for yarding and feeding live stock at its stock yards in Kansas City, Kansas, and Kansas City, Missouri, which it may have enacted in violation of §§ 4 and 5 of the Kansas statute relative to stock yards, ap. proved March 3, 1897, since an injunction was first awarded herein, to wit, on April—, 1897; and that it will in like manner pay such overcharges, if any, as it may continue to exact in violation of said statute during the pendency of the appeal; said obligation to become void if the statute in question shall be pronounced invalid by the Supreme Court." 82 Fed. 857.

On November 4, 1897, an appeal was duly taken and allowed to this court.

Subsequently, Louis C. Boyle's term of office as attorney general having expired, his successor, A. A. Godard, was substituted as a party defendant.

The act of the legislature of the state of Kansas is in the following terms:

"Sec. 1. Any stock yards within this state, into which live stock is received for the purpose of exposing or having the same exposed for sale or feeding, and doing business for a compensation, and which for the preceding twelve months shall have had an average [82]daily receipt of not less than 100 head of cattle, or 300 head of hogs, or 300 head of sheep, are hereby declared to be public stock-yards.

"Sec. 2. Any person, company, or corporation owning or operating any public stockyard or stock-yards in this state is hereby declared to be a public stock-yards operator, whether living or being within this state or not.

"Sec. 3. Every such public stock-yards operator or operators shall annually, on the 31st day of December of each year, file with the secretary of state an itemized statement certified and sworn to, setting forth the number of head of cattle, calves, sheep, hogs, horses, and mules received in his or their public stock-yards during the year next preceding.

than 70 pounds of corn in the car for s bushel, or less than 56 pounds of shelled corn for a bushel, or to charge for or to sell the same at more than 100 per cent above the average market price or value of such ear corn or shelled corn on the markets of the towns or cities wherein said stock yards are located, on the day next preceding such sale and delivery. All feed not above named shall be sold for no greater per cent of profit than hereinbefore provided.

*"Sec. 6. It shall be unlawful for the own-[83] ers or proprietors of any stock yards to prohibit the owner or owners, or the representatives of any owner or owners, of any dead stock in such yard or yards from selling such dead stock to any person or persons.

"Sec. 7. That any person or persons violating any of the provisions of this act shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be fined for the first offense not more than $100; for the second offense not less than $100 nor more than $200; and for the third offense not less than $200 nor more than $500 and by imprisonment in the county jail not exceeding six months for each offense; and for each subsequent offense he or they shall be fined in any sum not less than $1,000 and by imprisonment in the county jail not less than six months.

"Sec. 8. It is hereby made the duty of the attorney general to prosecute all violations of the provisions of this act.

"Sec. 9. All acts or parts of acts in conflict with this act are hereby repealed.

"Sec. 10. This act shall take effect and be in force from and after its publication in the official state paper." Laws of Kansas 1897, chap. 240, p. 448.

Mr. Albert H. Horton argued the cause, and, with Mr. B. P. Waggener, filed a brief for appellants:

150, 41 L. ed. 666. 17 Sup. Ct. Rep. 255.

The evasion of the constitutional provisions forbidding unlawful discriminations by the framing of the act so that it was not likely, and hardly possible, that any other steck yards than those of Kansas City would come within its provisions, should not be connived at by the courts.

Central Trust Co. v. Citizens' Street R.

Co. 80 Fed. 218.

state into certain classes, based exclusively Even though a division of cities of the on population, has been sustained by the Kansas supreme court, that court has held that when an act of the legislature is so special in its provisions that it can only ap ply to three certain cities it is unconstitutional and void.

Reemelin v. Smith, 48 Ohio St. 211, 26 N. E. 1069; Harding v. People, 160 Ill. 459, 32 L. R. A. 445, 43 N. E. 624; Adams v. Nemeyer, 54 Ohio St. 614, 46 N. E. 1154.

So, the supreme court of Ohio has rebuked the favorite evasion of the legislature of that state, of seeming to adopt a general law, and yet making it local or special in its character.

Pittsburgh, Ft. W. & C. R. Co. v. Martin, 53 Ohio St. 386, 41 N. E. 690.

A statute is not constitutional which selects particular individuals from a class or locality and subjects them to peculiar rules, or imposes upon them special obligations or burdens, from which others in the same locality or class are exempt.

Topeka v. Gillett, 32 Kan. 431, 4 Pac. 800; Cooley, Const. Lim. 6th ed. 479, 482, 483, and notes. See also State v. Loomis, 115 Mo. 307, 21 L. R. A. 789, 22 S. W. 350; State v. Goodwill, 33 W. Va. 179, 6 L. R. A. 621, 10 S. E. 285; Low v. Rees Printing Co. 41 Neb. 127, 24 L. R. A. 702, 59 N. W. 362; Re Eight Hour Law, 21 Colo. 29, 39 Pac. 328; Millett v. People, 117 Ill. 294, 57 Am. Rep. 869, 7 N. E. 631; State ex rel. McCue v. Ramsey County Sheriff, 48 Minn. 236, 51 N. W. 112; Darcy v. San José, 104 Cal. 642, 38 Pac. 500; Cincinnati v. Steinkamp, 54 Ohio St. 284, 43 N. E. 490; Shreveport v. Levy, 26 La. Ann. 671, 21 Am. Rep. 553.

