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surplus of any one of them. That such an organization thus fortified and equipped could if it saw fit dominate the trade and control competition would seem to be a business proposition too plain to require extended argument to support it. Its resources, strength and comprehensive ownership of the means of production enable it to adopt measures to do again as it has done in the past, that is, to effectually dominate and control the steel business of the country. From the earliest decisions of this court it has been declared that it was the effective power of such organizations to control and restrain competition and the freedom of trade that Congress intended to limit and control. That the exercise of the power may be withheld, or exerted with forbearing benevolence, does not place such combinations beyond the authority of the statute which was intended to prohibit

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their formation, *and when formed to deprive them of the power unlawfully attained.

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ditions was elaborated and care*fully considered. In my judgment the principles there laid down, if followed now, would make a very material difference in the steel industry. Instead of one dominating corporation, with scattered competitors, there would be competitive conditions throughout the whole trade which would carry into effect the policy of the law.

It seems to me that if this act is to be given effect, the bill, under the findings of fact made by the court, should not be dismissed, and the cause should be remanded to the District Court, where a plan of effective and final dissolution of the corporations should be enforced by a decree framed for that purpose.

Mr. Justice PITNEY and Mr. Justice CLARKE concur in this dissent.

(251 U. S. 532)

ARKANSAS ex rel. ARBUCKLE,

Atty. Gen.

It is said that a complete monopolization of the steel business was never attained by the offending combinations. To insist upon such result would be beyond the requirements FT. SMITH LUMBER CO. v. STATE OF of the statute and in most cases practicably impossible. As we said in dealing with the Packers' combination in Swift & Co. v. United States, 196 U. S. 396, 25 Sup. Ct. 279, 49 (Submitted Jan. 5, 1920. Decided March 1, L. Ed. 518:

1920.) No. 394.

"Where acts are not sufficient in themselves to produce a result which the law seeks to prevent for instance, the monopoly-but require 1. CONSTITUTIONAL LAW 283 — TAXATION

further acts in addition to the mere forces of nature to bring that result to pass, an intent to bring it to pass is necessary in order to produce a dangerous probability that it will happen. Commonwealth v. Peachie, 177 Mass. 267, 272 [59 N. E. 55]. But when that intent and the consequent dangerous probability exist, this statute [Sherman Act] like many others and like the common law in some cases, directs itself against that dangerous probability as well as against the completed result."

47(1)-DOUBLE TAXATION NOT PROHIBITED BY FEDERAL CONSTITUTION.

Const. U. S. Amend. 14, does not forbid double taxation, short of confiscation, or proceedings unconstitutional on other grounds.

TAXA-
2. CONSTITUTIONAL LAW 229(1)
TION 195-STATE MAY TAX CORPORATIONS
ON STOCK OF OTHER CORPORATIONS THOUGH
INDIVIDUALS ARE NOT SO TAXED.

The state may, without violating Const. U. S. Amend. 14, tax its own corporations in respect to stock held by them in other domestic corporations, though individual stockholders are

exempt.

537-STATE MAY LIMIT RECOVERY OF BACK TAXES TO THOSE DUE FROM CORPORATIONS.

A state may without violating Const. U. S. Amend. 14, confine the recovery of back taxes to those due from corporations.

It is affirmed that to grant the government's request for a remand to the District Court for a decree of dissolution would not result in a change in the conditions of the 3. CONSTITUTIONAL LAW 229(1)-TAXATION steel trade. Such is not the theory of, the Sherman Act. The act was framed in the belief that attempted or accomplished monopolization, or combinations which suppress free competition were hurtful to the public interest, and that a restoration of competitive conditions would benefit the public. We have here a combination in control of one-half of the steel business of the country. If the plan were followed, as in the American Tobacco Case, of remanding the case to the District Court, a decree might be framed restoring competitive conditions as far as practicable. See United States v. American Tobacco Co. (C. C.) 191 Fed. 371. In that case the subject of reconstruction so as to restore such con

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4. COURTS 394(4) FEDERAL SUPREME COURT CANNOT REVIEW QUESTIONS UNDER STATE CONSTITUTION.

