and granted by the state under the acts approved March 2, 1854, and December 3, 1858." This is an effort to subrogate the new railroad to the rights and privileges of the former one, but its language contains an implied admission that, without such subrogation, the rights and privileges of the former company had lapsed, and that a new act was necessary to revive them. But if the [71]act be considered as a *revival of the rights and privileges which had formerly belonged to the old company, such rights and privileges would be subordinated to the provisions of the new Constitution of 1869, which in the meantime had been adopted. Planters' F. & M. Ins. Co. v. Tennessee use of Memphis, 161 U. S. 193, 198, 40 L. ed. 667, 668, 16 Sup. Ct. Rep. 466. In addition to all this, however, the better opinion is that a subrogation to the "rights and privileges" of a former corporation does not include an immunity from taxation. Phoenix F. & M. Ins. Co. v. Tennessee, 161 U. S. 174, 40 L. ed. 660, 16 Sup. Ct. Rep. 471.

four years prior to this charter, as settling the proper construction of these sections of the Constitution. Indeed, counsel stipulate that the stockholders invested their money in reliance upon this adjudication. The Mississippi Mills were chartered in 1871 for the purpose of manufacturing cotton and woolen fabrics, and in 1872 an act was passed, of which the Mississippi Mills were subsequently given the benefit, providing that all taxes upon the property of said company should be applied to the payment of debts which the company had incurred in the construction of their factory. In 1877 this act was so far amended as to be substantially repealed; and in 1878 the company filed a bill in chancery against the tax collector, setting up the acts of 1872 and 1873 as constituting a contract with the company, and alleging that the act of 1877 impaired the obligation of such contract, and was in violation of the Constitution of the United States.

The bill was held not to be maintainable, the court deciding:

We are unable to see that there is anything in this legislation to indicate that the (1) That it was not intended by § 13 of plaintiff company stands in a position to es- article 12 of the Constitution to confer cape the application of the Constitution of power on the legislature to tax the property 1869. Indeed, it seems to us entirely clear of corporations, because that existed withthat the injection of the charter of 1850-out this section as an inherent legislative 1854 into this case was a mere after-power. thought; and that the charter upon which (2) That the property of the corporations the plaintiff must rely is that of 1882, set forth in this bill; and that such charter must be construed in subordination to the Constitution of 1869, which we now proceed to consider.

3. The only provisions of the Constitution pertinent to this case are the following sections of article 12:

"Sec. 13. The property of all corporations for pecuniary profit shall be subject to taxation the same as that of individuals.

"Sec. 20. Taxation shall be equal and uniform throughout the state. All property shall be taxed in proportion to its value, to be ascertained as directed by law."

mentioned was declared to be subject to taxation, that is, liable to taxation, the same as that of individuals, but it was not necessarily to be subjected to taxation. Since overruled in Adams v. Yazoo & M. Valley R. Co. 77 Miss. 194, 28 So. 956.

(3) That any legislative act, "whether it be a charter or other form of law, which says it shall be exempt, and not subject to taxation, is in conflict with the Constitution." But that the legislature might excmpt property of a certain class, whether the owners were corporations or natural persons, but corporate property could never be placed beyond the reach of the taxing pow

As it is not altogether clear from the lan-er. "It may not be taxed, but it must be guage of these sections whether it was competent for the legislature to grant to a railroad company an exemption from taxation, it is conceded by both sides to this controversy that we are bound to look to the decisions of the supreme court of Mississippi at the time this charter was granted, for their proper interpretation. Douglass v. Pike County, 101 U. S. 677, 25 L. ed. 968. While the question of contract or no contract in a particular case is one which must be determined by ourselves, every such alleged contract is presumed to have been entered into upon the basis and in contem- (4) That it followed from this that it plation of the existing Constitution and was competent for the legislature to modify statutes, and upon the established construc- or repeal the act of 1872, and that the retion theretofore put upon them by the high-pealing act of 1877 was constitutional, and [72]est judicial authority of the state. Taylor operated as a repeal of the exemption. This v. Ypsilanti, 105 U. S. 60, 26 L. ed. 1008; was reaffirmed in Attala County Supers. v. Wade v. Travis County, 174 U. S. 499, 509, Kelly, 68 Miss. 40, 8 So. 376; Natchez, J. & 43 L. ed. 1060, 1064, 19 Sup. Ct. Rep. 715, C. R. Co. v. Lambert, 70 Miss. 779, 13 So. and cases cited.

ever liable. It need not be subjected, but
it must always be subject, to taxation, *the[73]
same as that of individuals, for the Consti-
tution so declares. The provision is man-
datory as to universal liability to be taxed,
but permissive to the legislature to tax the
property of such corporations, or exempt it,
as it may see proper, in common with the
property of individuals, which may be taxed
or not for the time being." See also Vicks-
burg Bank v. Worrell, 67 Miss. 47, 7 So.
219; Natchez, J. & C. R. Co. v. Lambert, 70
Miss. 779, 13 So. 33.

