate commerce among the States that it has to regulate commerce with foreign nations, and that whenever it exercises that power, all conflicting State laws must give way, and that if Congress had made any regulation covering the matter in question we need inquire no further. That court seems to have relieved itself of the objection by holding that the tax imposed by the State of Alabama was an exercise of the concurrent right of regulating commerce remaining with the States until some regulation on the subject had been made by Congress. But, assuming the tax to be, as we have supposed, a discriminating tax, levied exclusively upon the products of sister States; and looking to the cousequences which the exercise of this power may produce if it be once conceded, amounting, as we have seen, to a total abolition of all commercial intercourse between the States, under the cloak of the taxing power, we are not prepared to admit that a State can exercise such a power, though Congress may have failed to act on the subject in any manner whatever."

In Welton v. Missouri, 91 U. S. 275, 281, the court, speaking by Mr. Justice Field, declared to be unconstitutional a statute of Missouri, imposing a license tax upon the sale by peddlers of certain kinds of personal property "not the growth, produce or manufacture" of that State, but which did not impose a like tax upon similar articles grown, produced or manufactured in Missouri. After observing that if the tax there in question could be imposed at all, the power of the State could not be controlled, however unreasonable and oppressive its action, the court said: "Imposts operating as an absolute exclusion of the goods would be possible, and all the evils of discriminating State legislation, favorable to the interests of one State, and injurious to the interests of other States and countries, which existed previous to the adoption of the Constitution, might follow, and the experience of the last fifteen years shows would follow, from the action of some of the States."

In Railroad Co. v. Husen, 95 U. S. 465, the court examined a statute of Missouri prohibiting, under penalties, any Texas, Mexican or Indian cattle from being driven or otherwise conveyed into, or remaining in, any county of the State, between the first day of March and the first day of November in each year, by any person or persons whatsoever. While admitting, in the broadest terms, the power of a State to pass sanitary laws, and laws for the protection of life, liberty, health or property within its borders, to prevent convicts, or persons and animals suffering under contagious or in fectious diseases, from entering the State, and, for purposes of protection, to establishquarantine and inspections, the court, Mr. Justice Strong delivering its opin ion, said that a State may not, "under the cover of exerting its police powers, substantially prohibit or burden either foreign or inter-State commerce." The general ground upon which it held the Missouri statute to be unconstitutional was, that its effect was "to obstruct inter-State commerce, and to discriminate between the property of citizens of one State and that of citizens of other States."

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In Guy v. Baltimore, 100 U. S. 434, 443, the court adjudged to be void an ordinance of the city of Baltimore, exacting from vessels using the public wharves of that city, and laden with the products of other States, higher rates of wharfage than from vessels using the same wharves and laden with the products of Maryland. 'Such exactions," the court said, "in the name of wharfage, must be regarded as taxation upon inter-State commerce. Municipal corporations, owning wharves upon the public navigable waters of the United States, and quasi public corporations transporting the products of the country, cannot be permitted by discriminations of that character to impede commercial intercourse and traffic among the several States and with foreign nations."

The latest case in this court upon the subject of interState commerce, as affected by local enactments discriminating against the products and citizens of other States, is Walling v. Michigan, 116 U. S. 445, 446. We there held to be unconstitutional a statute of Michigan, imposing a license tax upon persons not residing or having their principal place of business in that State, but whose business was that of selling or soliciting the sale of intoxicating liquors to be shipped into the State from places without, a similar tax not being imposed in respect to the sale and soliciting for sale of liquors manufactured in Michigan. Mr. Justice Bradley, delivering the opinion of the court, said: "A discrimin ating tax imposed by a State operating to the disadvantage of the products of other States when introduced into the first-mentioned State, is, in effect, a regulation in restraint of commerce among the States, and as such is a usurpation of the power conferred by the Constitution upon the Congress of the United States."

EVIDENCE – OPINION.

NEW YORK COURT OF APPEALS, SECOND DIVISION, FEB. 25, 1890.

VAN WYCKLYN V. CITY OF BROOKLYN.*

A city's water supply was derived by pumping from driven wells from thirty-five to sixty feet deep, and located between two hundred and seven hundred feet from a stream which turned plaintiff's mill. In a suit for diverting the water therefrom plaintiff showed that the stream was largely supplied by surface drainage, that it never dried up before the pumping began, and that it dried up at the nearest point shortly thereafter. There was no evidence as to the nature of the soil between the bed thereof and the bottoms of the wells, nor that the stream was supplied at all from under-ground sources. An expert, who had constructed the wells, was asked by the defendant whether, in his opinion, it was possible to draw water from the stream through the wells, Held, there was no foundation for the question, and it was properly excluded.

