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OII.

1901,
COTTING v. GODARD.

43 *The significance of the question thus | under the circumstances is simply that clearly stated and forcibly answered by the those electing pay less. But this lack of supreme court of Kansas cannot be overes uniformity in the result furnishes no ground timated. It is not the province of this or of complaint under the Federal Constituany other court to consider its purely eco- tion. Suppose, for any fair reason affectnomic features. It may or it may not be ing only its internal affairs, the state should wise, looking at it from such standpoint, to see fit to wholly exempt certain named cor say to every citizen that his industry, abil. porations from all taxation. Of course, ity, activity, and foresight may be rewarded the indirect result would be that all other up to a certain extent, and that beyond that property might have to pay a little larger he may not go. But whether it is wise or rate per cent in order to raise the revenue unwise is not for the courts to determine. necessary for the carrying on of the state Their limits of inquiry are purely judicial. government, but this would not invalidate And the single matter for our present con. the tax on other property, or give any right sideration is whether in the restraint which to challenge the law as obnoxious to the the legislature of Kansas has attempted to provisions of the Federal Constitution.”.. impose upon this stock-yards company it has So, again, exercising the undoubted right trespassed upon those rights which by the of classification it may often happen that Constitution of the United States are se some classes are subjected to regulations, cured to every individual against state ac and some individuals are burdened with obtion. It has been more than once said ligations which do not rest upon other judicially that one of the principles upon classes or other individuals not similarly which this government was founded is that situated. License taxes are imposed on cerof equality of right. It is emphasized in tain classes of business while others are ex. that clause of the 14th Amendment which empt. It would practically defeat legislaprohibits any state to deny to any individual tion if it was laid down as a rule that a statthe equal protection of the laws. That con- ute was necessarily adjudged invalid if it stitutional provision does not, it is true, in- did not bring all within its scope, or subvalidate legislation on the mere ground of ject all to the same burdens. It would inequality in actual result. Tax laws, for strip the legislature of its inherent power to instance, in their nature are and must be determine generally what is for the general general in scope, and it may often happen interests, which interests may often be prothat in their practical application they moted by certain regulations affecting one touch one person unequally from another. class which do not affect another, certain But that inequality is something which it burdens imposed on one which do not rest is impossible to foresee and guard against, upon another. and therefore such resultant inequality in But while recognizing to the full extenta the operation of a law does not defeat its the impossibility of an imposition of duties validity. As was said in this court in and obligations mathematically equal upon 31erchants & Mfrs. Nat. Bank v. Pennsyl- all, and also recognizing the right of classivania, 167 U. S. 461, 463, 42 L. ed. 236, 237, fication of industries and occupations, we 17 Sup. Ct. Rep. 829, 830:

must nevertheless always remember that the "If it be said that a lack of uniformity equal protection of the laws is guaranteed, renders the statute obnoxious to that part and that such equal protection is denied of the 14th Amendment to the Federal Con- when upon one of two parties engaged in the stitution which forbids a state to 'deny to same kind of business and under the same any person within its jurisdiction the equal conditions burdens are cast which are not protection of the laws, it becomes impor- cast upon the other. There can be no pretense tant to see in what consists the lack of uni- that a stock yard which receives 99 head of formity. It is not in the terms or con- cattle per day a year is not doing precisely ditions expressed in the statute, but only in the same business as one receiving foi head the possible results of its operation. Upon of cattle per day each year. It is the same all bank shares, whether state or national, business in all its essential elements, and rests the ordinary state tax of 4 mills. To the only difference is that one does more every bank, state and national, and all alike, business than the other. But the receipt is given the privilege of discharging all tax of an extra 2 head of cattle per day does not obligations by collecting from its stockhold-change the character of the business. If ers and paying 8 mills on the dollar upon once the door is opened to the affirmance of the par value of the stock. If a bank has the proposition that a state may regulate a large surplus, and its stock is in conse- one who does much business, while not quence worth five or six times its par value, regulating another who does the same but naturally it elects to collect and pay the 3 less business, then all significance in the mills, and thus in fact it pays at a less rate guaranty of the equal protection of the laws on the actual value of its property than the is lost, and the door is opened to that in. bank without a surplus, and whose stock is equality of legislation which Mr. Justice only worth par. So it is possible, under Catron referred to in the quotation above the operation of this law, that one bank may made. This statute is not simply legislapay at a less rate upon the actual value of tion which in its indirect results affects difits banking property than another; but the ferent individuals or corporations differentbanks which do not make this election, ly, nor with those in which a classification is whether state or national, pay no more than based upon inherent differences in the char the regular tax. The result of the election acter of the business, but is a positive and

