*105

amount of the business which the party does, and upon the theory that although he makes a charge which everybody else in the same business makes, and which is perfectly reasonable so far as the value of the services rendered to the individuals seeking them is concerned, yet if by the aggregation of business he is enabled to make large profits his charges may be cut down.

law, nor deny to any person within its ju risdiction the equal protection of the laws,' undoubtedly intended, not only that there should be no arbitrary deprivation of life or liberty, or arbitrary spoliation of property, but that equal protection and security should be given to all under like circumstances in the enjoyment of their personal and civil rights; that all persons should be The question thus presented is of pro- equally entitled to pursue their happiness foundest significance. Is it true in this and acquire and enjoy property; that they country that one who by his attention to should have like access to the courts of the business, by his efforts to satisfy customers, country for the protection of their persons by his sagacity in discerning the probable and property, the prevention and redress of courses of trade, and by contributing of his wrongs, and the enforcement of contracts; means to bring trade into those lines, suc- that no impediment should be interposed to ceeds in building up a large and profitable the pursuits of anyone except as applied to business, becomes thereby a legitimate ob- the same pursuits by others under like cirject of the legislative scalping knife? Hav- cumstances; that no greater burdens should ing created the facilities which the many en- be laid upon one than are laid upon others joy, can the many turn around and say, in the same calling and condition, and that you are making too much out of those fa- in the administration of criminal justice no cilities, and you must divide with us your different or higher punishment should be profits? We cannot shut our eyes to well-imposed upon one than such as is prescribed known facts. Kansas is an agricultural to all for like offenses." state. Its extensive and fertile prairies produce each year enormous crops of corn and other grains. While portions of these crops are shipped to mills to be manufactured into meal and flour, it is found by many that there is a profit in feeding them to stock, so that the amount of stock which is raised and fattened in Kansas is large, and makes one of the great industries of the state. Now, shall they whose interests are all along the line of production, having by virtue of their numerical majority the control of leg-churches, libraries, and the property of charislation, be permitted to say to one who acts as an intermediary between transportation and sale, that while we permit no interference with the prices which we put upon our products, nevertheless we cut down your charges for intermediate services; and this, not because any particular charge is unreasonable, but because you are making by the aggregate of those charges too large a sum, and ought therefore to divide with us. The possibility of such legislation suggests the warning words of Judge Catron, afterwards Mr. Justice Catron, of this court, when in Vanzant v. Waddel, 2 Yerg. 262, 270, he said:

And in Bell's Gap R. Co. v. Pennsylvania, 134 U. S. 232, 237, 33 L. ed. 892, 895, 10 Sup. Ct. Rep. 533, 535:

"The provision in the 14th Amendment, that no state shall deny to any person within its jurisdiction the equal protection of the laws, was not intended to prevent a state from adjusting its system of taxation in all proper and reasonable ways. It may, if it chooses, exempt certain classes of property from any taxation at all, such as

itable institutions. It may impose different specific taxes upon different trades and professions, and may vary the rates of excise upon various products; it may tax real estate and personal property in a different manner; it may tax visible property only, and not tax securities for payment of money; it may allow deductions for indebtedness, or not allow them. All such regulations, and those of like character, so long as they proceed within reasonable limits and general usage, are within the discretion of the state legislature, or the people of the state in framing their constitution. But clear and hostile discriminations against* "Every partial or private law which di- particular persons and classes, especially rectly proposes to destroy or affect individ- such as are of an unusual character, unual rights, or does the same thing by afford-known to the practice of our governments, ing remedies leading to similar consequences, is unconstitutional and void. Were this otherwise, odious individuals and corporate bodies would be governed by one rule, and the mass of the community, who made the law, by another."

The 14th Amendment forbids any state to "deny to any person within its jurisdiction the equal protection of the laws." The scope of this prohibition has been frequently considered by this court.

In Barbier v. Connolly, 113 U. S. 27, 31, 28 L. ed. 923, 924, 5 Sup. Ct. Rep. 357, 359, it was said:

"The 14th Amendment, in declaring that no state 'shall deprive any person of life, liberty, or property without due process of

might be obnoxious to the constitutional prohibition. It would, however, be impracticable and unwise to attempt to lay down any general rule or definition on the subject that would include all cases.'