33.

We are referred to the case of Mississippi | (5) In a concurring opinion, delivered by Mills v. Cook, 56 Miss. 40, decided in 1878, the chief justice, he held that, if the exemp

tion were granted in the form of a contract | sequent statute, is one which turns upon in the charter, it was prohibited. the construction of a state law, and is not Although the decision of the case was put reviewable here, although if the exemption upon the ground that the exemption from were irrepealable, and thus constituted a taxation contained in the acts of 1872 and contract, it would be our duty to decide for 1873 was a mere bounty and subject to re- ourselves whether the subsequent act had peal by the legislature, the report would repealed it or impaired its obligation. The seem to indicate the opinion of the court to only contract relied upon is one exempting have been that no exemption was valid which the property of a particular corporation was contained in the charter of particular from taxation for a certain number of years; corporation (a question not necessarily in a contract which, in the light of the state volved); but whether this be so or not, it is Constitution and the prior decisions of the entirely clear that the court intended to de- state courts, must be read as if it contained cide that, under the Constitution of 1869, a proviso that the legislature might in the any exemption granted by the legislature meantime alter, amend, or repeal the act. was a mere bounty and subject to repeal. Hence, as the legislature is left entirely free Under this construction of the Constitu- to act upon the subject,*no subsequent legis-[75] tion it becomes unnecessary to decide wheth-lation could possibly impair the obligation er the exemption contained in the charter of of the contract, if such exemption can be 1882 be void or not, since, as it appears by called a contract at all. If no statute could the certificate of the chief justice, the deci- impair it, it goes without saying that none sion of the court below was put upon the did impair it. If, then, the decision of the ground that the subsequent legislation, and supreme court, that the legislature had in particularly the Annotated Code of 1892, fact repealed the exemption, was right, the which was construed by the court as repeal-railroad company cannot complain, since the ing the exemption in the charter, was con- legislature had done no more than it had a stitutional and valid. Indeed, counsel for right to do. If, upon the other hand, we the collector, in their brief, expressly dis- should be of opinion that the supreme court claim any reliance upon the position that was wrong in holding the exemption rethe exemption in this case was originally pealed, such exemption would be abrogated, unconstitutional and void, putting their case not by the act of 1892, but by an erroneous expressly upon the ruling of the supreme construction of that act. Our only authoricourt that such exemption had been re- ty to review the action of the state courts in pealed. this class of cases under Rev. Stat. § 709, arises when the validity of a state statute is drawn in question on the ground of its being repugnant to the Constitution of the United States, and the decision is in favor of its validity. Now, if the statute adjudged to be valid does not impair the obligation of any contract, it is not repugnant to the Constitution. It is the fact that the act, as construed by the supreme court, impairs the obligation of a contract that gives us jurisdiction, and if there be in the act of 1882 no contract that can be impaired by subsequent legislation, it is of no consequence that the supreme court may have given it a wrong construction. "Before we can be asked to determine whether a statute has impaired the obligation of a contract, it should appear that there was a legal contract subject to impairment, and some ground to believe that it has been impaired." New Orleans v. New Orleans Waterworks Co. 142 U. S. 79, 88, 35 L. ed. 943, 946, 12 Sup. Ct. Rep. 142. Indeed the whole foundation of our jurisdiction in this class of cases must rest upon a contract which cannot be legally impaired.