•113

direct discrimination between persons en-| that this was in effect a suit against tho gaged in the same class of business, and state, or that it was an attempt to interfere based simply upon the quantity of business with criminal proceedings; that he pleaded which each may do. If such legislation several defenses and went into a trial of the does not deny the equal protection of the merits on a motion for permanent injunolaws, we are unable to perceive what legis- tion; took part in the taking of an iminense lation would. We think, therefore, that the amount of testimony and in an argument best principle of the decision of the supreme fore the trial judge upon the question of court of Kansas in State v. Haun, 61 Kan. the validity of the statute, and when its 146, 47 L. R. A. 369, 59 Pac. 340, is not only validity had been adjudged, then, for the sound, but is controlling in this case, and first time and as a preliminary to a final that the statute must be held unconstitu- decree to be entered without further testi. tional as in conflict with the equal protec- mony, filed an answer containing a formal tion clause of the 14th Amendment.

plea that the suit was one in effect against There yet remains a question of jurisdic- the state. It is further contended that by tion. The two suits which were consoli- the statutes of Kansas (Kan. Comp. Laws dated were each brought by a stockholder in 1879, p. 901, § 5589) the governor may rebehalf of himself and all other stockholders quire the attorney general to appear for the against the corporation, its officers, and also state in any court and prosecute or defend the attorney general of the state of Kansas. therein any cause or matter, civil or crimThe object of the suits was to restrain the inal, in which the state may be a party or attorney general from putting in force the interested, and that while no request from statute, and the* defendants from reducing the governor was shown the trial court was the funds of the corporation, and therefore justified, in the absence of some challenge of the dividends to the stockholders, by yield. its jurisdiction, in assuming that such reing compliance to the mandates of the stat-quest had been given, and that it would be ute, and failing to charge reasonable rates. grossly inequitable, after a full inquiry upon

Of the jurisdiction of the court over the the merits in such court and an adjudication consolidated suit as one involving a con- in favor of the validity of the statute, to troversy between the stockholders and the permit the attorney general by a formal corporation and its officers, no serious ques- plea of jurisdiction to prevent any review of tion is made. Dodge v. Woolsey, 18 How. the merits in this court. 331, 15 L. ed. 401; Hawes v. Oakland, 104 Without expressing any opinion as to the U. S. 450, sub nom. Hawes v. Contra Costa jurisdiction of the court if it had been propWater Co. 26 L. ed. 827; Pollock v. Farm-erly and seasonably challenged, we think ers' Loan & T. Co. 157 U. S. 429, 39 L. cd. the true solution of this matter will be 759, 15 Sup. Ct. Rep. 673; Smyth v. Ames, found in reversing the decree upon the mer169 U. S. 466, 42 L. ed. 819, 18 Sup. Ct. Rep. its, and directing a dismissal of the suit as 418, seem conclusive on the question. There to the attorney general, without prejudice is no force in the suggestion that the of- to any other suit or action. It is thereficers of the corporation agreed with the fore ordered that the decree of the Circuit stockholders as to the unconstitutionality Court be reversed, and the case remanded to of the statute, and that therefore the suit is that court, with instructions to enter a dea collusive one. That was the condition in cree in favor of the plaintiffs and against Dodge v. Woolsey, 18 How. 331, 15 L. ed. the corporation and its officers, in accord401, and it only emphasizes the fact that the ance with the prayer of the bills, an also officers were refusing to protect the interests a decree dismissing the suit as to the utof the stockholders, not wantonly, it is torney general of Kansas, without prejudice true, but from prudential reasons.

