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United States, to the effect that the equal rests the ordinary state tax of 4 mills. To protection of the laws is guaranteed to all. every bank, state and national, and all alike, May we not rightfully acecpt this decla- is given the privilege of discharging all tax ration of law by the highest tribunal of the obligations by collecting from its stockhold-[111] state by whose legislature the act in ques- ers and paying 8 mills on the dollar upon tion was passed, and, accepting the reason- the par value of the stock. If a bank has ing of that decision, does it not follow that, a large surplus, and its stock is in conseif an act which provides certain regulations quence worth five or six times its par value, for corporations employing ten or more naturally it elects to collect and pay the 3 laborers, and leaving corporations employ- mills, and thus in fact it pays at a less rate ing less than that number free from such on the actual value of its property than the regulations, is an unjust discrimination and bank without a surplus, and whose stock is a denial of the equal protection of the laws, only worth par. So it is possible, under an act which imposes regulations upon cor- the operation of this law, that one bank may porations doing business over a certain pay at a less rate upon the actual value of amount, and leaving all corporations doing its banking property than another; but the a like business less than that amount free banks which do not make this election, from such regulations, is equally obnoxious whether state or national, pay no more than to constitutional prohibition? the regular tax. The result of the election [110] *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,

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 legislation 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 extent the impossibility of an imposition of duties and obligations mathematically equal *upon[112] 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 | is in effect a suit against the state, and business than the other. But the receipt therefore forbidden by the 11th Amendment 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 legislation 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 character of the business, but is a positive and 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 protection clause of the 14th Amendment.

There yet remains a question of jurisdiction. The two suits which were consolidated were each brought by a stockholder in behalf of himself and all other stockholders against the corporation, its officers, and also the attorney general of the state of Kansas. The object of the suits was to restrain the attorney general from putting in force the [113] statute, and the "defendants from reducing the funds of the corporation, and therefore the dividends to the stockholders, by yielding 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 officers 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

to the Federal Constitution; and, secondly,
because it is an attempt on the part of a
court of equity to restrain criminal proceed-
ings. It is contended on the other hand
that it is not a suit against the state, be-
cause 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 com-
menced and none are pending, but involves
simply a challenge of the constitutionality
of the statute. It is also urged that the ut-
torney general when served with process did
not raise either defense; did not suggest
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 injune-
tion; took part in the taking of an immense
amount of testimony and in an argument be-
fore the trial judge upon the question of
the validity of the *statute, and when its [114]
validity had been adjudged, then, for the
first time and as a preliminary to a final
decree to be entered without further testi-
mony, filed an answer containing a formal
plea that the suit was one in effect against
the state. It is further contended that by
the statutes of Kansas (Kan. Comp. Laws
1879, p. 901, § 5589) the governor may re-
quire the attorney general to appear for the
state in any court and prosecute or defend
therein any cause or matter, civil or crim-
inal, in which the state may be a party or
interested, and that while no request from
the governor was shown the trial court was
justified, in the absence of some challenge of
its jurisdiction, in assuming that such re-
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.

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 reversal

Bo 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 [115] 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.

WILLIAM B. DINSMORE and C. Gray Dinsmore, and William B. Dinsmore, C. Gray Dinsmore, and Dumont Clarke, as Executors and Trustees under the Will of William B. Dinsmore, Deceased, Petitioners,

v.

SOUTHERN EXPRESS COMPANY, L. N. Trammell, Thomas C. Crenshaw, Jr., and Spencer R. Atkinson, Composing the Railroad Commission of the State of Georgia, et al.

(See 8. C. Reporter's ed. 115-121.) 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 ad

hesive stamps to be placed upon bills of lad

ing, 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 effecting the dismissal of a suit to prevent the application by an express company of any of its moneys to meet this requirement.

[No. 136.]

Mr. Frank H. Miller argued the cause and filed a brief for petitioners. Mr. William K. Miller also argued the cause for petitioners.

Mr. Joseph M. Terrell argued the cause and filed a brief for respondent, the Railroad Commission of Georgia.

Mr. Fleming duBignon filed a statement for respondent, the Southern Express Company, in response to notice of application for writ of certiorari.

*Mr. Justice Harlan delivered the opinion[116] of the court:

William B. Dinsmore and others, citizens of New York,-some of them being executors and trustees under the will of the late William B. Dinsmore of that state,-brought 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 Geor-. gia.

The plaintiffs sued as owners and holders of shares of stock in the defendant express company, and sought a decree that would prevent the application by that corporation of any of its moneys to meet the require ment 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.

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

"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,

Argued February 25, 1901. Decided No- or not so inclosed or included; and there vember 18, 1901.

shall be duly attached and canceled, as is in this act provided, to each of said bills of N WRIT of Certiorari to the United lading, manifests, or other memorandum,

O`States Circuit Court of Appeals for the and to each duplicate thereof, a stamp of

Fifth Circuit to review a decision reversing 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. Affirmed.

