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mestic corporations, which elected to have voked on the day when copy of the petition their places of business and works outside for the writ of error was served on opof the state, and all foreign corporations posing counsel, and more than two months coming into the state, on the same footing before the writ was issued. in respect of the service of process, and Appeal-distinction between appeal and writ the law operated on all these alike.

of error.

2. Appeal, and not writ of error, is the proper method of obtaining a review in the Supreme Court of the United States of a final order of the supreme court of the Phil

Such a classification was reasonable, and not open to constitutional objection. Orient Ins. Co. v. Daggs, 172 U. S. 557, 563, 43 L. ed. 552, 554, 19 Sup. Ct. Rep. 281; Waters-ippine Islands in a habeas corpus case, unPierce Oil Co. v. Texas, 177 U. S. 43, 44 L. ed. 663, 20 Sup. Ct. Rep. 518; Central Loan & T. Co. v. Campbell Commission Co. 173 U. S. 84, 43 L. ed. 623, 19 Sup. Ct. Rep. 346; National Council, J. O. U. A. M. v. State National Council, J. O. U. A. M. v. State Council of Virginia, 203 U. S. 151, 51 L. ed. 132, 27 Sup. Ct. Rep. 46; Northwestern Nat. L. Ins. Co. v. Riggs, 203 U. S. 243, 51 L. ed. 168, 27 Sup. Ct. Rep. 126; Brannon, 14th Amendment, chap. 16.

der the act of July 1, 1902, (32 Stat. at L chap. 1369, pp. 691, 695, U. S. Comp. Stat. Supp. 1905, p. 154), § 10, providing that judgments and decrees of the latter court can only be reviewed "in the same manner, under the same regulations, and by the same procedure, as far as applicable, as the final judgments and decrees of the circuit courts."

I

[No. 214.]

ber 3, 1906.

N ERROR to the Supreme Court of the Philippine Islands to review a denial of an application for a writ of habeas corpus. Dismissed.

It is true that the prior law left it to the corporation to appoint an attorney to Argued October 9, 10, 1906. Decided Decemrepresent it, and that the act of February, 1905, changed this so as to make the auditor such attorney, but this, at the most, was no more than an amendment as to the appointment of an agent, and when the St. Mary's Company accepted its charter it did so subject to the right of amendment. And we agree with the state court that the requirement of the payment of $10 to the auditor for the use of the state does not amount to a taking of property without due process, or an unjust discrimination. Charlotte, C. & A. R. Co. v. Gibbes, 142 U. S. 386, 35 L. ed. 1051, 12 Sup. Ct. Rep. 255; New York ex rel. New York Electric Lines Co. v. Squire, 145 U. S. 175, 36 L. ed. 666, 12 Sup. Ct. Rep. 880. If the act is valid, that is.

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The facts are stated in the opinion. Messrs. Frederic R. Coudert and Howard Thayer Kingsbury for plaintiffs in error. Solicitor General Hoyt for defendants in

error.

Mr. Chief Justice Fuller delivered the opinion of the court:

Application for the writ of habeas corpus was made to the supreme court of the Philippine Islands, August 2, 1905, on behalf of one Barcelon, seeking to be discharged from alleged illegal detention in the province of Batangas. An order to show cause was granted, returnable August 4, to which return was made, the cause heard, and the ap plication denied on the ground that the writ of habeas corpus had been suspended, and that the action or the Philippine authorities in that regard was not open to judicial review.

Petition for the allowance of a writ of error from this court, dated October 19, and service of copy thereof acknowledged by respondents the same day, was filed January 3, 1906, and the writ of error thereupon allowed and issued on that day.

The second clause of § 9 of article 1 of the Constitution of the United States provides: "The privilege of the writ of habeas corpus shall not be suspended, unless when, in cases of rebellion or invasion, the public safety may require it."

The 7th paragraph of § 5 of the act of Congress of July 1, 1902 (32 Stat. at L. chap. 1369, pp. 691, 692), reads: "That the

privilege of the writ of habeas corpus shall not be suspended, unless when, in cases of rebellion, insurrection, or invasion, the public safety may require it; in either of which events the same may be suspended by the President, or by the governor, with the approval of the Philippine Commission, whereever, during such period, the necessity for such suspension shall exist."