As the statute was clearly intended for a particular case, and practically looks to no broader application, it is vicious class legislation, and therefore unconstitutional. When an act is found to fit a special case only, it is deemed to have been intended solely for it.

Sutherland, Stat. Constr. § 129.

It is manifestly contrary to the first principles of civil liberty and natural justice, and to the spirit of our Constitution and laws, that any one citizen should enjoy privileges and advantages which are denied to all others under like circumstances; or that anyone should be subjected to losses, damages, suits, or actions from which all others, under like circumstances, are exempted. Holden v. James, 11 Mass. 396, 6 Am. Rep.

174.

as a dead structure,-not as a unit or sy tem, or as a living and going concern.

San Diego Land & Town Co. v. National City, 174 U. S. 739, 43 L. ed. 1154, 19 Sup. Ct. Rep. 804; Adams Exp. Co. v. Ohio State Auditor, 165 U. S. 194, 41 L. ed. 683, 17 Sup. Ct. Rep. 305, 166 U. S. 185, 41 L. ed. 965, 17 Sup. Ct. Rep. 604; National Waterworks Co. v. Kansas City, 27 L. R. A. 827, 10 C. C. A. 653, 27 U. S. App. 165, 62 Fed. 853; Little Rock & Ft. S. R. Co. v. McGehee, 41 Ark. 202; Mississippi & R. River Boom Co. v. Patterson, 98 U. S. 403, 25 L. ed. 206; King v. Minneapolis Union R. Co. 32 Minn. 224, 20 N. W. 135; Sanford v. Poe, 16 C. C. A. 305, 37 U. S. App. 378, 59 Fed. 546; State ex rel. Poe v. Jones, 51 Ohio St. 492, 37 N. E. 945.

If it would be unreasonable to reduce the total net income of the stock-yards company 75 per cent, prima facie it is unreasonable to reduce any part of such net income 75 per cent.

Ames v. Union P. R. Co. 4 Inters. Com, Rep. 835; 64 Fed. 165..

Considering the current rate of interest in Kansas and the character of the investment of the stockholders, the act of March 3d, 1897, would, by its necessary operation, de prive the Kansas City Stock-Yards Company of the right to obtain just compensation for the services rendered by it, and would also deny to such company and its stockholders the equal protection of the laws.

Ibid.; Milwaukee Electric R. & Light Co. v. Milwaukee, 87 Fed. 577; Southern P. Co. v. Railroad Comrs. 78 Fed. 236; Smyth v. Ames, 169 U. S. 466, 42 L. ed. 819, 18 Sup. Ct. Rep. 418.

Mr. William D. Guthrie also argued the cause, and, with Messrs. Albert H. Horton and B. P. Waggener, filed a brief for appellants:

So far as the question of the jurisdiction of a Federal court to enjoin the state officers from enforcing an unconstitutional statute terfere with and destroy the property rights when such enforcement would obviously inof the citizen is involved, this case is within the settled doctrine of this court.

819, 18 Sup. Ct. Rep. 418; Reagan v. FarmSmyth v. Ames, 169 U. S. 466, 42 L. ed.

tion of the laws.

Santa Clara Railroad Tax Case, 9 Sawy. 165, 18 Fed. 385, 118 U. S. 394, 30 L. ed. 118, 6 Sup. Ct. Rep. 1132.

The Kansas City Stock-Yards Company, although a corporation, is a person within the 14th Amendment.

Smyth v. Ames, 169 U. S. 466, 42 L. ed. 819, 18 Sup. Ct. Rep. 418.

The finding of the master and the court below, of the value of the property of the Kansas City Stock-Yards Company, owned and operated by it for stock-yards purposes, was founded upon incompetent and insufficient testimony. The property was valued

The attorney general by a full investigation and adversary contest upon the merits, conducted by him below, has waived the question of jurisdiction under the 11th Amendment.

Clark v. Barnard, 108 U. S. 436, 27 L. ed. 780, 2 Sup. Ct. Rep. 878.

In equity it is always the practice to plead jurisdiction at the proper time and before a defendant enters into his defense at large. Good faith and early assertion of rights are as essential on the part of the defendant as of the complainant.

Brown, B. & Co. v. Lake Superior Iron Co. 134 U. S. 530, 33 L. ed. 1021, 10 Sup. Ct. Rep. 604.

There is a broad difference in the matter

Kentucky Railroad Tax Cases, 115 U. S. 321, sub nom. Cincinnati, N. O. & T. P. R. Co. v. Kentucky, 29 L. ed. 414, 6 Sup. Ct. Rep. 37.

It does not prohibit legislation which is limited, either in the objects to which it is directed, or by the territory within which it is to operate. It merely requires that all persons subjected to such legislation shall be treated alike under like circumstances and conditions, both in the privilege conferred and liabilities imposed.