See same case below, 42 C. C. A. 623, 102 Fed. 794.

The facts are stated in the opinion.

NOTE.-On the effect of statutes to defeat or preserve pending civil actions-see Pritchard v. Savannah Street & Rural Resort R. Co. (Ga.) 14 L. R. A. 721, and note. And see note to United States v. Tynen, 20 L. ed. U. S. 153.

the value of one cent: Provided, That but [117] 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, as herein provided, shall subject such railroad or steamboat company, carrier, express company, or corporation, or person to a penalty of fifty dollars for each offense, and no such bill of lading, manifest, or other memorandum 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 com

plaint was made by citizens of Georgia to
the railroad commission of that state to the
effect that the defendant express company
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
it on the 18th day of July, 1898, "then and
there to show cause, if any it can, why it
should not be held to have violated the rules
and regulations of this commission by the
exactions or overcharges, as aforesaid, and
why suit should not be instituted against it
in every case of such overcharges for the
recovery of the penalty provided by law for
such illegal act."

are hereby, enjoined from any and all order, direction, action, or legal steps instituting or tending to institute, and from any and all proceedings for the recovery of the penalties named in the statute of Georgia in that behalf to enforce compliance with its said order against the Southern Express Company, its officers or agents, as threatened in the order of said commission, dated August 2, 1898, for the reason that said order is null and void, and said commission has no jurisdiction to adjudge and designate the party who shall pay said tax." The court in its opinion said: "It is not deemed necessary to enjoin the attorney general, for it is presumed that the eminent lawyer who is the official head of the bar of the state will, without such injunction, accord all appropriate respect to the decision of the

The company appeared and denied the ju-
risdiction of the commission. But on Au-
gust 2d, 1898, the commission, after hear-court."
ing 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 collu
sive one to confer on a court of the United
States jurisdiction of the case, of which it
would not otherwise have cognizance, the re-
lief asked was-

That it be adjudged and decreed that the order of the railroad commission of the state of Georgia of August 2d, 1898, requiring the express company to pay the amount of the war revenue tax on business from one point to another in the state without endeavoring to collect the same from shippers, or requiring them to make the payment (118 thereof before the issuing of receipts or bills of lading, was unconstitutional, null, and void; that the express company, its officers and agents, be restrained from voluntarily complying with the order of the commission of August 2d, 1898, and paying such tax; that the attorney general of the state be restrained from instituting any suit against the express company for the purpose of enforcing the provisions of the above order of the ailroad commission; that a perpetual injunction, of the same purport, tenor, and effect be granted to complainants; and that the plaintiffs have such other and further relief in the premises as the nature of the case required and to a court of equity might

'seem n.cet.

The railroad commissioners and the attorney general of the state severally demurred to the bill. The case having been argued upon the demurrers, Judge Speer delivered an opinion which is reported in 92 Fed. 714.

That opinion was accompanied by the following order, entered March 7th, 1899: "It is now upon consideration ordered, adjudged, and decreed that the prayer that the Southern Express Company be enjoined from voluntarily paying the war stamp tax in question be, and the same is hereby, denied; ordered. adjudged, and decreed further that the defendants, the Railroad Commission of Georgia, and each member thereof, to wit, the individual defendants, Leander N. Tranımell. Thomas C. Crenshaw, Jr., and Spencer R. Atkinson, be, and the same

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*Upon appeal to the circuit court of ap-[119] peals the decree of the circuit court was reversed, June 7th, 1900, with directions to dismiss the case, Judge McCormick delivering the opinion of the court, Judge Shelby dissenting. 42 C. C. A. 623, 102 Fed. 794.

The case was thereupon brought to this court upon writ of certiorari, and was subImitted for decision at the last term.

After the submission of the case in this court the above part of the war revenue act of 1898 relating to stamps to be attached to bills of lading, manifests, etc., was amended in important particulars by an act of Congress approved March 2d, 1901, chap. 806. One amendment, which took effect on and after July 1st, 1901, provided that the above part of the act of 1898 should be amended to read as follows:

"Freight: It shall be the duty of every railroad or steamboat company, carrier, or corporation, or person whose occupation is to act as such, except persons, companies, or corporations engaged in carrying on a local or other express business, 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, or not so inclosed or included; and there shall be duly attached and canceled, as is 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, as herein provided, shall subject such railroad or steamboat company, carrier, or corporation, or person to a penalty of fifty dollars for each offense, and no such bill of lading, manifest, or other memorandum shall be used in evidence unless it shall be duly stamped as aforesaid." 31 Stat. at L. 938, 945, chap. 806.

This change in the law renders it unnecessary to consider any of the important

v.

MERCHANTS' LOAN & TRUST COM-
PANY of Chicago, Illinois.