Supposed limitations on the power of the state Legislature in the Constitution of the state are not reviewable in the federal Supreme Court on writ of error to a state court.

Mr. Justice McKenna, Mr. Justice Day, Mr. Justice Van Devanter, and Mr. Justice MeReynolds, dissenting.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(40 Sup.Ct.)

In Error to the Supreme Court of the State] 6 Sup. Ct. 645, 29 L. Ed. 830; St. Louis Southof Arkansas.

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of the Court.

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western Ry. Co. v. Arkansas, 235 U. S. 350, 367, 368, 35 Sup. Ct. 99, 59 L. Ed. 265. We are of opinion that it also is within the power United States is concerned, to tax its own of a State, so far as the Constitution of the corporations in respect of the stock held by them in other domestic corporations, although unincorporated stockholders are exempt. A State may have a policy in taxation. Quong Wing v. Kirkendall, 223 U. S. 59, 63, 32 Sup. Ct. 192, 56 L. Ed. 350. If the State of Arkansas wished to discourage but not to foranother and sought to attain the result by this bid the holding of stock in one corporation by tax, or if it simply saw fit to make corporations pay for the privilege, there would be nothing in the Constitution to hinder. A discrimination between corporations and individuals with regard to a tax like this cannot be pronounced arbitrary, although we may not know the precise ground of policy that led the State to insert the distinction in the law.

[3, 4] The same is true with regard to confining the recovery of back taxes to those due from corporations. It is to be presumed, until the contrary appears, that there were reasons for more strenuous efforts to collect admitted dues from corporations than in other cases, and we cannot pronounce it an unlawful policy on the part of the State. See New York ex rel. New York Clearing House Building Co. v. Barker, 179 U. S. 279, 283, 21 Sup. Ct. 121, 45 L. Ed. 190. We have nothing to do with the supposed limitations upon the pow

This is a suit by the State of Arkansas against the plaintiff in error, a corporation of the State, to recover back taxes alleged to be due upon a proper valuation of its capital stock. The corporation owned stock in two other corporations of the State each of which paid full taxes and it contended that it was entitled to omit the value of such stock from the valuation of its own. This omission is the matter in dispute. The corporation defends on the ground that individuals are not taxed for such stock or subject to suit for back taxes, and that the taxation is double, setting up the Fourteenth Amendment. The case was heard on demurrer to the answer and agreed facts, and the statute levy-er of the State Legislature in the Constitution ing the tax was sustained by the Supreme Court of the State.

[1, 2] The objection to the taxation as double may be laid on one side. That is a matter of State law alone. The Fourteenth Amendment no more forbids double taxation than it does doubling the amount of a tax; short of confiscation or proceedings unconstitutional on other grounds. Davidson v. New Orleans, 96 U. S. 97, 106, 24 L. Ed. 616; Tennessee v. Whitworth, 117 U. S. 129, 136, 137, 40 SUP.CT.-20

of the State. Those must be taken to be disposed of by the decisions of the State Court. As this case properly comes here by writ of error, an application for a writ of certiorari that was presented as a precaution will be denied.

Judgment affirmed.

Mr. Justice MCKENNA, Mr. Justice DAY, Mr. Justice VAN DEVANTER, and Mr. Justice McREYNOLDS, dissent.

(252 U. S. 107)

MCCLOSKEY v. TOBIN, Sheriff.

Court of Criminal Appeals. The case comes here under section 237 of the Judicial Code (Comp. St. § 1214); McCloskey having claimed

(Submitted Nov. 12, 1919. Decided March 1, below, as here, that the act under which he

1920.)

No. 79..

was arrested violates rights guaranteed him by the Fourteenth Amendment.