to any further suit or action. But the serious contention is that the court had no jurisdiction over the suit as Mr. Justice Harlan, with whom concuragainst the attorney general of the state, red Mr. Justice Gray, Mr. Justice Brown, and this on two grounds: First, because it Mr. Justice Shiras, Mr. Justice White is in effect a suit against the state, and and Mr. Justice McKenna: therefore forbidden by the 11th Amendment

We assent to the judgment of reversalto the Federal Constitution; and, secondly, so far as the merits of this case are conbecause it is an attempt on the part of a cerned-upon the ground that the statute of court of equity to restrain criminal proceed - Kansas in question is in violation of the ings. It is contended on the other hand 14th Amendment of the Constitution of the that it is not a suit against the state, be- United States in that it applies only to the ne cause it does not in any way involve its Kansas City Stock-Yards Company, and pecuniary interest, and is only an effort to not to other companies or corporations enprevent an officer of the state from putting gaged in like business in Kansas, and therein force an unconstitutional statute; that it by denies to that company the equal prodoes not attempt to interfere with criminal tection of the laws. Upon the question proceedings, because none have been com- whether the statute is unconstitutional menced and none are pending, but involves upon the further ground that, by its necessimply a challenge of the constitutionality sary operation, it will deprive that comof the statute. It is also urged that the at- pany of its property without due process of torney general when served with process did law, we deem it unnecessary to express an not raise either defense; did not suggest opinion.

(183 U. S. 115) WILLIAM B. DINSMORE and C. Gray prevent the application by that corporation

Dinsmore, and William B. Dinsmore, o. of any of its moneys to meet the require Gray Dinsmore, and Dumont Clarke, as ment of the war revenue act of June 13th, Executors and Trustees under the Will 1898, chap. 448, in relation to adhesive of William B. Dinsmore, Deceased, Peti- stamps to be placed upon bills of lading, tioners,

manifests, or other evidences of the receipt

of goods for carriage or transportation. SOUTHERN EXPRESS COMPANY, L. N. The portion of that act to which the bill

Trammell, Thomas C. Crenshaw, Jr., and referred is the following: Spencer R. Atkinson, Composing the Rail "Express and Freight: It shall be the road Commission of the State of Georgia, duty of every railroad or steamboat com. et al.

pany, carrier, express company, or corpo

ration, or person whose occupation is to act War revenue act-express companies-effect as such, to issue to the shipper or consignor, of amendatory act.

or his agent, or person from whom any goods

are accepted for transportation, a bill of The exemption of express companles by the lading, manifest, or other evidence of receipt

amendatory act of March 2, 1901, chap. 806, and forwarding for each shipment received from the requirement of the war revenue act for carriage and transportation, whether in of June 13, 1898, chap. 448, in relation to ad- bulk or in boxes, bales, packages, bundles, hesive stamps to be placed upon bills of lad. Ing, manifests, or other evidences of the re shall be duly attached and canceled, as is

or not so inclosed or included; and there requires the affirmance on certiorari, without in this act provided, to each of said bills of reference to the merits of the case as affected lading, manifests, or other memorandum, by the earlier act, of a judgment of the cir: and to each duplicate thereof, a stamp of cuit court of appeals affecting the dismissal ("the value of one cent: Provided, That but of a suit to prevent the application by an express company of any of its moneys to meet dles or packages of newspapers when in.

one bill of lading shall be required on bun. this requirement.

closed in one general bundle at the time of [No. 136.]

shipment. Any failure to issue such bill

of lading, manifest, or other memorandum, Argucd February 25, 1901. Decided No- as herein provided, shall subject such rail vember 18, 1901.

road or steamboat company, carrier, express

company, or corporation, or person to a penWRIT of Certiorari to the United alty of fifty dollars for each offense, and no Fifth Circuit to review a decision revers- orandum shall be used in evidence unless it ing a decree of the Circuit Court for the shall be duly stamped as aforesaid.” 30 Southern District of Georgia which enjoined Stat. at L. 448, 459, chap. 448. the enforcement of an order of the Railroad

After the passage of the above act comCommission of Georgia requiring an express the railroad commission of that state to the

plaint was made by citizens of Georgia to company to pay the war stamp tax. Af effect that the defendant express company firmed.

