(45 S. Ct.) It will thus be seen that there is nothing office. The property physically located within this decision upon which the decree under in the state constitutes more than half of all review can properly rest. Its effect is en- its property. The operations actually pertirely the other way. formed within the state include, among others, mechanical operations indispensable to the conduct of the business, and extensive auxiliary activities. The business which the company sought and obtained leave to do in corporate form is intrastate or interstate or both. The broad powers sought and granted, it still possesses and seeks to retain. [5] Some stress is laid upon the fact that the objects and purposes specified in appellant's articles of incorporation are not confined to the transportation of petroleum but include the doing of other business local in character. As to this, it is enough to say that none of these powers were in fact exercised in the state of Missouri; and so The immunity from state taxation accorded is not that enjoyed by federal instrumentalities in the absence of legislation by Congress authorizing such taxation. See Thomson v. Union Pacific Railroad, 9 Wall. 579, 19 L. Ed. 792. It is not the immunity of a federal corporate franchise, as in California v. Central Pacific R. Co., 127 U. S. 1, 42, 8 S. Ct. 1073, 32 L. Ed. 150. It has not the support of congressional action. The tax is held void solely on the ground that it is obnoxious to the commerce clause. A state tax is obnoxious to that provision of the federal Constitution only if it directly burdens interstate commerce, or (where the burden is indirect) if it obstructs or discriminates against such [6] Nor is it material that appellant applied for and received a Missouri license or that it had the power thereunder to exercise the right of eminent domain. These facts could not have the effect of conferring upon the state an authority, denied by the federal Constitution, to regulate interstate commerce. The state has no such power even commerce. Here there is no contention that, in the case of domestic corporations. See I'hila. Steamship Co. v. Pennsylvania, 122 U. S. 326, 342, 7 S. Ct. 1118, 30 L. Ed. 1200. The statute as applied to appellant is uncon stitutional. Reversed. The in fact, the tax assessed either obstructs, or appreciably burdens, interstate commerce. *569 The tax is trifling in amount.1 *There is no contention that, in fact, the tax discriminates against interstate commerce. The tax is apMr. Justice BRANDEIS (dissenting). plied alike, whether the business done is inThere is court assumes, without discussion, that if, interstate, or intrastate, or both.2 Missouri, the company is engaged exclusively no contention that the statute discriminates in interstate commerce, the tax assessed upagainst corporations organized under the on the Ozark Company is bad. It concludes, laws of other states. The tax is the same for upon discussion, that the business actually domestic corporations as it is for foreign cordone by the company within that state is porations. The citizenship of the corporaexclusively interstate commerce, because the tion is confessedly not of legal signincance article with which it deals is not produced in this connection. 3 within Missouri and the physical operations of the company within the state relate directly or indirectly to transporting the article through it. Under the rule applied, every tax laid by any state upon the corporate franchise (properly so called) of every corporation, domestic or foreign, must be void, in the absence of congressional authorization, where the corporation is actually engaged exclusively in what is deemed interstate commerce. I find in the Constitution no warrant for the assumption which leads to such a result. The tax assailed is not laid upon the occupation, as was that in Texas Transport & *568 Can it be said that this tax directly burdens interstate commerce? A tax is a direct burden, if laid upon the operation or act of Thus a tax is a direct interstate commerce. burden where it is upon property moving in interstate commerce, Champlain Realty Co. v. Brattleboro, 260 U. S. 366, 43 S. Ct. 146, 67 L. Ed. 309, 25 A. L. R. 1195; Eureka Pipe Line Co. v. Hallanan, 257 U. S. 265, 42 S. Ct. 101, 66 L. Ed. 227; United Fuel Gas Co. v. It is now one-twentieth of 1 per cent. of that fraction of the whole capital stock and surplus which is proportionate to the fraction in value of the total assets of the corporation which are located within the state. The question of a limit upon the amount of the tax discussed in Baltic Mining Co. v. Massachusetts, 231 U. S. 68, 87, 34 S. Ct. 15, 58 L. Ed. 127, and International Paper Co. v. Massachusetts, 246 U. S. 135, 140, 38 S. Ct. 292, 62 L. Ed. 624, Ann. Cas. 191SC, 617, is not material here. Terminal Co. v. New *Orleans, 264 U. S. 150, 44 S. Ct. 242, 68 L. Ed. 611. Nor is the tax laid upon the privilege of doing business. It is laid upon the privilege of carrying on business in corporate form; of doing so with a usual place of business within the state, and with power to exercise for that purpose the right of eminent domain. The office It applies, also, to corporations organized unwithin the state is the corporation's mainder the laws of a foreign country. 