The record discloses that on January 31, 1905, the Philippine Commission adopted the following resolution:

conduct preliminary investigations before justices of the peace and other judicial officers:

"In the interest of the public safety, it is hereby ordered that the writ of habeas corpus is from this date suspended in the provinces of Cavite and Batangas."

But we must take notice of the fact that on October 19, 1905, the civil governor issued a proclamation revoking that of January 31, 1905, as follows:

"Whereas the ladrone bands which, up to "Whereas certain organized bands of la-a recent date, infested the provinces of Cadrones exist in the provinces of Cavite and vite and Batangas, have been practically deBatangas, who are levying forced contribu-stroyed, and the members thereof killed or tions upon the people, who frequently re- captured or have surrendered, so that the quire them, under compulsion, to join their necessity for the continuance of the suspenbands, and who kill or maim in the most sion of the writ of habeas corpus in the barbarous manner those who fail to respond aforesaid provinces, which was made necesto their unlawful demands, and are there- sary by the conditions therein prevailing on fore terrifying the law-abiding and inoffen- the 31st day of January last, no longer exsive people of those provinces; and ists:

"Whereas these bands have, in several instances, attacked police and constabulary detachments, and are in open insurrection against the constituted authorities; and

"Whereas it is believed that these bands have numerous agents and confederates living within the municipalities of the said provinces; and

"Whereas, because of the foregoing conditions, there exists a state of insecurity and terrorism among the people which makes it impossible in the ordinary way to conduct preliminary investigations before justices of the peace and other judicial officers:

"Now, therefore, be it resolved, "That, the public safety requiring it, the civil governor is hereby authorized and requested to suspend the writ of habeas corpus in the provinces of Cavite and Batangas."

Whereupon, on the same day, the civil governor issued the following proclamation: "Whereas certain organized bands of ladrones exist in the provinces of Cavite and Batangas, who are levying forced contributions upon the people, who frequently require them, under compulsion, to join their bands, and who kill or maim in the most barbarous manner those who fail to respond to their unlawful demands, and are therefore terrifying the law-abiding and inoffensive people of those provinces; and

"Whereas these bands have, in several instances, attacked police and constabulary detachments, and are in open insurrection against the constituted authorities, and it is believed that the said bands have numerous agents and confederates living within the municipalities of the said provinces; and "Whereas, because of the foregoing conditions, there exists a state of insecurity and terrorism among the people which makes it impossible in the ordinary way to

"Now, therefore, I, Luke E. Wright, governor general of the Philippine Islands, being duly authorized and empowered thereto by the Philippine Commission, do hereby proclaim the revocation of the suspension of the writ of habeas corpus in the provinces of Cavite and Batangas which was made by me on the 31st day of January last."

This proclamation wiped out the basis of the decision sought to be reviewed on the day when the copy of the petition for writ of error was served on opposing counsel, and more than two months before the writ of error was issued. The question ruled by the court below, and solely argued before us, became, in effect, a moot question, not calling for determination here. Mills v. Green, 159 U. S. 651, 40 L. ed. 293, 16 Sup. Ct. Rep.

132.

But the disposition of this writ of error must be rested on another ground.

The proceeding is in habeas corpus, and is a civil, and not a criminal, proceeding. Cross v. Burke, 146 U. S. 82, 88, 36 L. ed. 896, 898, 13 Sup. Ct. Rep. 22. Section 10 of the Philippine act of July 1, 1902, (32 Stat. at L. chap. 1369, pp. 691, 695, U. S. Comp. Stat. Supp. 1905, p. 154), provides:

"That the Supreme Court of the United States shall have jurisdiction to review, revise, reverse, modify, or affirm the final judgments and decrees of the supreme court of the Philippine Islands in all actions, cases, causes, and proceedings now pending therein or hereafter determined thereby in which the Constitution or any statute, treaty, title, right, or privilege of the United States is involved, or in causes in which the value in controversy exceeds twenty-five thousand dollars, or in which the title or possession of real estate exceeding in value the sum of twenty-five thousand dollars, to be ascer

tained by the oath of either party or of | ing that it was no purpose of the act of other competent witnesses, is involved or 1891 to change the forms of remedies therebrought in question; and such final judg-tofore pursued. Re Lennon, 150 U. S. 393, 37 ments or decrees may and can be reviewed, L. ed. 1120, 14 Sup. Ct. Rep. 123; Nishimura revised, reversed, modified, or affirmed by Ekiu v. United States, 142 U. S. 651, 35 L. said Supreme Court of the United States on ed. 1146, 12 Sup. Ct. Rep. 336; Gonzales v. appeal or writ of error by the party ag- Cunningham, 164 U. S. 612, 41 L. ed. 572, grieved, in the same manner, under the same 17 Sup. Ct. Rep. 182." regulations, and by the same procedure, as far as applicable, as the final judgments and decrees of the circuit courts of the United States."