See same case below, 42 C. C. A. 623, 102 required shippers or consignors to supply Fed. 794.

the requisite stamps for bills of lading or The facts are stated in the opinion.

receipts given to them. The commission Messrs. William K. Miller and Frank thereupon, July 11th, 1898, ordered that the H. Miller for petitioners.

Southern Express Company appear before Messrs. Joseph M. Terrell and Fleming there to show cause, if any it can, why it

it on the 18th day of July, 1898, “then and G. duBignon for respondents.

should not be held to have violated the rules * Mr. Justice Harlan delivered the opinion exactions or overcharges, as aforesaid, and

and regulations of this commission by the of the court:

William B. Dinsmore and others, citizens why suit should not be instituted against it of New York, --some of them being executors in every case of such overcharges for the and trustees under the will of the late Wil-recovery of the penalty provided by law for liam B. Dinsmore of that state,-brought

such illegal act.” this action on the 17th day of April, 1897,

The company appeared and denied the juin the circuit court of the United States for risdiction of the commission. But on Authe southern district of Georgia against the gust 20, 1898, the commission, after hearSouthern Express Company, a corporation ing the parties, ordered that the required of Georgia having its principal place of busi- stamp be supplied by the express company, ness in that state, and also against L. N. and not by shippers in whole or in part. Trammell, Thomas C. Crenshaw, and Spen

Appropriate allegations having been cer R. Atkinson, constituting the Railroad made to show that the suit was not å collu. Commission of Georgia, and Joseph M. Ter- sive one to confer on a court of the United rell, Attorney General of Georgia, the in- States jurisdiction of the case, of which it dividual defendants being citizens of Geor- would not otherwise have cognizance, the regia.

lief asked wasThe plaintiffs sued as owners and holders That it be adjudged and decreed that the of shares of stock in the defendant express order of the railroad commission of the company, and sought a decree that would state of Georgia of August 20, 1898, requir.

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ing the express company to pay the amount of 1898 relating to stamps to be attached to of the war revenue tax on business from one bills of lading, manifests, etc., was amended point to another in the state without endeav- in important particulars by an act of Conoring to collect the same from shippers, gress approved March 20, 1901, chap. 806. or requiring them to make the payment One amendment, which took effect on and thereof before the issuing of receipts or bills after July 1st, 1901, provided that the above of lading, was unconstitutional,“ null, and part of the act of 1898 should be amended void; that the express company, its officers to read as follows: and agents, be restrained from voluntarily “Freight: It shall be the duty of every complying with the order of the commission railroad or steamboat company, carrier, or of August 2d, 1898, and paying such tax; corporation, or person whose occupation is that the attorney general of the state be re- to act as such, except persons, companies, or strained from instituting any suit against corporations engaged in carrying on a local the express company for the purpose of en or other express business, to issue to the forcing the provisions of the above order of shipper or consignor, or his agent, or perthe railroad commission; that a perpetual son from whom any goods are accepted for injunction, of the same purport, tenor, and transportation, a bill of lading, manifest, effect be granted to complainants; and that or other evidence of receipt and forwarding the plaintiffs have such other and further for each shipment received for carriage and relief in the premises as the nature of the transportation, whether in bulk or in boxes, case required and to a court of equity might bales, packages, bundles, or not so inclosed seem meet.

or included; and there shall be duly atThe railroad commissioners and the at- tached and canceled, as is in this act protorney general of the state severally, de- vided, to each of said bills of lading, manimurred to the bill. The case having been fests, or other memorandum, and to each argued upon the demurrers, Judge Speer duplicate thereof, a stamp of the value of delivered an opinion which is reported in 92 one cent: Provided, That but one bill of Fed. 714.