2 If the tax assessed is held void, the statute will, in fact, discriminate against intrastate commerce; for the tax is confessedly valid as applied to all corporations which do not engage exclusively in interstate commerce. Hallanan, 257 U. S. 277, 42 S. Ct. 105, 66 L. Ed. 234; or where, like a gross receipts tax, it lays a burden upon every transaction in such commerce, Crew Levick Co. v. Pennsylvania, 245 U. S. 292, 297, 38 S. Ct. 126, 62 L. Ed. 295. But a tax is not a direct burden merely because it is laid upon an indispensable instrumentality of such commerce, or because it arises exclusively from transactions in interstate commerce. Thus, a tax is valid although imposed upon property used exclusively in interstate commerce, Transportation Co. v. Wheeling, 99 U. S. ,273, 284, 25 L. Ed. 412; Old Dominion S. S. Co. v. Virginia, 198 U. S. 299, 306, 25 S. Ct. 686, 49 L. Ed. 1059, 3 Ann. Cas. 1100; or although laid upon net income derived exclusively from interstate commerce, United States Glue Co. v. Oak Creek, 247 U. S. 321, 38 S. Ct. 499, 62 L. Ed. 1135, Ann. Cas. 1918E, 748; Shaffer v. Carter, 252 U. S. 37, 57, 40 S. Ct. 221, 64 L. Ed. 445; Compare Peck & Co. v. Lowe, 247 U. S. 165, 38 S. Ct. 432, 62 L. Ed. 1049; Wagner v. *City of Covington, 251 U. S. 95, 40 S. Ct. 93, 64 L. Ed. 157. These taxes were held valid because, unlike a gross receipts tax, they do not withhold, "for the use of a state, a part of every dollar received in such transactions." See Crew Levick Co. v. Pennsylvania, 245 U. S. 297, 38 S. Ct. 126, 62 L. Ed. 295. Surely the tax upon the corporate franchise is as indirect as the tax upon the pipe line. *570 tended for period of military service under Soldiers' and Sailors' Civil Relief Act (Act March 8, 1918 [Comp. St. 1918, Comp. St. Ann. Supp. 1919, §§ 30784a-30784 ss]), as amended by Act Sept. 3, 1919, where sale was held before en100, 205 (sections 30784a, 30784e), relating actment of statute, notwithstanding sections to statutes of limitation, and section 302, subsec. 2, (section 30784ff), giving court, in proceedings brought therein "during the period of military service," the right to stay proceedings, and Comp. Laws Mich. 1915, §§ 12676-12692, providing for foreclosure proceedings in chancery, instead of proceedings by advertisement. 2. Army and navy 34-Decree for foreclosure may be stayed or otherwise disposed of under Soldiers' and Sailors' Civil Relief Act only if suit was commenced after passage of act. Under Soldiers' and Sailors' Civil Relief Act (Act March 8, 1918 [Comp. St. 1918, Comp. St. Ann. Supp. 1919, §§ 30784a-30784ss]), 302, subsec. 2 (section 30784ff), empoweras amended by Act Sept. 3, 1919, by section ing court to stay proceedings commenced "during period of military service" or to make other equitable disposition of case, a decree of foreclosure may be stayed or otherwise disposed of only if suit was commenced after passage of act, in view of subsections 1 and 3, and section 101, subsec. 2 (section 30784aa), defining "period of military service" to mean service after approval of act. 3. Army and navy 34-Mortgage foreclo sure sale not void under Soldiers' and Sailors' Civil Relief Act unless made after passage of act. Sale under power of sale or under judgment entered upon warrant of attorney to confess judgment is not void under Soldiers' and SailSt. 1918, Comp. St. Ann. Supp. 1919, §§ ors' Civil Relief Act March 8, 1918 (Comp. I find in the commerce clause no warrant for thus putting a state to the choice of either abandoning the corporate franchise tax or discriminating against intrastate commerce, nor for denying to a state the right to encourage the conduct of business by nat-30784a-30784 ss) as amended by Act Sept. 3, ural persons through imposing, for the enjoyment of the corporate privilege, an annual tax so small that it cannot conceivably be deemed an obstruction of interstate com merce. (266 U. S. 548) EBERT et al. v. POSTON. (Argued Dec. 12, 1924. Decided January 12, 1925.) No. 153. 1. Army and navy 24-Period of redemption not extended for period of military service, under federal Soldiers' and Sailors' Civil Relief Act, where foreclosure was by advertisement and sale at public vendue, held before enactment of statute. Period of redemption, under Comp. Laws Mich. 1915, §§ 14949-14968, providing for foreclosure of real estate mortgages by advertisement and sale at public vendue, was not ex See the discussion of Adams Express Co. v. Ohio State Auditor, 165 U. S. 194, 17 S. Ct. 604, 41 L. Ed. 965, by Thomas Reed Powell, 32 Harv. Law Rev. 251, 261, 262. 1919, by section 302, subsec. 3 (section 30784 ff), making sale void if made during "period of military service" without leave of court, unless made after passage of act, in view of section 101, subsec. 2 (section 30784aa), defining "period of military service" to mean that part of military service following date of approval of act. 4. Army and navy 34-Provision of Soldiers' and Sailors' Civil Relief Act relating to statutes of limitation not applicable to transactions effected without judicial action. Soldiers' and Sailors' Civil Relief Act March 8, 1918 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, §§ 30784a-30784ss), as amended by Act Sept. 3, 1919, as to section 205 (section 30784e), relating to statutes of limitation, does not apply to transactions effected without judicial action. 