Almet F. Jenks, for respondent.

BROWN, J. The plaintiff brought this action to recover damages which he claimed to have sustained from the diversion by the defendant of the waters of a stream called "Spring creek," and there was a verdict in his favor at the Circuit. The judgment entered on such verdict was reversed by the General Term, and the order of reversal states that the facts were not before that court for review, and its decision was upon the law only. The legal questions arising in this case are therefore properly before this court. Pharis v. Gere, 112 N. Y. 408.

The plaintiff was the owner of a grist-mill situated near the junction of Spring creek with Jamaica bay, and he derived the power to drive the machinery of his mill from the flow of the tide of the bay and the flow of the waters of the creek. The defendant, pursuant to a statute of the State, had acquired title to a strip of land upon the banks of the creek, about two miles above the plaintiff's mill, and upon such strip of ground * Reversing 41 Hun, 418.

had constructed one hundred driven wells, from which it pumped water for the supply of the city. The nearest well to the creek was distant therefrom about two hundred feet, and the others were located at varying distances, up to about six hundred or seven hundred feet therefrom. It was the claim of the plaintiff that these wells drained the water from the creek, and arrested the same in running to the mill, thus diverting the living stream, and impairing and injuring his water-power; and there appears to have been a concession at the trial, and the same is made in this court, that if, in sinking the wells on its own land, the city did no more than intercept the percolation of underground currents, and thereby prevented such water from running through the soil and reaching the stream, the action would not lie; and such is the law applicable to the case. Chasemore v. Richards, 7 H. L. Cas. 349; Village of Delhi v. Youmans, 45 N. Y. 362, and cases cited.

The question in issue therefore was, did the defendant, by their wells and machinery, draw the water out of the creek after it became an open running 'stream on the surface of the earth? At the close of the plaintiff's case there was a motion by the defendant to dismiss the complaint "upon the ground that the evidence disclosed no liability on the part of the city," which motion was denied; the court holding that the evidence presented a question of fact for the consid eration of the jury. We do not understand the learned counsel for the city to claim that there was any error in the denial of this motion, and it was not made a ground of reversal at the General Term. It is sufficient for us to say therefore that we think the evidence was of a character to permit the conclusion drawn by the jury, and it would have been error for the court to have withdrawn the case from their consideration. The jury having determined the facts in favor of the plaintiff's contention, the judgment must stand, unless there were errors committed in the conduct of the trial.

The defendant called as a witness one William D. Andrews, who testified that his business was making and drilling wells, and supplying water for cities and villages, and that he had constructed the wells in question. He described the manner of their construction, and stated that they drew water from a depth below the surface ranging from thirty-five to sixty feet, and that the depth of the wells varied, for the purpose of "getting the benefit of the water in different waterbearing strata." He was then asked the following question: "Was it possible for you to take in those pipes any water out of Spring creek?" This was objected to as 'opinionative," and excluded, to which ruling of the court the defendant excepted. The judgment was reversed by the General Term, on,the ground that this question should have been admitted, and the propriety of the ruling of the trial court in its exclusion is the main question presented on this appeal.

While we recognize fully the difficulty at times of deciding whether the case presented is one in which expert or opinion evidence is admissible, the majority of this court is of the opinion that the ruling of the trial judge in this case was correct. Within the general rule that witnesses who are skilled in science and art, and those who from experience and special study have peculiar knowledge upon the subject of inquiry which jurors have not, may testify, not only to facts, but may also give their opinions as experts, the decis ions of the courts have given a wide range to expert evidence. No rule however can be made so precise as to include all cases, and each question, as it arises, must be determined by the application of general priuciples to the particular inquiry involved in the case before the court. While it is no longer a valid objec tion to the expression of an opinion by a witness that it is upon the precise question which the jury are to