lading shall be required on bundles or packThat opinion was accompanied by the fol. ages of newspapers when inclosed in one lowing order, entered March 7th, 1899: general bundle at the time of shipment. "It is now upon consideration ordered, ad. Any failure to issue such bill of lading, judged, and decreed that the prayer that manifest, or other memorandum, as herein the Southern Express Company be enjoined provided, shall subject such railroad or from voluntarily paying the war stamp tax steamboat company, carrier, or corporation, in question be, and the same is hereby, de- or person to a penalty of fifty dollars for nied; ordered, adjudged, and decreed fur- each offense, and no such bill of lading, ther that the defendants, the Railroad Com- manifest, or other memorandum shall be mission of Georgia, and each member there used in evidence unless it shall be duly of, to wit, the individual defendants, Lean- stamped as aforesaid.” 31 Stat. at L. 938, der N. Trammell, Thomas C. Crenshaw, Jr., 945, chap. 806. and Spencer R. Atkinson, be, and the same This change in the law renders it unnecare hereby, enjoined from any and all order, essary to consider any of the important direction, action, or legal steps instituting questions determined in the circuit court or tending to institute, and from any and all and circuit court of appeals under the act proceedings for the recovery of the penalties of 1898. The object of this suit was to prenamed in the statute of Georgia in that be- vent the enforcement of the order of the half to enforce compliance with its said or railroad commission based upon its conder against the Southern Express Company, struction of that act. But whatever might its officers or agents, as threatened in the be now held as to the meaning and scope order of said commission, dated August 2, of the act of 1898 as applied to express com1898, for the reason that said order is null panies, the amendatory statute of 1901, in and void, and said commission has no ju- declaring what companies, corporations, and risdiction to adjudge and designate the par- persons shall attach the required stamp to ty who shall pay said tax." The court in bills of lading, manifests, and receipts for its opinion said: “It is not deemed neces- goods or other property to be transported, sary to enjoin the Attorney General, for it distinctly excludes express companies. So is presumed that the eminent lawyer who that no actual controversy now remains or is the official head of the bar of the state can arise between the parties. The plainwill, without such injunction, accord all ap- tiffs do not need any relief, because the act propriate respect to the decision of the of 1901 accomplishes the result they wished. court."

Although this cause was determined in the *Upon appeal to the circuit court of ap- circuit court of appeals and was submitted peals the decree of the circuit court was re- here prior to July 1st, 1901, our judgment versed, June 7th, 1900, with directions to must have some reference to the act of 1901. dismiss the case, Judge McCormick deliver. In United States v. The Peggy, 1 Cranch, ing the opinion of the court, Judge Shelby 103, 109, 2 L. ed. 49, 50, the Chief Justice, dissenting. 42 C. C. A. 623, 102 Fed. 794. delivering the opinion of the court, said:

The case was thereupon brought to this “It is in the general true that the province court upon writ of certiorari, and was sub- of an appellate court is only to inquire mitted for decision at the last term. whether a judgment when rendered was er

After the submission of the case in this roneous or not. But if, subsequent to the court the above part of the war revenue act judgment, and before the decision of the ap

*120

•119

pellate court, a law intervenes and positives 18. A salt brought in the state court to enjoln ly changes the rule which governs, the law the threatened importation of armed men into must be obeyed, or its obligation denied. If

a county where a strike existed, on the ground the law be constitutional, and of that no

that this would amount to a public nuisance

and would endanger the health, morals, peace, doubt in the present case has been expressed,

and good order of the community, is not reI know of no court which can contest its

movable to a United States circuit court, unobligation.” Mills v. Green, 159 U. S. 651, der the act of March 3, 1887, as corrected by 653, 40 L. ed. 293, 16 Sup Ct. Rep. 132; the act of August 13, 1888, as one arising un. New Orleans P'lour Inspectors v. Glover, der the Constitution and laws of the United 160 U. S. 170, 40 L. ed. 382, 16 Sup. Ct. Rep.