5. Army and navy 24-Provision of Soldiers' and Sailors' Relief Act relating to period of limitation held inapplicable to period of redemption following sale by advertisement. Soldiers' and Sailors' Civil Relief Act March 8, 1918 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, §§ 30784a-30784 ss), as amended by Act Sept. 3, 1919, as to section For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (45 S.Ct.) lapse, without redemption, of one year from the date of the sale. The statutes provide for redemption at any time within the year, also without resort to any proceedings in court, by paying to the purchaser, or the register, the sum which was bid for the property with prescribed interest and fees. If this is done, the deed becomes void; the register destroys it; and an appropriate entry is made in the registry to clear the title. Com piled Laws of Michigan 1915, c. 249. In 1920, Poston brought this suit in a court of the state to redeem a parcel of land from a foreclosure made by advertisement and sale at public vendue pursuant to the statutes. The purchasers at the sale and a grantee under them, the petitioners here, were joined as defendants. The mortgage, given On Certiorari to the Supreme Court of the in 1916, had been assumed by Poston when State of Michigan. he purchased the land in 1917. The foreclosure sale was duly made on February 5, 1918. There was no redemption within the year. After February 5, 1919, the deed, which had been deposited with the register, was delivered by him to the purchasers. The right of redemption, despite the lapse of the $551 statutory period of one year, *was asserted under the federal Civil Relief Act. That act was passed about a month after the sale. Poston enlisted in the army, on September 29, 1918, nearly 8 months after the sale. He was discharged on May 14, 1919, more than Mr. Justice BRANDEIS delivered the opin- 3 months after the expiration of one year ion of the Court. from the date of sale. On July 24, 1919This is a writ of certiorari granted (263 U. that is, nearly 18 months after the date of S. 694, 44 S. Ct. 36, 68 L. Ed. 510) to review the foreclosure sale-negotiations were bea decree of the Supreme Court of Michigan gun by Poston which later ripened into a teninvolving the effect of the federal Soldiers' der. Under the law of Michigan, these neand Sailors' Civil Relief Act March 8, 1918, gotiations, followed by the tender, constitutc. 20, 40 Stat. 440 (Comp. St. 1918, Comp. St. ed a sufficient basis for the bill to redeem, Ann. Supp. 1919, §§ 30784a-30784 ss), as provided the period of redemption given by amended September 3, 1919 (41 Stat. 282, c. the statute had not then expired. The trial 55), upon a foreclosure of land made under court dismissed the bill. On appeal, the Suthe laws of that state. 221 Mich. 361, 191 | preme Court of the state held that, by reason N. W. 202, 193 N. W. 201. There is no con $550 troversy concerning any provision of state law. The question presented is solely one of the construction of the federal act.1 The statutes of Michigan provide that a mortgage of real estate duly recorded which contains a power of sale may, without resort to any proceeding in court, be foreclosed by advertisement and sale at public vendue. The deed to the purchaser, which is to be promptly deposited with the register of deeds for the county in which the land is situated and appropriately endorsed, vests in the grantee or his assigns all the right, title, and interest of the mortgagor, upon the mere In a motion for rehearing filed in the state Supreme Court constitutional questions were discussed. That court, in denying the petition, refused, under its settled practice, to consider them, because they had not been urged in the original brief. They are not urged here. of the federal act, the one-year period for redemption had been extended by the length of the period of military service, and that, consequently, the extended period had not yet expired on July 24, 1919. Whether the federal act was correctly construed is the question for decision. Under [1] The court below recognized that the act does not in terms cover the case of a sale by advertisement made before the passage of the act. Its conclusion that the federal act extended the statutory period of redemption rests upon the following reasoning. the laws of Michigan, the mortgagees might have brought proceedings in chancery to foreclose the mortgage (Compiled Laws 1915, §§ 12676-12692), instead of proceeding by advertisement. If they had sued in chancery, that court would, by reason of the federal act, have possessed the power to stay execution of its own decree after a sale made For other cases see same topic aud KEY-NUMBER in all Key-Numbered Digests and Indexes thereunder, provided application was made to it before expiration of the time therein fixed for redemption. Therefore the act should be construed so as to accomplish a like result in the case of a foreclosure by advertisement. The provisions in the act which are relied upon in