This the court held was sufficient. The pro-, given on the trial the tax was reduced, and ceedings leading up to that assessment or- the court of appeals has said: iginated in a complaint, in writing, to the "The claim of appellant to escape a retrogovernor, who thereupon appointed a com- spective assessment of the property of its mission to hear the matter, and if proper, cestui que trust in this case is wholly techimpose the tax, but before it could be en-nical. That it owes the tax it seeks to evade forced or during the process of collection the is made apparent by an examination of this landowner had a right to be heard. The statute now before us does not provide for a notice of the special assessment, nor did the plaintiff have an opportunity to be heard as to the assessment before the board of equalization.

ment complained of, yet they did introduce evidence which we think clearly establishes that appellant justly owes the amount of the tax which has been adjudged against the estate of its cestui que trust." [27 Ky. L. Rep. 595, 85 S. W. 1083.]

record. Although it had in its hands the means of instantly and most conclusively showing either that the trust estate did not own the property with which it was assessed, or that the values were too high, it introduced no evidence whatever on this But in this case the state court has afford- subject. While it was not incumbent uped to the taxpayer full opportunity to be on the appellees to introduce any evidence, heard on the question of the validity and being authorized under the principles herein amount of the tax, and, after such opportu- enunciated to await the evidence of appelnity, has rendered a judgment which pro-lant showing the invalidity of the assessvides for the enforcement of the tax as it has been reduced by the court, the reduction amounting to over $5,000. The plaintiff has, therefore, been heard, and on the hearing has succeeded in reducing the assessment. What more ought to be given? Whether the opportunity to be heard which has been afforded to the plaintiff has been pursuant to the provisions of some statute, as in McMillen v. Anderson, 95 U. S. 37, 24 L. ed. 335, and Hagar v. Reclamation Dist. No. 108, 111 U. S. 701, 28 L. ed. 569, 4 Sup. Ct. Rep. 663, or by the holding of the court that the plaintiff has such right in the trial of a suit to enjoin the collection of the tax, is not material. The state court in this case has held the taxpayer entitled to a hearing, and has granted and enforced such right, and upon the trial has reduced the tax. In so doing the court below has not assumed the legislative function of making an assessment. It has merely reduced, after a full hearing, the amount of an assessment made by the assessor under color, at least, of legislative authority.

The court of appeals has held that the power of the trial court in giving the hearing has been properly exercised.

It is urged that the court below has not in fact decided that the assessment against plaintiff as reduced was legal, but only that plaintiff will not be heard upon the question of enjoining the collection of the tax until plaintiff tenders the amount of tax equitably due. The plaintiff denies that there is any amount equitably due, and it contends that it has not had an opportunity to show the invalidity of the assessment. We think the contention not well founded. The court has held that the burden rested upon the plaintiff to show the invalidity of the tax. Even if erroneous, the decision is not of a Federal nature. It had the chance, at all events, to show the invalidity of the tax in whole or in part. Upon the evidence

We think it sufficiently appears that the plaintiff had an opportunity to be heard upon the question of the validity of the tax, both for want of notice in fact, and whether the property assessed for back taxes had really been omitted from the original list for the years in question, and was therefore properly taxable under the assessment for back taxes. Even if the assessment had been made by the assessor without notice, yet if, upon the hearing in this cause, the plaintiff had the right and an opportunity to be heard, and the assessment was thereon reduced, it has obtained all the hearing it was entitled to. We think the plaintiff did have such a hearing, and the judgment is correct, so far, at least, as this court is authorized to review it. It is therefore affirmed.

MISSISSIPPI RAILROAD COMMISSION,
R. L. Bradley, S. D. McNair, and J. C. Kin-
cannon, Members of Said Commission, and
T. R. Maxwell, Clerk Thereof, Appts.,

V.

ILLINOIS CENTRAL RAILROAD COM

PANY.

State-immunity from suit.

1. A suit to enjoin the enforcement of an order of the Mississippi railroad commission compelling a railroad company to stop its trains at a specified station is not a suit against the state.

Federal courts-enjoining proceedings in state courts.

is not a court within the meaning of U. S. 2. The Mississippi railroad commission Rev. Stat. § 720, U. S. Comp. Stat. 1901, p. 581, forbidding the Federal courts to enjoin proceedings in a state court.