Final orders of the circuit or district

Writ of error dismissed.

V.

STATE OF NEW JERSEY, Appt., WILLIAM F. ANDERSON, Trustee of Cosmopolitan Power Company.

tax.

courts of the United States in habeas corpus can only be reviewed by appeal, and not by writ of error. Re Morrissey (Morrissey v. Perry) 137 U. S. 157, 158, 34 L. ed. 644, 645, Bankruptcy-preferences-franchise 11 Sup. Ct. Rep. 57; Rice v. Ames, 180 U. S. 371, 373, 45 L. ed. 577, 581, 21 Sup. Ct. Rep. 406, 407. In the latter case the court said: "Motion is made to dismiss the appeal upon the ground that there is no provision of law allowing an appeal in this class of cases. Prior to the court of appeals act of 1891, provision was made for an appeal to the circuit court in habeas corpus cases 'from the final decision of any court, justice, or judge inferior to the circuit court' (Rev. Stat. § 763, U. S. Comp. Stat. 1901, p. 594); and from the final decision of such circuit Bankruptcy-preferences-franchise tax. court an appeal might be taken to this court (Rev. Stat. § 764, as amended March 3, 1885, chap. 353, 23 Stat. at L. 437, U. S. Comp. Stat. 1901, p. 595).

1. The claim of the state of New Jersey against the estate of a bankrupt corporation organized under the laws of that state, but doing no business and having no property there, for the "annual license fee or franchise tax" on its outstanding capital stock, imposed under N. J. Gen. Stat. 1895, $8 251, 252, 257, 258, 260, is for a tax legally due and owing to the state, which, under the bankrupt act of July 1, 1898 (30 Stat. at L. 563, chap. 541, U. S. Comp. Stat. 1901, p. 3447), § 64a, must be paid in advance of dividends to creditors.

2. The finding of the state board of assessors as to the amount of outstanding cap ital stock of a corporation, made for the purpose of fixing the amount of the annual license fee or franchise tax imposed by N. J. Gen. Stat. 1895, §§ 251, 252, 257, 258, 260 is not conclusive on the bankruptcy court, in view of the provisions of the bankrupt act of July 1, 1898, § 64a, that, in case any question arises as to the amount or legality of any tax entitled to priority of payment under that section, the same shall be heard and determined by the court.

3. The franchise tax assessed under N.

"The law remained in this condition until "The law remained in this condition until the court of appeals act of March, 1891 [26 Stat. at L. 828, chap. 517, U. S. Comp. Stat. 1901, p. 549], was passed, the 5th section of which permits an appeal directly from the district court to this court in any case in which the constitutionality of any law of the United States, or the validity or construction of any treaty made under its au- Bankruptcy-preferences-franchise tax. thority, is drawn in question.' In this connection the appellee insists that an appeal will not lie, but that a writ of error is the will not lie, but that a writ of error is the proper remedy. In support of this we are cited to the case of Bucklin v. United States, 159 U. S. 680, 40 L. ed. 304, 16 Sup. Ct. Rep. 182, in which the appellant was convicted of the crime of perjury, and sought a review of the judgment against him by an appeal, which we held must be dismissed, upon the ground that criminal cases were reviewable here only by writ of error. Obviously that case has no application to this, since, under the prior sections of the Revised Statutes, Argued and submitted October 19, 1906. Deabove cited, which are taken from the act of 1842, an appeal was allowed in habeas

J. Gen. Stat. 1895, §§ 251, 252, 257, 258, 260 on the basis of the capital stock of a corporation issued and outstanding on the 1st of January preceding the making of the return, is "legally due and owing" within the meaning of the bankrupt act of July 1, 1898, § 64a, providing that taxes must be paid in advance of the payment of dividends to creditors, although such tax may not have been collectible until after the corporation was adjudged a bankrupt.