determine (Transportation Line v. Hope, 95 U. S. 297; Bellinger v. Railroad Co., 23 N. Y. 42; Cornish v. Insurance Co., 74 id. 296), evidence of that character is only allowed when, from the nature of the case, the facts cannot be stated or described to the jury in such a manner as to enable them to form an accurate judgment thereon, and no better evidence than such opinions is attainable. Ferguson v. Hubbell, 97 [N. Y. 507; Schwander v. Birge, 46 Hun, 66; 1 Greenl. Ev., § 440, and notes. Familiar examples of the admission of evidence of this character are cases involving questions of medical practice and skill, and cases involving genuineness of handwriting. Within the same principle, the question whether a vessel was unseaworthy was held admissible, because it involved the result of an examination which could not be fully communicated to a jury. Baird v. Daly, 68 N. Y. 547. It was also held competent to ask a pilot "whether it would be safe for a tug-boat on Chesapeake bay, or any other wide water, to tug three boats abreast, with a high wind" (Transportation Line v. Hope, 95 U. S. 297); to ask of an engineer, familiar with the locality and structure, whether an embankment and bridges were skillfully constructed with reference to the creek (Bellinger v. Railroad Co., 23 N. Y. 42), and evidence of like character has been admitted on the question of negligence in mooring a vessel (Moore v. Westervelt, 9 Bosw. 558); on the necessity of jettison (Price v. Hartshorn, 44 N. Y. 94), and on questions involving nautical skill. Walsh v. Insurance Co., 32 N. Y. 427. Opinions were held admissible in the cases cited, for the reason that the controlling issue in the case involved ques tions of skill and experience, which the witness' practical knowledge enabled him to speak upon, and because the facts which impressed the mind of the witness could not be placed before the jury, and no better evidence was available.

The rule is well stated by Justice Bradley in Schwander v. Birge, supra, as follows: "The governing rule deduced from the cases permitting the opinions of wit nesses is that the subject must be one of science or skill, or one of which observation and experience have given the opportunity and means of knowledge which exist in reasons rather than descriptive facts, and therefore cannot be intelligently communicated to others, not familiar with the subject, so as to possess them with a full understanding of it." To the same effect it was said by Judge Earl in Ferguson v. Hubbell, supra: 'Opinions are also allowed where * * the facts cannot be adequately placed before the jury sojas to impress their minds as they impress the minds of a competent skilled observer.

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generally the character of the surrounding soil, and that, as the pumping continued and exhausted the water near the wells, the water disappeared further up the stream, until its flow was substantially destroyed. The evidence of Andrews, given prior to being asked the question under consideration, added no new facts to the case. The question put to him, in substance, called for his opinion upon the facts proven. In other words, he was asked to draw inferences and form conclusions which belonged exclusively to the province of the jury.

Whether or not the disappearance of the creek (was caused by the pumping at the wells, or whether the waters of the creek could filter through the ground, and reach the bottom of the wells, depended upon the operation of natural laws; and if the witness had an opinion upon that subject it must have had its foundation in facts, such as the sources of the stream, the character of the soil between the bed of the creek and the bottom of the wells, the velocity of the stream and its grade, the course of the current, etc. These and any other facts bearing upon the question in issue, if deemed competent to overcome the effects of plaintiff's testimony, and account for the disappearance of the stream, might have been shown; and it is not at all unlikely, that had facts of the character referred to been proven, tending to indicate other adequate causes for the disappearance of the creek, questions would have been developed upon which the opinion of an expert witness might have been admissible. But without such proof it is not apparent from the record that the case presented any question calling for the opinion of an expert, and unless such a case was presented on the evidence, the question was properly excluded. Guiterman v. Steamship Co., 83 N. Y. 358; People v. Barber, 115 id. 475-479.

The form of the question in this connection must be observed. It was not an inquiry into the causes of the disappearance of the stream, and called for no fact bearing upon that question which the jury could have considered. No opinion even upon the cause of the disappearance of the water was asked, but simply whether it was possible for the pumps to draw the water from the creek. This admitted of a simple negative answer, which could have thrown no light on the case, and afforded no assistance to the jury in their deliberations, and might have had no foundation, except deductions and inferences from the evidence already in the case. The purpose of expert evidence is to aid the jury in their deliberation on the case, and in their review of the evidence; and to be competent for that purpose it must, where the questions involved are not ones of science or art, be based upon evidence in the case, and confined in cases of this character to the causes of the injury complained of. In Moyer v. Railroad Co., 98 N. Y. 645, the question held to be competent was: "Are there any adequate causes in your opinion for this?" referring to the injury complained of. The court said: "The witness, an expert, * might very well be asked, in presence of a given effect, of what causes it either was or might be the resultant. * * * It assumed an hypothesis, the truth or falsity of which was left open to the jury, and then asked, not what caused the injury, but what were all the adequate causes which might have been its origin, leaving the jury to determine among them." Here the injury was of a very different character. It left nothing to the jury, and it indicated no cause for the injury. Assuming a negative answer to the question, to obtain which was its object, the defendant proposed to say to the jury: "It is impossible for our pipes to draw the water out of the creek, notwithstanding all that plaintiff has proven." But as this was a mere naked opinion upon the precise question which the jury were to decide, it clearly was inadmissible.

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