[74] *Holding, then, as we do, that the exemption was subject to repeal, it only remains to consider whether the Code of 1892 did in fact repeal and abrogate it. In this connection the state relies upon § 3744 of the Annotated Code of 1892, which declares that "following property, and no other, shall be exempt from taxation, to wit." Here follows a list of some twenty classes of property, among which, however, railroads are not included. If an exemption under a special act be repealed by the words "and no other," contained in a general act declaring what property shall be exempt from taxation, it would follow that this exemption was repealed by the Code of 1892, and the pinciple applied in Louisville Water Co. v. Clark, 143 U. S. 1, 11, 36 L. ed. 55, 57, 12 Sup. Ct. Rep. 346, would also be applicable here. The railroad company, however, insists that its rights are saved by § 8 of the same Code, which declares that "private and local laws not revised and brought into this Annotated Code are not affected by its adoption, unless it be expressly so provided herein." There being no such express provision in the Code respecting the act of 1882, it is insisted that the exemption contained in that act is saved. The supreme court, how-essary operation, it gives effect to some proever, seems to have held, as it had already done with respect to a similar section in the Code of 1880 (Adams v. Yazoo & M. Valley R. Co. 77 Miss. 317, 28 So. 956), that the exemption was not saved.

We do not find it necessary to pass upon the soundness of this conclusion, as we are of opinion that the question whether the ruling of the supreme court, that a repealable exemption has been in fact repealed by a sub

This court has repeatedly held that we cannot revise the judgment of the highest court of a state unless, by its terms or necvision of a state Constitution or law which, as thus construed, impairs the obligation of a precedent contract. In Mississippi & M. R. Co. v. Rock, 4 Wall. 177, 181, 18 L. ed. 381, 382, this court pronounced it a “fundamental error that this court can, as an appellate tribunal, reverse the decision of a state court, because that court may hold a contract to be void which this court might[76] hold to be valid." So, too, in Knox v. Ex

change Bank, 12 Wall. 379, 383, 20 L. ed. | tion in the charter of the Wilmington & 414, 415, it was said by Mr. Justice Miller: Raleigh Railway Company, of "the proper"But we are not authorized by the judiciary ty of said company and the shares therein,” act to review the judgments of the state from taxation, was decided to extend to a courts because their judgments refuse to give tax upon the franchise and rolling stock. effect to valid contracts, or because those In delivering the opinion of this court, Mr. judgments, in their effect, impair the obli- Justice Davis observed: "It is insisted, gation of contracts. If we did, every case however, that the tax on the franchise is decided in a state court could be brought something entirely distinct from the prophere, when the party setting up a contract erty of the corporation, and that the legisalleged that the court had taken a different lature, therefore, was not inhibited from view of its obligation to that which we held." taxing it. This position is equally unsound To the same effect are Lehigh Water Co. v. with the others taken in this case. Nothing Easton, 121 U. S. 388, 392, 30 L. ed. 1059, is better settled than that the franchise of a 7 Sup. Ct. Rep. 916, and New Orleans Water-private corporation-which in its applicaworks Co. v. Louisiana Sugar Ref. Co. 125 U. S. 18, 30, 31 L. ed. 607, 612, 8 Sup. Ct. Rep. 741. In the latter case it is said by Mr. Justice Gray: "In order to come with in the provision of the Constitution of the United States which declares that no state shall pass any law impairing the obligation of contracts, not only must the obligation of a contract have been impaired, but it must have been impaired by a law of the state. The prohibition is aimed at the legislative power of the state, and not at the decisions of its courts, or the acts of administrative or executive boards or officers, or the doings of corporations or individuals." See also Central Land Co. v. Laidley, 159 U. S. 103,

109, 40 L. ed. 91, 93, 16 Sup. Ct. Rep. 80. We are therefore of opinion that we cannot review the action of the state court in holding this exemption to have been repealed.

4. A single point with regard to the privi lege taxes included in the assessment sought to be enjoined remains to be considered. By § 18 of the company's charter of 1882 it was declared "that such company, its stock, its railroad and appurtenances, and all its property in this state necessary or incident to the full exercise of all the powers herein granted, shall be exempt from taxation for a term of twenty years from the passage of this act." This undoubtedly implies an exemption from privilege as well as ad valorem taxes, and such has been the construction given to it by the supreme court of Mississippi. Grand Gulf & P. G. R. Co. . v. Buck, 53 Miss. 246.

But, as we have already held, this section must be construed as subservient to § 13, ar[77]ticle 12 of the Constitution of *1869, providing that "the property of all corporations for pecuniary profit shall be subject to taxation." Now, if privilege taxes are taxes upon the property of corporations, an exemption from such taxes was subject to repeal as much as we have already held an exemption of ad valorem taxes to be.