The contention is that, since the state had

CONSTITUTIONAL LAW 87, 275(1)-PROHIB- made causes of action in tort as well as in

ITING SOLICITATION OF EMPLOYMENT TO COL-
LECT CLAIMS NOT VIOLATIVE OF RIGHT TO
LIBERTY OR EQUAL PROTECTION.

Though, under the law of Texas, causes of

action in tort as well as in contract are as

signable, Pen. Code Tex. 1911, art. 421, as amended by Laws Tex. 1917, c. 133, § 1 (Vernon's Ann. Pen. Code Supp. Tex. 1918, art. 421), forbidding the personal solicitation of employment to prosecute, defend, present, or collect any claim, is a reasonable regulation of the business of obtaining adjustment of claims and does not violate rights of liberty and property, or deny the equal protection of the laws,

in violation of the Fourteenth Amendment.

contract assignable (Railway v. Ginther, 96 Tex. 295, 72 S. W. 166), they had become an article of commerce; that the business of obtaining adjustment of claims is not inherently evil; and that therefore, while regulation was permissible, prohibition of the business violates rights of liberty and property and denies equal protection of the laws. The contention may be answered briefly. To prohibit solicitation is to regulate the business, not to prohibit it. Compare Brazee v. Michigan, 241 U. S. 340, 36 Sup. Ct. 561, 60 L. Ed. 1034, Ann. Cas. 1917C, 522. The evil against which the regulation is directed is one from which

In Error to the Court of Criminal Appeals the English law has long sought to protect the

of the State of Texas.

Habeas corpus by Frank P. McCloskey against John W. Tobin, Sheriff of Bexar County, Tex. The writ was denied by the county court and the Court of Criminal Appeals (199 S. W. 1101), and plaintiff brings error. Affirmed.

Mr. R. H. Ward, of Wichita Falls, Tex., for plaintiff in error.

Messrs. Luther Nickels, of Eastland, Tex., and B. F. Looney, of Greenville, Tex., for defendant in error.

Mr. Justice BRANDEIS delivered the opinion of the Court.

community through proceedings for barratry and champerty. Co. Litt. p. 368 (Day's Edition, 1812, vol. 2, § 701 [368, b]); 1 Hawkins, Pleas of the Crown (6th Ed.) 524; Peck v. Heurich, 167 U. S. 624, 630, 17 Sup. Ct. 927, 42 L. Ed. 302. Regulation which aims to bring the conduct of the business into harmony with ethical practice of the legal profession, to which it is necessarily related is obviously reasonable. Ford v. Munroe (Tex. Civ. App.) 144 S. W. 349. The statute is not open to the objections urged against it. Affirmed.

(252 U. S. 100)

MILWAUKEE ELECTRIC RY. & LIGHT
CO. v. STATE OF WISCONSIN ex rel.
CITY OF MILWAUKEE.

1920.)

No. 55.

Article 421 of the Penal Code of Texas defined, with much detail, the offense of barratry. In McCloskey v. San Antonio Traction Co. (Tex. Civ. App.) 192 S. W. 1116, a decree for an injunction restraining the (Argued Nov. 10, 1919. Decided March 1, plaintiff in error from pursuing the practice of fomenting and adjusting claims was reversed on the ground that this section had superseded the common law offense of barratry and that by the Code "only an attorney 1. COURTS 369(1)—SUPREME COURT MUST at law is forbidden to solicit employment in any suit himself or by an agent." Article 421 was then amended (Act March 29, 1917, c. 133 [Vernon's Ann. Pen. Code Supp. Tex. 1918, art. 421]) so as to apply to any person

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who "shall seek to ob*tain employment in any
claim, to prosecute, defend, present or collect
the same by means of personal solicitation of
such employment.
*" Thereafter Mc-
Closkey was arrested on an information
which charged him with soliciting employ-
ment to collect two claims, one for personal
injuries, the other for painting a buggy. He
applied for a writ of habeas corpus, which
was denied both by the county court and the

ITSELF DECIDE EXISTENCE OF CONTRACT
CLAIMED TO BE IMPAIRED.