In Gulf, C. & S. F. R. Co. v. Ellis, 165 U. S. 150, 159, 41 L. ed. 666, 669, 17 Sup. Ct. Rep. 255, 258, in which was presented solely the question of classification, we said, referring to many cases, both state and national:

*108

tice Matthews, speaking for this court, in might with much reason complain that the Yick Wo v. Hopkins, 118 U. S. 356, 369, 30 protection of the law was unequal as to L. ed. 220, 226, 6 Sup. Ct. Rep. 1064, 1071: them when they saw eleven men paid in 'When we consider the nature and the theory money for the same service performed for of our institutions of government, the prin- another corporation engaged in a like busiciples upon which they are supposed to rest, ness. Such inequality destroys the law. and review the history of their development, In the instance cited, two of the eleven men we are constrained to conclude that they do might quit the employment of the company not mean to leave room for the play and ac- for which they worked, and by this act alone tion of purely personal and arbitrary power.' make a method of payment by the corporaThe first official action of this nation de- tion lawful which was unlawful while the clared the foundation of government in these eleven were employed. The criminality or words: 'We hold these truths to be self-innocence of an act done ought not to deevident, that all men are created equal, that pend on the happening of such a circumthey are endowed by their Creator with cer- stance. Equal protection of the laws means tain unalienable rights, that among these equal exemption with others of the same are life, liberty, and the pursuit of happi- class from all charges and burdens of every ness.' While such declaration of principles kind. A classification of the kind roay not have the force of organic law, or attempted makes a distinction between corbe made the basis of judicial decision as to porations identically alike in organization, the limits of right and duty, and while in capital, and all other powers and privileges all cases reference must be had to the organic conferred by law. It is arbitrary and wantlaw of the nation for such limits, yet the lat-ing in reason. The act in question is class ter is but the body and the letter of which the former is the thought and the spirit, and it is always safe to read the letter of the Constitution in the spirit of the Declaration of Independence. No duty rests more imperatively upon the courts than the enforcement of those constitutional provisions intended to secure that equality of rights which is the foundation of free government." These authorities are referred to again with approval in Magoun v. Illinois Trust & Sav. Bank, 170 U. S. 283, 42 L. ed. 1037, 18 Sup. Ct. Rep. 594.

But we may, perhaps, come closer to the particular statute when we consider the decisions of the supreme court of Kansas, the state by whose legislature this act was passed. In State v. Haun, 61 Kan. 146, 47 L. R. A. 369, 59 Pac. 340, there was presented for consideration a statute providing for the payment of the wages of laborers in money, coupled with this provision in § 4: "Sec. 4. This act shall apply only to corporations or trusts, or their agents, lessees, or business managers, that employ ten or more persons."

The act was held unconstitutional. After referring to an alleged defect in the title, the court said (p. 152, L. R. A. p. 372, Pac. p. 342): "We have no hesitation in saying that if this statute had, without defect as to title, clearly and in express terms amended corporate charters, retaining the section classifying corporations to which it was applicable by the number of men in their employ, it would be obnoxious to the 14th Amendment to the Constitution of the United States." Again on pp. 153, 154, L. R. A. p. 372, Pac. p. 343:

"The obvious intent of the act is to protect the laborer, and not to benefit the corporation. Why should not the nine employees who work for one corporation be equally protected with the eleven engaged in the same line of employment for another corporation? If such law is beneficial to wage earners in the one instance, why not in the other? The nine men lawfully paid for their labor in goods at a truck store

legislation of the most pronounced character." And in support of these views the court quoted from Cooley's Constiutional Limitations, 5th ed. 484, 486:

"Everyone has a right to demand that he be governed by general rules, and a special statute which, without his consent, singles his case out as one to be regulated by a dif ferent law from that which is applied in all similar cases, would not be legitimate legislation, but would be such an arbitrary mandate as is not within the province of free governments. Those who make the laws are to govern by promulgated, established laws, not to be varied in particular cases, but to have one rule for rich and poor, for the favorite at court and the countryman at plow.' This is a maxim in constitutional law, and by it we may test the authority and binding force of legislative enactments."