Whatever may have been the fluctuations of opinion upon this subject, and it is not to be denied that there are many cases in the state courts holding that a privilege tax is not a tax upon property, the law in this court, so far as concerns railway franchises, must be deemed to have been settled by the case of Wilmington & W. R. Co. v. Reid, 13 Wall. 264, 20 L. ed. 568, in which an exemp

tion to a railroad is the privilege of running
it and taking fare and freight-is property,
and of the most valuable kind, as it cannot
be taken for public use even without com-
pensation. It is true it is not the same sort
of property as the rolling stock, roadbed,
and depot grounds, but it is equally with
them covered by the general term 'the prop-
erty of the company,' and therefore equally
within the protection of the charter."
the same effect are Adams Exp. Co. v. Ohio
State Auditor, 165 U. S. 195, 41 L. ed. 683,
17 Sup. Ct. Rep. 305, and Veazie Bank v.
Fenno, 8 Wall. 533, 547, 19 L. ed. 482, 487.

To

This also appears to be the law in Missis-
Sippi. Coulson v. Harris, 43 Miss. 728;
Drysdale v. Pradat, 45 Miss. 445.

507, 534, 12 L. ed. 535, 546, the franchise of
In West River Bridge Co. v. Dix, 6 How.
a bridge company was held to be property
eminent domain. See also Monongahela
subject to condemnation under the law of
Nav. Co. v. United States, 148 U. S. 312, 37
L. ed. 463, 13 Sup. Ct. Rep. 622; Spring
Valley Waterworks v. Schottler, 62 Cal.[78]
Conn. 103, 125; Porter v. Rockford, R. I. &
110: Nichols v. New Haven & N. Co. 42
St. L. R. Co. 76 Ill. 561, 574; State ex rel.
Milwaukee Street R. Co. v. Anderson, 90
Wis. 561, 63 N. W. 746; Richmond & D. R.

Co. N. C. Div. v. Brogden, 74 N. C. 707.

It follows, then, that privilege taxes, being taxes upon property, are subject to the

constitutional limitations of 1869, and their exemption was equally repealable as that of ad valorem taxes.

The railroad company also calls attention to § 181 of the Constitution of 1890, by virtue of which "exemptions from taxation to which corporations are legally entitled at the adoption of this Constitution shall remain in full force and effect for the time of such exemptions as expressed in their respective charters, or by general laws, unless sooner repealed by the legislature." The words "sooner repealed" in this section apparently refer to a repeal before the expiration of the exemption under their respective charters, and as the supreme court has held that the exemption in this case was repealed by the Annotated Code of 1892 the company can gain no additional advantage by this section. Adams v. Tombigbee Mills, 78 Miss. 676, 29 So. 470.

Inasmuch as the statute in question could not, and in the opinion of supreme court did

[79] *CARLES U. COTTING and Francis Lee Argued November 14, 15, 1899. Ordered for

As to constitutionality of statutes restricting to the length of their lines is also sustained ing contracts and business-see note to State v. Loomis (Mo.) 21 L. R. A. 789.

But the fact that a statute gives a railroad commission, in addition to the authority to reA legislative classification of railroads for vise tariffs, the power, for undisclosed reasons

of other stockholders having a like interest, | Thayer there was the following order, which who might thereafter join in the prosecu- was also embodied in the final decree: tien thereof. The main purpose of the suits "The great importance of the questions was to have declared invalid a certain act involved in these cases will doubtless occaof the legislature of the state of Kansas ap-sion an appeal to the Supreme Court of the proved March 3, 1897, entitled "An Act De- United States, where they will be finally fining What shall Constitute Public Stock settled and determined. If, on such appeal, [80] Yards, Defining the Duties of the Person or the Kansas statute complained of should be Persons Operating the Same, and Regulat- adjudged invalid for any reason, and in the ing All Charges thereof, and Removing Re- meantime the statutory schedule of rates strictions in the Trade of Dead Animals, should be enforced, the stock-yards comand Providing Penalties for Violations of pany would sustain a great and irreparable This Act." loss. Under such circumstances, as was said A temporary restraining order was in substance by the Supreme Court in Hovey granted, and subsequently a motion for av. McDonald, 109 U. S. 161, 27 L. ed. 891, preliminary injunction was made. Pend- 3 Sup. Ct. Rep. 136, it is the right and duty ing that motion the court appointed a special master, with power to take testimony and report the same, with his findings, as to all matters and things in issue upon the hearing of the preliminary injunction prayed for. 79 Fed. 679. On August 24, 1897, the special master filed his report. On October 4, 1897, the motion for a preliminary injunction was heard on affidavits, the master's report, exceptions thereto on behalf of both parties, and arguments of counsel. The motion was refused and the restraining order, which had remained in force in the meantime, was set aside. 82 Fed. 839.