Federal courts-enjoining proceedings in state courts.

line of the railroad of the appellee, and about 98 miles north of New Orleans, in 3. A proceeding before the Mississippi April, 1903, presented a petition to the Misrailroad commission does not become a pro-sissippi railroad commission, asking that ceeding in a state court, within the mean- commission to order the railroad company to ing of U. S. Rev. Stat. § 720, so as to pre-stop its passenger trains numbers 1, 3, and vent a Federal court from enjoining the enforcement of an order of such commission which is claimed to violate the Federal Constitution, because the commission would have to resort to a state court to aid it in the enforcement of its order. Appeal-jurisdiction of circuit court of ap

peals.

4. An appeal lies to the appropriate circuit court of appeals in a case where the jurisdiction of the circuit court attached both on the ground of diverse citizenship and on a separate and independent constitutional ground.

Commerce-state regulation-requiring train to stop at county seat.

5. Interstate commerce is unconstitutionally interfered with by an order of the Mississippi railroad commission, made in the exercise of its discretionary authority, under Miss. Code 1892, §§ 3550, 4302, requiring a railway company to stop its interstate mail trains at a specified county seat, where proper and adequate railway passenger facil

ities are otherwise afforded that station.

[No. 64.]

4 at the Magnolia station, the ground of the request being, as stated in the petition, that Magnolia was one of the most progressive towns in the state and the county site of the county, and the petitioners believed that they were entitled to have these trains make regular stops at that point, and they stated their belief that it was for the best interest of the public, as well as the town, to have the passenger trains named make regular stops at the town.

Trains numbers 1 and 3 were south-bound trains from Chicago, passing Magnolia on their way to New Orleans, while train number 4 was a train on its way north to Chicago from New Orleans.

After a hearing before the railroad commission, on notice to the railroad company, the commission made an order granting the application as to trains 1 and 3, and denying it as to number 4.

Before obeying the order the company brought this suit to enjoin its enforcement. Upon the filing of the bill a temporary in

Argued October 26, 1906. Decided Decem- junction was issued and a subsequent

A

ber 3, 1906.

motion to dissolve it was denied. The defendant in the suit, the railroad commission, answered the bill, and denied that the railroad company furnished the town of Magnolia with adequate accommodations for the

PPEAL from the United States Circuit Court of Appeals for the Fifth Circuit to review a judgment which reversed a judgment of the Circuit Court for the South-south, and put in issue the allegations of the ern District of Mississippi, in favor of defendants in a suit to enjoin the enforcement of an order of the Mississippi railroad commission requiring a railway company to stop its interstate mail trains at a specified county seat, and remanded the case, with directions to enter a decree enjoining the enforcement of such order. Affirmed. See same case below, 70 C. C. A. 617, 138 Fed. 327.

Statement by Mr. Justice Peckham:

The railroad commission of the state of Mississippi, and its members and clerk, as appellants, bring to this court by appeal the judgment of the circuit court of appeals for the fifth circuit, which court reversed the judgment of the United States circuit court for the southern district of Mississippi, in favor of the appellants, and remanded the case, with directions to enter a decree for the complainant, the railroad company.

The case, as it appears in the record, shows the following facts:

The citizens of the town of Magnolia, which has about 1,200 inhabitants, and is situated in the state of Mississippi, on the

bill that the order made by the commission was unreasonable or an illegal interference with the interstate commerce of the railroad company. The case came on for hearing before the circuit court, at the end of which a decree was made denying the relief asked for by the complainant, the court holding that the order of the commission was not unreasonable, and that therefore the temporary injunction should be, and it was, dissolved. An appeal to the circuit court of appeals was prayed for by the railroad company and granted.

The bill stated, amongst other things, that the corporation was created under the laws of the state of Illinois, and that the complainant was a resident of that state, and domiciled in the city of Chicago; and that the railroad commission was created by the state of Mississippi, and its individual members were citizens and residents of that state. The complainant further showed that it was operating an interstate line of railroad, extending from the city of New Orleans, in Louisiana, north through that state and the states of Mississippi, Kentucky, Indiana, and Illinois to the Great Lakes of