Hayes v. Missouri, 120 U. S. 68, 30 L. ed. 578, 7 Sup. Ct. Rep. 850.

It may be safely said that the rule prescribes no rigid equality, and permits to the discretion and wisdom of the state a wide latitude, as far as interference by this court is concerned.

Duncan v. Missouri, 152 U. S. 377, 38 L. ed. 485, 14 Sup. Ct. Rep. 570.

Rep. 835, 64 Fed. 177; San Diego Land & Town Co. v. National City, 174 U. S. 739, 43 L. ed. 1154, 19 Sup. Ct. Rep. 804; Covington & L. Turnp. Road Co. v. Sandford, 164 U. S. 578, 41 L. ed. 560, 17 Sup. Ct. Rep. 198; Dow v. Beidelman, 125 U. S. 680, 31 L. ed. 841, 2 Inters. Com. Rep. 56, 8 Sup. Ct. Rep. 1028; Milwaukee Electric R. & Light Co. v. Milwaukee, 87 Fed. 583.

This action cannot be maintained because it is a suit against the state of Kansas, and because the only relief sought herein is to enjoin the prosecution of criminal actions which would have to be brought in the name of the state of Kansas.

Fitts v. McGhee, 172 U. S. 516, 43 L. ed. 535, 19 Sup. Ct. Rep. 269.

The allegations of the bills, and the contention of the appellants, are that the injunctions should be allowed in order that a multiplicity of criminal suits may be avoided. This is not within the province of a court of equity; an injunction may in some cases be granted to restrain the prosecution of civil actions, but not to restrain the institution of criminal proceedings.

Harkrader v. Wadley, 172 U. S. 148, 43 L. ed. 399, 19 Sup. Ct. Rep. 119.

Neither does the fact that many criminal suits are threatened, instead of one or few, change the rule.

Fitts v. McGhee, 172 U. S. 516, 43 L. ed. 535, 19 Sup. Ct. Rep. 269.

Magoun v. Illinois Trust & Sav. Bank, 170 U. S. 283, 42 L. ed. 1037, 18 Sup. Ct. Rep. 594; Orient Ins. Co. v. Daggs, 172 U. S. 557, 43 L. ed. 552, 19 Sup. Ct. Rep. 281. See also Atchison, T. & S. F. R. Co. v. Matthews, 174 U. S. 96, 43 L. ed. 909, 19 Sup. Ct. Rep. 609; Cotting v. Kansas City Stock-Yards Co. 79 Fed. 681.

The law forbidding the use of stoves for heating cars upon railroads more than 50 miles long has been held to be a valid exercise of the power of the legislature to classify the railroads doing business in the state. New York, N. H. & H. R. Co. v. New York, 165 U. S. 628, 41 L. ed. 853, 17 Sup. Ct. Rep. 418.

The business done at the Kansas City Stock Yards is public in its nature, and is impressed with a public use.

Munn v. Illinois, 94 U. S. 113, 24 L. ed. 77; Spring Valley Waterworks v. Schottler, 110 U. S. 347, 28 L. ed. 173, 4 Sup. Ct. Rep. 48; Budd v. New York, 143 U. S. 517, 36 L. ed. 247, 4 Inters. Com. Rep. 45, 12 Sup. Ct. Rep. 468; San Diego Land & Town Co. v. National City, 174 U. S. 739, 43 L. ed. 1154, 19 Sup. Ct. Rep. 804.

In determining whether or not the rates permitted by the act of 1897 are reasonable, reference must be had to the actual value of the property affected thereby.

Ames v. Union P. R. Co. 4 Inters. Com. 183 U. S. U. S., BOOK 46.

Rensselaer & S. R. Co. v. Bennington & R. Co. 18 Fed. 617; Re Sawyer, 124 U. S. 200, 31 L. ed. 402, 8 Sup. Ct. Rep. 482.

Courts will not interfere with the collection of rates established under legislative sanction, unless they are so plainly and palpably unreasonable as to make their enforce ment equivalent to the taking of property for public use without such compensation as, under all the circumstances, is just, both to the owner and the public.

San Diego Land & Town Co. v. National City, 174 U. S. 739, 43 L. ed. 1154, 19 Sup. Ct. Rep. 804.

Messrs. William D. Guthrie and B. P. Waggener argued the cause on reargument, and, with Mr. Albert H. Horton, filed a brief for appellant:

The objection to the jurisdiction was waived.

Clark v. Barnard, 108 U. S. 436, 27 L. ed. 780, 2 Sup. Ct. Rep. 878; Brown, B. & Co. v. Lake Superior Iron Co. 134 U. S. 530, 33 L. ed. 1021, 10 Sup. Ct. Rep. 604; Coburn v. Cedar Valley Land & Cattle Co. 138 U. S. 196, 34 L. ed. 876, 11 Sup. Ct. Rep. 258.

When an officer of a state is sued and intends to avail himself of the point that the judicial power of the courts of the United States does not extend to the suit, because virtually a suit against the state, he should at once challenge the power of the court to proceed further by a plea or demurrer to proceed

97