support of this conclusion are section 302 and section 205 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, §§ 30784ff, 30784e). The former (set forth in *552 *the margin 2) is the only section which mentions mortgages or powers of sale. The latter (also set forth in the margin3) relates to the statutes of limitation of actions. We are of opinion that neither section supports the conclusion, and that it is erroneous. follows "the date of approval of the act." Thus, a decree for foreclosure may be stayed, or otherwise disposed of, under section 302 only if the suit was commenced after the passage of the act and during the period of military service. And, likewise, it is only sales made after the passage of the act and during military service that are invalidated if made without leave of court. [4, 5] Section 205 does not apply to transactions which are effected without judicial action. The statutory right to redeem from a sale by advertisement is not a right of action. It is a primary right as distinguished from a remedy. The defeasible title of the purchaser at the sale becomes absolute if the mortgagor fails to avail himself of the right [2, 3] Subsection 2 of section 302 deals within the statutory period. The purchaswith proceedings brought in court to fore-er's title is extinguished if it is availed of. close mortgages. Subsection 3 deals with The bill in equity is merely the remedy by sales under powers of sale, whether brought which the right, if still existing, may be enin court or effected in pais, as by advertisement. Neither subsection includes within *553 its scope proceedings taken prior to the *passage of the act or prior to the commencement of the military service. By their own words, subsection 2 applies to suits commenced "during the period of military service," and subsection 3 to sales made "during the period of military service or within three months thereafter." But the definition given in subsection 2 of section 101 (section 30784aa) to the words "period of military service" makes the words used in section 302 mean that part of the military service which Sec. 302. (1) That the provisions of this section shall apply only to obligations originating prior to the date of approval of this act and secured by mortgage, trust deed, or other security in the nature of a mortgage upon real or personal property owned by a person in military service at the commencement of the period of the military service and still so owned by him. (2) In any proceeding commenced in any court during the period of military service to enforce such obligation arising out of nonpayment of any sum thereunder due or out of any other breach of the terms thereof occurring prior to or during the period of such service, the court may, after hearing, in its discretion, on its own motion, and shall, on application to it by such person in military service or some person on his behalf, unless in the opinion of the court the ability of the defendant to comply with the terms of the obligation is not materially affected by reason of his military service(a) Stay the proceedings as provided in this act; or (b) Make such other disposition of the case as may be equitable to conserve the interests of all par ties. (3) No sale under a power of sale or under a judgment entered upon warrant of attorney to confess judgment contained in any such obligation shall be valid if made during the period of military service or within three months thereafter, unless upon an order of sale previously granted by the court and a return thereto made and approved by the court. 3 Sec. 205. That the period of military service shall not be included in computing any period now or hereafter to be limited by any law for the bringing of any action by or against any person in military service or by or against his heirs, executors, administrators, or assigns, whether such cause of action shall have accrued prior to or during the period of such service. forced. [6, 7] There is a further contention that the broad purpose of the act declared in section 100 (section 30784a) demands that it *554 be liberally construed to include the situation presented by this case. Persuasive legislative reasons for distinguishing between the cases explicitly cared for by sections 302, 205, and the present case suggest themselves. We have no occasion to state them. The judicial function to be exercised in construing a statute is limited to ascertaining the intention of the Legislature therein expressed. A casus omissus does not justify judicial legislation. Compare United States v. Weitzel, 246 U. S. 533, 543, 38 S. Ct. 381, 62 L. Ed. 872. This act is so carefully drawn as to leave little room for conjecture. It deals with a single subject and does so comprehensively, systematically, and in detail. There are in the act an aggregate of 36 sections and 27 subsections. To insure certainty, separate provision is made for each of the several classes of transactions to be dealt with and for the situations likely to arise in each. To promote clarity, the act is divided into six articles, each dealing with a different branch of the subject. The difference in treatment accorded to transactions taking place during a period of military service