[No. 49.]

cided December 10, 1906.

corpus cases. The observation made in the APPEAL from the United States Circuit

Bucklin Case that 'there was no purpose by that act to abolish the general distinction, at common law, between an appeal and a writ of error, may be supplemented by say

Court of Appeals for the Seventh Circuit to review a judgment which affirmed a judgment of the District Court for the Northern District of Illinois, which had, in

turn, affirmed the finding of a referee in | ing capital stock in the sum of $2,500.00, in bankruptcy, denying to the state of New accordance with the return of the company Jersey a preference for alleged franchise filed on May 1, 1903. taxes due from the estate of a bankrupt corporation. Reversed and remanded to the District Court for further proceedings.

On February 12, 1904, the state of New Jersey filed its motion before the referee for the payment of said taxes as a prefer

See same case below, 70 C. C. A. 388, 137 ential debt. The referee disallowed the 1903 Fed. 858.

Statement by Mr. Justice Day: This is an appeal from the judgment of the circuit court of appeals for the seventh circuit, affirming the order of the district court, which affirmed the finding of the referee in bankruptcy, denying to the state of New Jersey a preference for alleged franchise taxes from the estate of a bankrupt, the Cosmopolitan Power Company.

On December 21, 1903, the claim for the state was filed, under the provisions of § 64a of the bankrupt law. [30 Stat. at L. 563, chap. 541, U. S. Comp. Stat. 1901, P. 3447.] The claim is set forth as follows:

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tax altogether, and allowed the 1902 tax as a general claim against the estate for the sum of $4,945.08. This reduction was made from the assessment for the year 1902, because the state board had made the assessment upon the basis of $40,000,000 of outstanding capital stock, whereas, in fact, only $10,000,000 was then issued and outstanding, upon which basis the referee made the allowance. The district court affirmed the order of the referee. Upon appeal to the circuit court of appeals that court modified the judgment of the district court so as to allow the taxes claimed for the year 1903, as a general debt, and in other respects affirmed the district court. 70 C. C. A. 388, 137 Fed. 858. The case was then brought here.

Messrs. Edward D. Duffield, Robert H. McCarter, and Levy Mayer for appellant.

Messrs. Frederick D. Silber and Horace Kent Tenney for appellee.

Mr. Justice Day delivered the opinion of the court:

The provisions of the bankrupt law governing the payment of taxes are found in § 64a, act of 1898 (30 Stat. at L. 563, chap. 541, U. S. Comp. Stat. 1901, p. 3447), which reads:

of the payment of dividends to creditors, and, upon filing the receipts of the proper public officers for such payment, he shall be credited with the amount thereof, and in case any question arises as to the amount or legality of any such tax, the same shall be heard and determined by the court."

The Cosmopolitan Power Company is a corporation organized under the laws of the state of New Jersey on April 30, 1900, for "Sec. 64a. The court shall order the trusthe purpose of dealing in engines, machines, tee to pay all taxes legally due and owing etc. By its charter it had power to do bus by the bankrupt to the United States, state, iness in any state or territory of the Unit-county, district, or municipality, in advance ed States. While it had its principal office in the state of New Jersey, located under the terms of its certificate of incorporation, it had no property in that state, and conducted its business in the state of Illinois. The capital stock of the corporation on January 1, 1902, was forty millions of dollars, of which there was ten millions outstanding. On May 13, 1902, its capital stock, pursuant to the laws of New Jersey, was reduced to $2,500,000. The company was adjudicated a bankrupt on April 23, 1903, upon an involuntary petition filed in the district court for the northern district of Illinois.

The statute of the state of New Jersey (Gen. Stat. 1895, §§ 251, 252, 257, 258, 260) by its title undertakes to provide for the imposition of state taxes upon certain corporations, and for the collection thereof. It requires the corporation to make return to the state board of assessors on or before the On November 7, 1902, the state board of first Tuesday in May of each year, and to assessors of New Jersey, the company hav- pay an annual license fee or franchise tax ing failed to make return, levied an assess- of a certain per cent on its capital stock ment for the license or franchise tax in ques- issued and outstanding on January 1 of tion for the year 1902 in the sum of $5,750.- each year, up to and including $3,000,000; a 00. On June 1, 1903, there was assessed different per cent on sums in excess of $3,against the company for the year beginning| 000,000, and not exceeding $5,000,000, and on January 1, 1903, a similar tax on outstand-outstanding capital stock exceeding $5,000,