A stipulation was thereupon entered into that the defendants should forthwith file their answers to the bills; that replications thereto should be immediately filed; and that the cases thus put at issue should be heard on final hearing, upon the pleadings, proofs, master's report, and exhibits, without further testimony from either party.

On October 28, 1897, after argument, the court dismissed the bills of complaint. 82 Fed. 850. In the opinion of Circuit Judge' and without accountability to anyone, to give better rates to one corporation than to another, is held to make the statute unconstitutional. Louisville & N. R. Co. v. Railroad Commission, 19 Fed. 679.

of the trial court to maintain, if possible,
the status quo pending an appeal, if the
questions at issue are involved in doubt, and
equity rule 93 was enacted in recognition of
that right. The court is of opinion that the
cases at bar are *of such moment and the [81]
questions at issue so balanced with doubt
as to justify and require an exercise of the
power in question. Therefore, although the
bills will be dismissed, yet an order will at
the same time be entered restoring and con-
tinuing in force the injunction which was
heretofore granted for the term of ten days,
and if in the meantime an appeal shall be
taken such injunction will be continued in
mined in the Supreme Court of the United
force until the appeal is heard and deter-
States; provided that, in addition to the or-
dinary appeal bond, the Kansas City Stock-
Yards Company shall make and file in this
court its bond in the penal sum of $200,000,
payable to the clerk of this court and his
successors in office, for the benefit of whom
it may concern, conditioned that in the
event the decree dismissing the bills is
affirmed it will, on demand, pay to the party
or parties entitled thereto all overcharges
merely inflicting à single penalty for a single
offense, but placing the guilty railroad at the
disadvantage of having a lower rate than its
rivals, and depriving it of the equal protec-
tion of the laws. It cannot be just, it cannot
be an equality of right or of protection, for an
act to be unlawful if done by one railroad in
Kentucky, and perfectly lawful if done by an-
other railroad in the same state."

So, the fact that a statute regulating railroad rates burdens railroad corporations with pains and penalties not imposed on other persons operating railroads in competition with the corporations is held to make an unconstitutional discrimination against the corporations. Louisville & N. R. Co. v. Railroad Commission, 19 Fed. 679.

A somewhat similar objection to the Kentucky act of March 10, 1900, to prevent railroad companies from charging extortionate rates, was relied upon in Louisville & N. R. Co. v. McChord, 103 Fed. 216 (Reversed on other grounds in McChord v. Cincinnati, N. O. & T. P. R. Co. 183 U. S. 483, post, -), as a reason for enjoining, pendente lite, its threatened enforcement. This act, inter alia, provided that when complaint should be made to the railroad commission that a railroad had charged extortionate rates, or the commission had reason to believe such rates were being charged, it should hear and Elevator owners are not deprived of the determine the matter, and if it found that the equal protection of the laws by a statute regucompany had been guilty of extortion it should lating elevator charges in places having a popufix a just and reasonable rate, which the com-lation of 130,000 or more. Budd v. New York, pany should not exceed under a heavy penalty. 'The court said: "If one railroad should be convicted by the commission of having been 'guilty of extortion,' and if a lower rate should consequently be fixed by it, such rate is prescribed for the guilty railroad alone, and for none of the others. The effect of the determination that the railroad has been guilty of extortion is individual. This being so, the others are still at liberty to charge, as proper, a rate which, if charged by the one thus convicted, would be deemed extortion; thus not

143 U. S. 517. 36 L. ed. 247, 4 Inters. Com. Rep. 45, 12 Sup. Ct. Rep. 468.

A turnpike company is not deprived of the equal protection of the laws by a statute fixing the rates which it may charge much lower than those imposed upon other turnpike companies differently located, as it can only demand the right to receive such compensation as will be just both to itself and to the public under all the circumstances of the case. Covington & L. Turnp. Road Co. v. Sandford, 164 U. S. 578, 41 L. ed. 560, 17 Sup. Ct. Rep. 198.