In deciding whether state legislation impairs the obligation of a contract, the federal Supreme Court must determine for itself whether there is a contract and what its obligation is, as well as whether the obligation has been impaired.

2. COURTS 369(1)-SUPREME COURT WILL

NOT OVERRULE STATE DECISION CONSTRUING
CONTRACT CLAIMED TO BE IMPAIRED.

That without the decision of the state court, as to the construction of the contract said to have been impaired, the Supreme Court might have hesitated to adopt such construction, is not enough to lead it to overrule such decision upon a fairly doubtful point.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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8. CONSTITUTIONAL LAW 209-EQUAL proTECTION NOT DENIED BY INCONSISTENT DECISIONS.

A street railway company was not denied the equal protection of the laws by a decision of the state Supreme Court that its franchise imposed on it the obligation to repave a specified portion of the street, though it subsequent ly rendered a contrary decision with respect to a different street railway company, conceding the similarity of the ordinances and conditions, as the Fourteenth Amendment does not insure uniformity of judicial decisions.

Mr. Justice Pitney and Mr. Justice McReynolds dissenting.

In Error to the Supreme Court of the State of Wisconsin.

Mandamus by the State of Wisconsin, on relation of the City of Milwaukee, against the Milwaukee Electric Railway & Light Company. A judgment awarding a peremptory writ was affirmed by the Supreme Court of Wisconsin (166 Wis. 163, 164 N. W. 844), and defendant brings error.

*101

Affirmed.

*Mr. Edward S. Mack, of Milwaukee, Wis., for plaintiff in error.

Mr. Clifton Williams, of Milwaukee, Wis., for defendant in error.

Mr. Justice BRANDEIS delivered the opinion of the Court.

A petition for a writ of mandamus was brought by the city of Milwaukee in a lower *102 court of the state of Wisconsin to compel the Milwaukee Electric Railway & Light Company to pave at its own expense with asphalt upon a concrete foundation that portion of Centre street, called the railway Zone, which lies between the tracks and for one foot outside of them. The paving had been specifically ordered on November 8, 1915, by a city ordinance after the city had laid such a pavement on all of the street except the railway zone. Theretofore the street had been paved from curb to curb with macadam. The company admitted that the railway zone was in need of repaving at that time; but it insisted that under an ordinance of January 2, 1900, which constituted its franchise to lay tracks on Centre street, it was entitled to repair with macadam and could not be compelled to repave with asphalt.

The case was heard in the trial court on a demurrer to the amended return. The demurrer was sustained, and the decision was affirmed by the Supreme Court. 165 The company Wis. 230, 161 N. W. 745. having failed after remittitur to file an amended return or take further action, judgment was entered by the trial court awarding a peremptory writ of mandamus directing it to pave the railway zone as directed in the ordinance. This judgment also was affirmed by the Supreme Court. 166 Wis. 163, 164 N. W. 844. The case comes here on writ of error under section 237 of the Judicial Code (Comp. St. § 1214). The single question presented is whether the ordinance of November 8, 1915, is void either under section 10 of article 1 of the federal Constitution, as impairing contract rights of the company, or under the Fourteenth Amendment, as depriving it of property without due process of law. The ordinance of January 2, 1900, which is the contract alleged to be impaired by the later ordinance, provides as follows:

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For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

repair the roadway between the rails and for

*103

one foot on the outside of each rail *as laid, and the space between the two inside rails of its double tracks with the same material as the city shall have last used to pave or repave these spaces and the street previous to such repairs, unless the railway company and the board of public works of said city shall agree upon some other material, and said company shall then use the material agreed upon.

The company contends that when this section is read in connection with section 9, it clearly appears that the obligation to repave cannot be imposed.