a statement of the material portions of the evidence taken at the hearing before the trial court. It is unnecessary to repeat it. The first objection raised by the appellant is, that this suit is, in substance, one against a state. The commission was created by the state of Mississippi, under the authority of its Constitution and laws, for the purpose of supervising, and, to soine extent, controlling, the acts of the railroads operating within the state. Such a commission is subject to a suit by a citizen. Reagan v. Farmers' Loan & T. Co. 154 U. S. 362, 38 L. ed. 1014, 4 Inters. Com. Rep. 560, 14 Sup. Ct. Rep. 1047; Smyth v. Ames, 169 U. S. 466, 42 L. ed. 819, 18 Sup. Ct. Rep. 418; Prout v. Starr, 188 U. S. 537, 47 L. ed. 584, 23 Sup. Ct. Rep. 398. We do not see that Arbuckle v. Blackburn, 191 U. S. 405, 48 L. ed. 239, 24 Sup. Ct. Rep. 148, is at all in point.

It is also objected that an injunction will not lie from a United States court to stay proceedings in a state court, because of the provisions of § 720, United States Revised Statutes (U. S. Comp. Stat. 1901, p. 581). The commission is, however, not a court, and is a mere administrative agency of the state, as held by the Mississippi court. Western U. Teleg. Co. v. Mississippi Railroad Commission, 74 Miss. 80, 21 So. 15.

1142, 24 Sup. Ct. Rep. 784, is cited as authority. The complainant in this case, by a proper pleading, set up not only the diversity of citizenship, but also a constitutional question, and the complainant had the right to appeal from the judgment of the circuit court to the circuit court of appeals, and from its decision in such a case an appeal or writ of error may be taken to this court. American Sugar Ref. Co. v. New Orleans, 181 U. S. 277, 281, 45 L. ed. 859, 861, 21 Sup. Ct. Rep. 646; Huguley Mfg. Co. v. Galeton Cotton Mills, 184 U. S. 290, 295, 46 L. ed. 546, 548, 22 Sup. Ct. Rep. 452. The case of Field v. Barber Asphalt Paving Co. supra, does not hold otherwise. It simply holds that where the jurisdiction of the circuit court attaches on the ground of diverse citizenship, and also upon a separate and independent constitutional ground, the party may take a direct appeal to this court; but it does not hold that the defeated party must do so, and that he cannot go to the circuit court of appeals.

The main question is, as stated in the court below, whether the order of the commission is valid with reference to the Federal Constitution. That depends upon the question whether it is only an incidental interference with interstate commerce, based upon a legal exercise of the police powers of the state for the purpose of securing proper and sufficient accommodation from the rail

residents of the state. The authority of the commission to interfere with a railroad is based on the statutes of Mississippi. Section 3550 (chapter 112, Code of Mississippi, 1892, relating to railroads) reads as follows:

It is urged, however, that proceedings in a state court were commenced by the presentation of the petition of the citizens of Mag-road company for railroad facilities for the nolia to the railroad commission, and because the commission, having made an order to stop the trains, would have to resort to the proper state court to aid it in the enforcement of its order, therefore the whole proceeding must be regarded as in a state court from the commencement. Whatever may be the provision in the state statute in regard to the enforcement solely by the state court of the order of the railroad commission, the proceeding while before the commission never thereby became a proceeding in a state court, and the jurisdiction of the Federal court to enjoin the commission from the enforcement of its order, because such order was a violation of the Federal Constitution, was not in the least affected.

The appellants also object that the circuit court of appeals had no jurisdiction to review the judgment of the circuit court in this case, because, as is stated, the jurisdiction was predicated upon diversity of citizenship, and also upon the claim that the state statutes requiring the stoppage of trains, when applied to the trains under discussion, violated the commerce clause of the Federal Constitution, and, therefore, the case should have come directly here from the circuit court, and Field v. Barber Asphalt Paving Co. 194 U. S. 618, 48 L. ed.

"3550. To stop all passenger trains, if, etc., at county seats.-Every railroad shall cause each and all of its passenger trains to stop for passengers at all county seats at which it has a depot, at the discretion of the railroad commission."

Chapter 134 of the same Code relates to the supervision of common carriers. Section 4302 thereof reads as follows:

"Necessary depots to be maintained.Every railroad shall establish and maintain such depots as shall be reasonably necessary for the public convenience, and shall stop such of the passenger and freight trains at any depot as the business and public convenience shall require; and the commission. may cause all passenger trains to permit passengers to get on and off in a city at any place other than at the depot, where it is for the convenience of the traveling public. And it shall be unlawful for any railroad to abolish or disuse any depot when once established, or to fail to keep up the same and to regularly stop the trains thereat, without the consent of the commission."