(See S. C. Reporter's ed. 121-129.) Appeal-agreed statement when equivalent of special finding—question for review.

questions determined in the circuit court | E. T. WILSON, Receiver of the First Naand circuit court of appeals under the act tional Bank of Helena, Montana, Piff. in of 1898. The object of this suit was to pre- Err., [120]vent the enforcement of the order of the railroad commission based upon its construction of that act. But whatever might be now held as to the meaning and scope of the act of 1898 as applied to express companies, the amendatory statute of 1901, in declaring what companies, corporations, and persons shall attach the required stamp to bills of lading, manifests, and receipts for goods or other property to be transported, distinctly excludes express companies. So that no actual controversy now remains or can arise between the parties. The plaintiffs do not need any relief, because the act of 1901 accomplishes the result they wished. Although this cause was determined in the circuit court of appeals and was submitted here prior to July 1st, 1901, our judgment must have some reference to the act of 1901. In United States v. The Peggy, 1 Cranch, 103, 109, 2 L. ed. 49, 50, the Chief Justice, delivering the opinion of the court, said: "It is in the general true that the province of an appellate court is only to inquire Argued October 29, 30, 1901. Decided Decemwhether a judgment when rendered was erroneous or not. But if, subsequent to the

An agreed statement of facts cannot be taken as the equivalent of a special finding of facts, within the meaning of U. S. Rev. Stat. §§ 649, 700, providing for a waiver of trial by jury and the proceedings on a trial by the court, so that an exception to a general finding of the court upon such statement will bring up a question for review, where such agreed statement contains, in addition to certain ultimate facts, other evidential facts from which a material ultimate fact might be inferred, but which is not agreed upon or found.

[No. 67.]

ber 2, 1901.

'N ERROR to the United States Circuit

judgment, and before the decision of the ap Court of Appeals for the Seventh Cir

pellate court, a law intervenes and positively changes the rule which governs, the law must be obeyed, or its obligation denied. If the law be constitutional, and of that no doubt in the present case has been expressed, I know of no court which can contest its obligation." Mills v. Green, 159 U. S. 651, 653, 40 L. ed. 293, 16 Sup Ct. Rep. 132; New Orleans Flour Inspectors v. Glover, 160 U. S. 170, 40 L. ed. 382, 16 Sup. Ct. Rep. 321, 161 U. S. 101, 40 L. ed. 632, 16 Sup. Ct. Rep. 492.

If the cause had not been submitted in the circuit court of appeals until after the act of 1901 took effect, that court, we apprehend, would have dismissed the suit upon the ground that by the operation of that legislation the whole subject-matter of litigation had disappeared, and that the order of the railroad commission, even if originally valid, ceased to have any effect. The question whether the express company or the shipper was required by the act of 1898 to furnish the required stamp, as well as the question whether the railroad commission had any power to make the order of which complaint is made, would thus have become immaterial, and the dismissal of the suit would have resulted without any reference to the merits of the case as affected by the act of 1898. 121] As the order of the circuit court of appeals directing the dismissal of the suit accomplishes a result that is appropriate in view of the act of 1901, we need not consider the grounds upon which that court proceeded, or any of the questions determined by it or by the circuit court; and the judgment must be affirmed without costs in this court.

It is so ordered. 183 U. S.

U. S., Book 46.

cuit to review a judgment affirming a judg ment of the District Court of Illinois in favor of defendant in an action to enforce an assessment upon shareholders in a national bank. Affirmed.

See same case below, 39 C. C. A. 231, 98 Fed. 688.

The facts are stated in the opinion. Mr. Delevan A. Holmes argued the cause, and, with Mr. W. E. Mason, filed a brief for plaintiff in error:

The judgment and finding of the court amount to no more than a declaration that the court found the law to be in favor of defendant on the case as stated.

Wayne County v. Kennicott, 103 U. S. 554, 26 L. ed. 486.

If there is an agreed statement of facts submitted to the trial court and upon which its judgment is formed, such agreed statement of facts will be taken as the equivalent of a special finding of fact.

373, 13 Sup. Ct. Rep. 481.

Lehnen v. Dickson, 148 U. S. 71, 37 L. ed.

its wherever and whenever the record places A case is entitled to review upon the merthe appellate tribunal in the same position as to the facts as the trial court, and with all the information touching the questions involved, that the trial court had at the time of entering the judgment complained of.

United States v. Eliason, 16 Pet. 292, 10 L. ed. 969; Stimpson v. Baltimore & S. R. Co. 10 How. 329, 13 L. ed. 441; Suydam v. Williamson, 20 How. 427, 15 L. ed. 978.

Mr. John N. Jewett argued the cause and filed a brief for defendant in error:

The duty and responsibility of determinNOTE.-On review of judgment rendered on agreed statement of facts-see note to Stimpson v. Baltimore & S. R. Co. 13 L. ed. U. S. 442. 113

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