So we have the clear declaration of the supreme court of Kansas that legislation by which one individual, or even one set of individuals, is selected from others doing the same business in the same way, and subjected to regulations not cast upon them, is a discrimination forbidden by the constitutional provision which obtains both in the Constitution of Kansas and in that of the United States, to the effect that the equal protection of the laws is guaranteed to all.

May we not rightfully acecpt this declaration of law by the highest tribunal of the state by whose legislature the act in question was passed, and, accepting the reasoning of that decision, does it not follow that, if an act which provides certain regulations for corporations employing ten or more laborers, and leaving corporations employing less than that number free from such regulations, is an unjust discrimination and a denial of the equal protection of the laws, an act which imposes regulations upon corporations doing business over a certain amount, and leaving all corporations doing a like business less than that amount free from such regulations, is equally obnoxious to constitutional prohibition?

111

•110

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 corsay 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 trespassed upon those rights which by the Constitution of the United States are secured to every individual against state action. It has been more than once said judicially that one of the principles upon which this government was founded is that of equality of right. It is emphasized in that clause of the 14th Amendment which prohibits any state to deny to any individual the equal protection of the laws. That constitutional provision does not, it is true, invalidate legislation on the mere ground of inequality in actual result. Tax laws, for instance, in their nature are and must be general in scope, and it may often happen that in their practical application they touch one person unequally from another. But that inequality is something which it is impossible to foresee and guard against, and therefore such resultant inequality in the operation of a law does not defeat its validity. As was said in this court in Merchants' & Mfrs. Nat. Bank v. Pennsylvania, 167 U. S. 461, 463, 42 L. ed. 236, 237, 17 Sup. Ct. Rep. 829, 830:

"If it be said that a lack of uniformity renders the statute obnoxious to that part of the 14th Amendment to the Federal Constitution which forbids a state to 'deny to any person within its jurisdiction the equal protection of the laws,' it becomes important to see in what consists the lack of uniformity. It is not in the terms or conditions expressed in the statute, but only in the possible results of its operation. Upon all bank shares, whether state or national, rests the ordinary state tax of 4 mills. To every bank, state and national, and all alike, is given the privilege of discharging all tax obligations by collecting from its stockholders and paying 8 mills on the dollar upon the par value of the stock. If a bank has a large surplus, and its stock is in consequence worth five or six times its par value, naturally it elects to collect and pay the 3 mills, and thus in fact it pays at a less rate on the actual value of its property than the bank without a surplus, and whose stock is only worth par. So it is possible, under the operation of this law, that one bank may pay at a less rate upon the actual value of its banking property than another; but the banks which do not make this election, whether state or national, pay no more than the regular tax. The result of the election

So, again, exercising the undoubted right of classification it may often happen that some classes are subjected to regulations, and some individuals are burdened with obligations which do not rest upon other classes or other individuals not similarly situated. License taxes are imposed on certain classes of business while others are exempt. It would practically defeat legisla tion if it was laid down as a rule that a statute was necessarily adjudged invalid if it did not bring all within its scope, or subject all to the same burdens. It would strip the legislature of its inherent power to determine generally what is for the general interests, which interests may often be promoted by certain regulations affecting one class which do not affect another, certain burdens imposed on one which do not rest upon another.

But while recognizing to the full extents the impossibility of an imposition of duties and obligations mathematically equal upon all, and also recognizing the right of classification of industries and occupations, we must nevertheless always remember that the equal protection of the laws is guaranteed, and that such equal protection is denied when upon one of two parties engaged in the same kind of business and under the same conditions burdens are cast which are not cast upon the other. There can be no pretense that a stock yard which receives 99 head of cattle per day a year is not doing precisely the same business as one receiving 101 head of cattle per day each year. It is the same business in all its essential elements, and the only difference is that one does more business than the other. But the receipt of an extra 2 head of cattle per day does not change the character of the business. If once the door is opened to the affirmance of the proposition that a state may regulate one who does much business, while not regulating another who does the same but less business, then all significance in the guaranty of the equal protection of the laws is lost, and the door is opened to that inequality of legislation which Mr. Justice Catron referred to in the quotation above made. This statute is not simply legisla tion which in its indirect results affects different individuals or corporations differently, nor with those in which a classification is based upon inherent differences in the char acter of the business, but is a positive and