[1-3] First. The Supreme Court of the state held that the language of section 2 was not distinguishable from that involved in earlier cases in which it had held that a duty to keep "in proper repair" without qualification was broad enough to require repaving and repairing with the same material with which the street was repaved.' When this court is called | upon to decide whether state legislation impairs the obligation of a contract, it must determine for itself whether there is a contract, and what its obligation is as well as whether the obligation has been impaired. Detroit United Railway v. Detroit, 242 U. S. 238, 249, 37 Sup. Ct. 87, 61 L. Ed. 268. But, as stated in Southern Wisconsin Railway v. Madison, 240 U. S. 457, 461, 36 Sup. Ct. 400, 401 (60 L. Ed. 739):

"The mere fact that without the state decision we might have hesitated is not enough to lead us to overrule that decision upon a fairly doubtful point."

Among the cases relied upon by the state court is State ex rel. Milwaukee v. Milwaukee Electric Railway & Light Co., 151 Wis. 520, 139 N. W. 396, Ann. Cas. 1914B, 123, which was cited by this court in the Madison Case, 240 U. S. 461, 36 Sup. Ct. 402 (60 L. Ed. 739), as a "persuasive decision that the obligation to keep the space ‘in proper repair' * extends to" repaving the railway zone with asphalt when the rest of the street is being repaved with that material. But the company points to the clause in the ordinance of January 2, 1900, which provides for repair "with the same material as the city shall have last used to pave or repair these spaces

*104

it reasonable for the city to require that the pavement be of asphalt upon a concrete foundation-a pavement which involved larger expense? The city alleged in its petition that the use of macadam by the railway was unreasonable, and that it is physically impossible to make a water-tight bond between the water-bound macadam and the asphalt, so as to prevent water from seeping through under the asphalt, causing it to deteriorate in warm weather and to be lifted by freezing in cold weather. The allegation was not expressly admitted by the return and must be deemed to have been covered by its general denial of all allegations not expressly admitted; but neither party took steps to have this formal issue disposed of. The case differs, therefore, in this respect from the Madison Case, where there was an express finding that repavement of the railway zone with stone would have been unsuitable when the rest of the street was of asphalt. 240 U. S. 462, 36 Sup. Ct. 400 (60 L. Ed. 739). The difference is not material. As the ordinance did not, as a matter of contract, preclude regulation in respect to paving, it was for the city to determine, in the first instance, what the public necessity and convenience demanded. Haven & Westville Railroad Co. v. New HaCompare Fair ven, 203 U. S. 379, 27 Sup. Ct. 74, 51 L. Ed. 237. We cannot say that its requirement that the railway zone be paved like the rest of the street with asphalt upon a concrete foundation was inherently arbitrary or unreasonable.

[7] Third. The company insists that the

105 ordinance of *November 8, 1915, is unreasonable and void, also, for an entirely different reason. It alleges in its return that for a long time prior to that date the earnings from its street railway system in Milwaukee were considerably under 6 per cent. of the value of the property used and useful in the business and were less than a reasonable return. It contends that this allegation was admitted by the demurrer; and that to impose upon the company the additional burden of paving with asphalt will reduce its income below a reasonable return on the investment and thus deprive it of its property in violation of the Fourteenth Amendment. The Supreme Court of the state answered the contention by saying:

"The company can at any time apply to the Railroad Commission and have the rate made reasonable."

and the streets," *and insists that its obligation is, in any event, limited to repaving with such material as the city had last used between the rails. This would put upon the city the burden of paving the whole street in case of any innovation in paving save by agreement of the company and the city. It is not a reasonable construction of the pro-ed when determining the reasonableness of an vision.

[4-6] Second. Granted the duty to repave, and to repave with material other than that last used in the space between the tracks, was

The financial condition of a public service corporation is a fact properly to be consider

order directing an unremunerative extension of facilities or forbidding their abandonment. Mississippi Railroad Commission v. Mobile & Ohio R. R. Co., 244 U. S. 388, 37 Sup. Ct.

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