States, since, even assuming that the bill 321, 161 U. S. 101, 40 L. ed. 632, 16 Sup. Ct.

shows upon its face that the relief sought

would be incousistent with the power to reguRep. 492.

late cominerce, or with regulations established If the cause had not been submitted in the

by Congress, or with the 14th Amendment, it circuit court of appeals until after the act only demonstrates that the bill cannot be of 1901 took effect, that court, we appre maintained, and not that the cause of action hend, would have dismissed the suit upon

arose uuder the Constitution or laws of the the ground that by the operation of that

United States. legislation the whole subject matter of liti. gation had disappeared, and that the order

[No. 42.] of the railroad commission, even if originally valid, ceased to have any effect. The Submitted October 29, 1901. Decided Dequestion whether the express company or

cember 2, 1901. the shipper was required by the act of 1898 the furnish the required, stamp, as well as A PEELAL from an order of the Circuit sion had any power to make the order of Western District of Arkansas overruling a which complaint is made, would thus have motion to remand the cause to the state become immaterial, and the dismissal of the court. Reversed and remanded, with a di. suit would have resulted without any refer- rection to remand to the state court. ence to the merits of the case as affected by

See same case below, 96 Fed. 353. the act of 1898. *As the order of the circuit court of ap

Statement by Mr. Chief Justice Fullers peals directing the dismissal of the suit ac of Sebastian county, for the district of

This was a bill filed in the circuit court complishes a result that is appropriate in Greenwood, Arkansas, by “The state of Arview of the act of 1901, we need not con: kansas, on the relation of Jo Johnson, prosesider the grounds upon which that court proceeded, or any of the questions deter. cuting attorney for the twelfth judicial cir. mined by it or by the circuit court; and the cuit," against the Kansas & Texas Coal Comjudgment must be affirmed without costs in pany and the St. Louis & San Francisco this court.

Railroad Company, which "for her cause of It is so ordered.

action" alleged that the railroad company was "a corporation organized under the laws

of the state of Missouri, owning and operat(183 U. S. 185)

ing a railroad in the twelfth judicial circuit STATE OF ARKANSAS, Appt.,

of Arkansas and more particularly in Se

bastian county, of said circuit;" that the KANSAS & TEXAS COAL COMPANY and ganized under the laws of the state of Mis

coal company was "a corporation duly or. St. Louis & San Francisco Railroad Com-souri, owning and operating a coal mine in pany.

Huntington, in the Greenwood district of Removal of causes-diverse citizenship-excitement and condition of hot blood now

Sebastian county." "That a high state of state not a citizen-judicial notice--suit prevails between striking miners and their arising under Constitution and laws of sympathizers in large numbers, on the one United States.

side, and said coal company and its em. 1. A sult in a state court between a state and ployees, on the other. That said coal com

foreign corporations is not removable to the pany is threatening and is about to import United States circuit court as a controversy into said county and town of Huntington, between citizens of different states, as a state over the line of their codefendant's railroad, is not a citizen.

a large number of armed men of the low and 2. A United States circult court cannot, on a lawless type of humanity, to wit, about 200,

petition for removal from a state court of a to the great danger of the public peace, sult to enjoin the importation of armed men morals, and good health of said county, and ot Huntington therein, where a strike exists, more particularly of said town. That said take judicial notice, for the purpose of main threatened action on the part of said defendtalning jurisdiction, that such persons could ant, if permitted to be executed, would beonly be brought to Huntington by way of the come a great public nuisance, and would deIndian territory, and that the word "import," story the peace, morals, and good health of as used in the bill, means to bring into from said county and town, and would lead to another state or foreign country, as the court riot, bloodshed, and to the dissemination of than It made it by taking Judicial notice of contagious and infectious diseases." facts which it did not choose to rely on in The bill prayed "that the defendant Kan. Its pleading.

sas & Texas Coal Company, its agents, serv.

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