that this was in effect a suit against the state, or that it was an attempt to interfere with criminal proceedings; that he pleaded several defenses and went into a trial of the merits on a motion for permanent injunction; took part in the taking of an immense amount of testimony and in an argument before the trial judge upon the question of the validity of the statute, and when its validity had been adjudged, then, for the first time and as a preliminary to a final decree to be entered without further testi

direct discrimination between persons engaged in the same class of business, and based simply upon the quantity of business which each may do. If such legislation does not deny the equal protection of the laws, we are unable to perceive what legislation would. We think, therefore, that the principle of the decision of the supreme court of Kansas in State v. Haun, 61 Kan. 146, 47 L. R. A. 369, 59 Pac. 340, is not only sound, but is controlling in this case, and that the statute must be held unconstitutional as in conflict with the equal protec-mony, filed an answer containing a formal tion clause of the 14th Amendment.

quest had been given, and that it would be grossly inequitable, after a full inquiry upon the merits in such court and an adjudication in favor of the validity of the statute, to permit the attorney general by a formal plea of jurisdiction to prevent any review of the merits in this court.

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 statute, and failing to charge reasonable rates. Of the jurisdiction of the court over the consolidated suit as one involving a controversy between the stockholders and the corporation and its officers, no serious question is made. Dodge v. Woolsey, 18 How. 331, 15 L. ed. 401; Hawes v. Oakland, 104 U. S. 450, sub nom. Hawes v. Contra Costa Water Co. 26 L. ed. 827; Pollock v. Farmers' Loan & T. Co. 157 U. S. 429, 39 L. ed. 759, 15 Sup. Ct. Rep. 673; Smyth v. Ames, 169 U. S. 466, 42 L. ed. 819, 18 Sup. Ct. Rep. 418, seem conclusive on the question. There is no force in the suggestion that the of ficers of the corporation agreed with the stockholders as to the unconstitutionality of the statute, and that therefore the suit is a collusive one. That was the condition in Dodge v. Woolsey, 18 How. 331, 15 L. ed. 401, and it only emphasizes the fact that the officers were refusing to protect the interests of the stockholders, not wantonly, it is true, but from prudential reasons.

But the serious contention is that the court had no jurisdiction over the suit as against the attorney general of the state, and this on two grounds: First, because it is in effect a suit against the state, and therefore forbidden by the 11th Amendment to the Federal Constitution; and, secondly, because it is an attempt on the part of a court of equity to restrain criminal proceedings. It is contended on the other hand that it is not a suit against the state, because it does not in any way involve its pecuniary interest, and is only an effort to prevent an officer of the state from putting in force an unconstitutional statute; that it does not attempt to interfere with criminal proceedings, because none have been commenced and none are pending, but involves simply a challenge of the constitutionality of the statute. It is also urged that the attorney general when served with process did not raise either defense; did not suggest

Without expressing any opinion as to the jurisdiction of the court if it had been properly and seasonably challenged, we think the true solution of this matter will be found in reversing the decree upon the merits, and directing a dismissal of the suit as to the attorney general, without prejudice to any other suit or action. It is therefore ordered that the decree of the Circuit Court be reversed, and the case remanded to that court, with instructions to enter a decree in favor of the plaintiffs and against the corporation and its officers, in accordance with the prayer of the bills, and also a decree dismissing the suit as to the attorney general of Kansas, without prejudice to any further suit or action.

Mr. Justice Harlan, with whom concurred Mr. Justice Gray, Mr. Justice Brown, Mr. Justice Shiras, Mr. Justice White and Mr. Justice McKenna:

We assent to the judgment of reversalso far as the merits of this case are concerned-upon the ground that the statute of Kansas in question is in violation of the 14th Amendment of the Constitution of the United States in that it applies only to the Kansas City Stock-Yards Company, and not to other companies or corporations engaged in like business in Kansas, and thereby denies to that company the equal protection of the laws. Upon the question whether the statute is unconstitutional upon the further ground that, by its necessary operation, it will deprive that company of its property without due process of law, we deem it unnecessary to express an opinion.