Under these statutes the commission has | Gladson v. Minnesota, 166 U. S. 427, 41 L. power (a) to stop, in its discretion, all pas- ed. 1064, 17 Sup. Ct. Rep. 627; Lake Shore & senger trains at all county seats at which M. S. R. Co. v. Ohio, 173 U. S. 285, 43 L. ed. the company has a depot; (b) to stop such 702, 19 Sup. Ct. Rep. 465; Cleveland C. C. & of the passenger and freight trains at any St. L. R. Co. v. Illinois, 177 U. S. 514, 44 depot as the business and public convenience L. ed. 868, 20 Sup. Ct. Rep. 722. Upon the may require. The order in question was principles decided in these cases, a state made with regard to a place which is both railroad commission has the right, under a a county seat and also one where the rail- state statute, so far as railroads are conroad has a depot. It is not plain under cerned, to compel a company to stop its which section the commission acted. Its trains under the circumstances already reorder simply states that the petition of the ferred to, and it may order the stoppage of citizens of Magnolia is granted as to trains such trains if the company does not other1 and 3, and denied as to train 4. The peti- wise furnish proper and adequate accomtion throws no light upon the subject. We modation to a particular locality, and in may assume, however, that the commission such cases the order may embrace a through acted under all the authority it had from interstate train actually running, and comthe above quoted sections of the statute. It pel it to stop at a locality named. In such is fair to assume that it had exercised its case, in the absence of congressional legisdiscretion in causing the trains to stop at lation covering the subject, there is no illegal a county seat, and that it did so because, or improper interference with the interstate in its judgment, it was reasonable and neces-commerce right; but if the company has sary for the public convenience. The question is whether, having regard to the facts, the order is valid.

The matter of the validity of statutes directing railroad companies to stop certain of their trains at stations named has been before this court several times, and the result of its holdings is: That a statute of Illinois, which required the Illinois Central Railroad to stop its fast mail train from Chicago to New Orleans at Cairo, in the state of Illinois, which was a county seat, was unconstitutional if the company had made adequate accommodation by other trains for interstate passengers to and from Cairo. That a statute which required every railroad corporation to stop all regular passenger trains running wholly within the state at its stations at all county seats was a reasonable exercise of the police power of the state, where the statute did not apply to railroad trains entering the state from any other state, or transcontinental trains of any railroad. A statute relating to railroad companies which provided that a company should cause three of its trains each way, if so many were run daily, Sundays excepted, to stop at a station containing over 3,000 inhabitants, was valid in the absence of legislation by Congress on the subject; and also a state statute which required all regular passenger trains to stop at county seats was invalid when applied to an interstate train, intended only for through passengers from St. Louis to New York, when it appeared that the railroad company furnished sufficient trains to accommodate all the local through business in the state, and where such trains stopped at county seats. These principles have been decided in Illinois C. R. Co. v. Illinois, 163 U. S. 142, 41 L. ed. 107, 16 Sup. Ct. Rep. 1096;

furnished all such proper and reasonable accommodation to the locality as fairly may be demanded, taking into consideration the fact, if it be one, that the locality is a county seat, and the amount and character of the business done, then any interference with the company (either directly, by statute, or by a railroad commission acting under authority of a statute) by causing its interstate trains to stop at a particular locality in the state is an improper and illegal interference with the rights of the railroad company, and a violation of the commerce clause of the Constitution.

In reviewing statutes of this nature, and also orders made by a state railroad commission, it frequently becomes necessary to examine the facts upon which they rest, and to determine from such examination whether there has been an unconstitutional exercise of power and an illegal interference by the state or its commission with the interstate commerce of the railroad. Whether there has or has not been such an interference is a question of law arising from the facts. In this case there was no important conflict of evidence on the material points, and so the circuit court of appeals has stated and these facts are clearly and sufficiently set forth in 138 Fed. supra. The fact that the company has contracts to transport the mails of the United States within a time which requires great speed for the trains carrying them, while not conclusive, may still be considered upon the general question of the propriety of stopping such trains at certain stations within the boundaries of a state. The railroad has been recognized by Congress, and is the recipient of large land grants, and the carrying of the mails is a most important function of such a road.