after the passage of the act as distinguished from those occurring before, is not limited to mortgages and other secured obligations dealt with in section 302. A like distinction Sec. 100. That for the purpose of enabling the United States the more successfully to prosecute and carry on the war in which it is at present engaged, protection is hereby extended to persons in military service of the United States in order to prevent prejudice or injury to their civil rights during their term of service and to enable them to devote their entire energy to the military needs of the nation, and to this end the following provisions are made for the temporary suspension of legal proceedings and transactions which may prejudice the civil rights of persons in such service during the continuance of the present war. (45 S.Ct.) is made in the act in respect to other classes] transportation of persons or property for hire of transactions.5 Such care and particula- by motor vehicle over public highways common rity in treatment preclude expansion of the carriers, prohibiting them from engaging in act in order to include transactions supposed them to carry insurance or execute indemnity such business without permit, and requiring to be within its spirit, but which do not fall bonds, held burden on interstate commerce, not within any of its provisions. Without resort within police power as applied to private carto the common rule that statutes are ordina- rier engaged exclusively in interstate comrily to be construed as prospective in opera- merce. tion, Shwab v. Doyle, 258 U. S. 529, 534, 42 297-State cannot S. Ct. 391, 66 L. Ed. 747, 26 A. L. R. 1454. *555 It is clear that Congress did not intend *to deal with sales on foreclosure made before the passage of the act." We need not consider the contention of the petitioners that the owner of the right of redemption from a sale by advertisement under the Michigan laws is not an owner of real property within the meaning of subsection 1 of section 302 of the federal act. Nor need we consider the contentions of the respondents that there was no proof of a legal foreclosure and that, independently of the federal act, he was entitled to redeem. The latter present questions wholly of state law. Reversed. (266 U. S. 570) 4. Constitutional law convert property used exclusively in business of private carrier into public utility, or make owner public carrier. A state cannot, by legislative fiat, convert property used exclusively in business of private carrier into a public utility, or make owner a public carrier, since in so doing it would take private property for public use without just compensation, in violation of due process clause of Fourteenth Amendment. 297 5. Carriers 2-Constitutional law Pub. Acts Mich. 1923, No. 209, making persons engaged in transportation of persons or property by motor vehicle on public highways common carriers, held unconstitutional, as violative of due process clause of Const. Amend. 14, as applied to private carrier engaged ex MICHIGAN PUBLIC UTILITIES COMMIS- clusively in transportation of property for cer SION et al. v. DUKE. tain concerns, under contracts with them. (Argued and Submitted Nov. 21, 1924. De- 6. Constitutional law 46(1) cided Jan. 12, 1925.) Supreme Court will not determine whether state statute violates state Constitution, where it violates federal Constitution. The United States Supreme Court, in affirming decree enjoining enforcement of state statute, because violative of federal Constitution, will not pass on question whether statute violates state Constitution, in absence of decision of state Supreme Court thereon. Appeal from United States District Court, Eastern District of Michigan. Suit by Coral W. Duke, doing business as the Duke Cartage Company, against the Michigan Public Utilities Commission and others. Decree for plaintiff, and defendants appeal. Affirmed. *571 *Mr. H. E. Spalding, of Detroit, Mich., for appellants. *573 *Messrs. Hal H. Smith and Percy J. Donovan, both of Detroit, Mich., for appellee. Mr. Justice BUTLER delivered the opinion of the Court. Compare provisions concerning taxes and assessments, section 500 (section 30784pp); rent, section This is an appeal under section 266, Judi300 (section 30784ee); rights to public lands, sec- cial Code (Comp. St. § 1243), from an order tion 501 (section 30784q); insurance, section 405 granting an interlocutory injunction restrain(section 30784jj); installment purchases, section 301 ing appellants from enforcing against appel(section 30784f); defaults in actions, section 200 (section 30784 bb); staying of actions, section 201 lee, plaintiff below, Act No. 209, Public Acts (section 30784c). In the case of attachment and of 1923 of Michigan. The act provides that garnishment, section 203 (section 30784d), the provision explicitly includes both proceedings commenced during military service and those commenced before. Taylor v. McGregor State Bank, 144 Minn. 249, 174 N. W. 893; Wood v. Vogel, 204 Ala. 692, 87 So. 174; Bell v. Buffinton, 244 Mass. 294, 137 N. E. 287. 574 no person shall engage or continue *in the business of transporting persons or property by motor vehicle for hire upon the public highways of the state over fixed |