their defense in the Boutwell case allowed them to collect tolls from all other log drives along the White River. They cut and moved timber throughout southern Ver- mont. Their drive down the West River in 1919, then to Hinsdale where a mill await- ed the logs, was held up at Brattleboro, by high water, and the boom that held them in place became a noose. Brattleboro taxed all of their $30,000 estimated value.49 The company fought the tax to the Ver- mont Supreme Court, arguing the logs were protected by the Commerce Clause of the U.S. Constitution, but the Court was not persuaded. The goods were not yet ex- ports, while they remained in the custody of the owner, wrote Justice William H. Tay- lor in 1921.
[S]uch goods do not cease to be a part of the general mass of property in the state, subject, as such, to its jurisdic- tion, and to taxation in the usual way, until they have been shipped, or en- tered with a common carrier for trans- portation to another state, or have been started upon such transportation in a continuous route or journey. We think that this must be the true rule on the subject.50
Taylor’s decision reads like a brief to the U.S. Supreme Court, and it likely served that purpose when Champlain Realty ap-
pealed to the highest court for relief. At stake was more than the $484.50 in taxes. Their prayers were answered. The decision was reversed.51 Chief Justice William H. Taft wrote the decision, and answered the question, just when were the logs in
interstate com-
merce—when those ten thousand cords were placed in the West River at Jamaica, Stratton, Londonderry, and Winhall, or at the boom at Brattleboro?52
The high court
all agreed it was the former. An interrup- tion in interstate continuity of goods var- ies according to the situation, argued Taft, including the reasons for the delay, which in this case were unique to the log driv- ing business. Brattleboro could not tax the logs. Those logs were not just in the stream of commerce, they were in interstate com- merce.
The Future Log Drive
Would you hazard an educated guess whether a log drive would pass around the boom of Vermont’s environmental conser- vation laws? Act 250 was designed to pro- tect agriculture and forestry, so it might not apply. But what about the laws on fisheries, endangered plants, erosion, and ground- water?53
Imagine a river chock full of large logs moving swiftly downstream, wiping out nests and spawning grounds, ripping flora from the shore, flooding fields when
www.vtbar.org
THE VERMONT BAR JOURNAL • FALL 2011
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Ruminations: The Law of Log Drives
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