000, $50 per million or any part thereof. In taxes legally due and owing, without discase the corporation shall fail to make re- tinction between the United States and the turn the state board shall ascertain and fix state, county, district, or municipality. the amount of the annual license fee or An argument is made as to the alleged infranchise tax, and shall report to the comp-justice of this requirement, in that it may troller on or before the first Monday in take away from the local creditors in the June the basis and amount of the tax as re-state where the property of the corporation turned by each company to, or ascertained by, the board, which shall then become due and payable, and it shall be the duty of the state treasurer to receive the same. If the tax remains unpaid on July 1st after the same becomes due it shall thenceforth bear interest at the rate of 1 per cent per month. That the tax shall be a debt due from the company to the state, for which it may maintain an action at law for recovery thereof, after the same shall have been in arrears for the period of one month, and the tax shall be a preferred debt in cases of insolvency, and in cases of arrears for three months the state may apply for an injunction to restrain the company from exercising its corporate franchise; and that if any corporation shall be delinquent for two years its charter shall be void, unless further time be given for the payment of taxes.

is situated practically all the assets of the corporation in favor of the state where the corporation is organized, but has no business or property. And it is urged that to permit a state, under such circumstances, to have a preference in the payment of taxes, would give to it an advantage which it could not otherwise obtain for want of charge or lien upon the property. But considerations of this character, however properly addressed to the legislative branch of the government, can have no place in influencing judicial determination. It is the province of the court to enforce, not to make, the laws, and, if the law works inequality, the redress, if any, must be had from Congress.

The question is, Is the claim a tax legally due and owing to the state of New Jersey? We have been cited to many cases in the state of New Jersey, some of which, it is alleged, maintain the theory of the appellant that this is a tax, and some the contrary view.

Without undertaking to analyze these numerous cases or to harmonize the views

It is contended for the appellee that these provisions do not entitle the state to the payment of its claim as a preferred tax within the meaning of the bankrupt act. It is insisted, in the first place, that a proper construction of the act of 1898 does not re-expressed by different judges, we think the quire the payment of taxes to a state wherein the bankrupt has no property, and the state no means of collecting the tax from property within its jurisdiction. And it is urged that the taxes to be paid are those legally due and owing to the United States, state, county, district, or municipality, which does not contemplate payment to any and all states, but only to THE state, which, | it is insisted, should be interpreted with the limitation stated.

weight of judicial decision in that state favors the view that this is a tax imposed upon the right of the corporation to continue to be a corporation, with power to exercise its corporate franchises, based upon the amount of its capital stock issued and outstanding.

In Hancock v. Singer Mfg. Co. 62 N. J. L. 289, 42 L.R.A. 852, 41 Atl. 846, it was said: "The act of 1884 (Pamph. L. p. 232) is entitled 'An Act to Provide for the Imposition of State Taxes upon Certain Corporations and for the Collection Thereof.'

"In this act this imposition is called a yearly license fee or tax.

"In a supplement passed to the act of 1884 (Pamph. L. 1891, p. 150) it is styled 'a tax.'

"In a further supplement, passed in 1892 (Pamph. L. p. 136), it is called 'an annual license fee or franchise tax.'

It is to be noted that there is a very significant difference in this respect, in the act of 1898, from the provisions of the bankrupt act of 1867 (14 Stat. at L. 530, chap. 176), the law in force last before, and doubtless in the view of Congress when the present law was drafted. That act of 1867 gave priority of payment to all debts due to the United States, and all taxes and assessments under the laws thereof, all debts due to the state in which the proceedings in bankruptcy were pending, and all taxes and assessments made under the laws of such state, and provided that nothing contained it. It is levied under an act passed 'to au in the act should interfere with the assess-thorize the imposition of state taxes,' and it ment and collection of taxes by the authority of the United States or any state.

The requirement of the present law is a wide departure from the act of 1867, and specifically obliges the trustee to pay all

"It is wholly immaterial what name may be given to it. The fact that it is called a license fee' or 'franchise tax' cannot validate

is none the less an interdicted imposition [having reference to the charter then being considered], and none the less a tax because it is given a new name.

"Although under our adjudications, it is

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