*116

(183 U. S. 115)

WILLIAM B. DINSMORE and C. Gray | prevent the application by that corporation Dinsmore, and William B. Dinsmore, C. Gray Dinsmore, and Dumont Clarke, as Executors and Trustees under the Will of William B. Dinsmore, Deceased, Petitioners,

War revenue act-express companies-effect of amendatory act.

The exemption of express companies by the amendatory act of March 2, 1901, chap. 806, from the requirement of the war revenue act of June 13, 1898, chap. 448, in relation to adhesive stamps to be placed upon bills of lading, manifests, or other evidences of the receipt of goods for carriage or transportation, requires the affirmance on certiorari, without reference to the merits of the case as affected by the earlier act, of a judgment of the circuit court of appeals affecting the dismissal of a suit to prevent the application by an express company of any of its moneys to meet this requirement.

[No. 136.]

of any of its moneys to meet the requirement of the war revenue act of June 13th, 1898, chap. 448, in relation to adhesive stamps to be placed upon bills of lading, manifests, or other evidences of the receipt of goods for carriage or transportation.

The portion of that act to which the bill referred is the following:

"Express and Freight: It shall be the duty of every railroad or steamboat company, carrier, express company, or corporation, or person whose occupation is to act as such, to issue to the shipper or consignor, or his agent, or person from whom any goods are accepted for transportation, a bill of lading, manifest, or other evidence of receipt and forwarding for each shipment received for carriage and transportation, whether in bulk or in boxes, bales, packages, bundles, shall be duly attached and canceled, as is or not so inclosed or included; and there in this act provided, to each of said bills of lading, manifests, or other memorandum, and to each duplicate thereof, a stamp of the value of one cent: Provided, That but one bill of lading shall be required on bundles or packages of newspapers when inclosed in one general bundle at the time of shipment. Any failure to issue such bill of lading, manifest, or other memorandum, road or steamboat company, carrier, express company, or corporation, or person to a pen

Argued February 25, 1901. Decided No- as herein provided, shall subject such rail

vember 18, 1901.

ON WRIT of Certiorari to the United
States Circuit Court of Appeals for the
Fifth Circuit to review a decision revers-
ing a decree of the Circuit Court for the
Southern District of Georgia which enjoined

the enforcement of an order of the Railroad
Commission of Georgia requiring an express
company to pay the war stamp tax.
firmed.

See same case below, 42 C. C. A. 623,

Fed. 794.

The facts are stated in the opinion. Messrs. William K. Miller and Frank H. Miller for petitioners.

Messrs. Joseph M. Terrell and Fleming G. duBignon for respondents.

*Mr. Justice Harlan delivered the opinion

of the court:

alty of fifty dollars for each offense, and no such bill of lading, manifest, or other mem

orandum shall be used in evidence unless it shall be duly stamped as aforesaid." 30 Stat. at L. 448, 459, chap. 448.

After the passage of the above act comthe railroad commission of that state to the plaint was made by citizens of Georgia to Af-effect that the defendant express company 102 required shippers or consignors to supply the requisite stamps for bills of lading or receipts given to them. The commission thereupon, July 11th, 1898, ordered that the Southern Express Company appear before there to show cause, if any it can, why it it on the 18th day of July, 1898, "then and should not be held to have violated the rules exactions or overcharges, as aforesaid, and and regulations of this commission by the 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, in the circuit court of the United States for the southern district of Georgia against the Southern Express Company, a corporation of Georgia having its principal place of business in that state, and also against L. N. Trammell, Thomas C. Crenshaw, and Spencer R. Atkinson, constituting the Railroad Commission of Georgia, and Joseph M. Terrell, Attorney General of Georgia, the individual defendants being citizens of Georgia.

The plaintiffs sued as owners and holders of shares of stock in the defendant express company, and sought a decree that would

The company appeared and denied the jurisdiction of the commission. But on August 2d, 1898, the commission, after hearing the parties, ordered that the required stamp be supplied by the express company, and not by shippers in whole or in part.

Appropriate allegations having been made to show that the suit was not a collusive one to confer on a court of the United States jurisdiction of the case, of which it would not otherwise have cognizance, the relief asked was

That it be adjudged and decreed that the order of the railroad commission of the state of Georgia of August 2d, 1898, requir