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joyment by citizens of each state of the priv-| with or incurring liabilities to citizens of ileges and immunities secured by the Con- other states. It permitted that corporation stitution to citizens of the several states. to contract with citizens of other states, and The Constitution forbids only such legisla- then, in effect, provided that all such con tion affecting citizens of the respective states tracts should be subject to the condition (in as will substantially or practically put a case the corporation became insolvent) that citizen of one state in a condition of alíenage creditors residing in other states should when he is within or when he removes to an- stand aside, in the distribution by the Tenother state, or when asserting in another nessee courts of the assets of the corporastate the rights that commonly appertain tion, until creditors residing in Tennessee to those who are part of the political com- were fully paid-not out of any funds or munity known as the people of the United property specifically set aside as a trust [257]States, by and for whom the government of fund, and at the outset put into the custody the Union was ordained and established. of the state, for the exclusive benefit, or for the benefit primarily, of Tennessee creditors, but-out of whatever assets of any kind the corporation might have in that state when insolvency occurred. In other words, so far as Tennessee legislation is concerned, while this corporation could lawfully have contracted with citizens of other states, those citizens cannot share in its general assets upon terms of equality with citizens of that state. If such legislation does not deny to citizens of other states, in respect of matters growing out of the ordinary transactions of business, privileges that are accorded to it by citizens of Tennessee, it is difficult to perceive what legislation would effect that result.

Nor must we be understood as saying that
a state may not, by its courts, retain within
its limits the assets of a foreign corporation,
in order that justice may be done to its own
citizens; nor, by appropriate action of its ju-
dicial tribunals, see to it that its own citi-
zens are not unjustly discriminated against
by reason of the administration in other
states of the assets there of an insolvent cor-
poration doing business within its limits.
For instance, if the Embreeville Company
had property in Virginia at the time of its
insolvency, the Tennessee court administer-
ing its assets in that state could take into
account what a Virginia creditor, seeking to
participate in the distribution of the com-
pany's assets in Tennessee, had received or
would receive from the company's assets in
Virginia, and make such order touching the
assets of the company in Tennessee as would
protect Tennessee creditors against wrong-
ful discrimination arising from the partic-
ular action taken in Virginia for the benefit
of creditors residing in that commonwealth.
It may be appropriate to observe that the
objections to the statute of Tennessee do not
necessarily embrace enactments that are
found in some of the states requiring foreign
insurance corporations, as a condition of
their coming into the state for purposes of
business, to deposit with the state treasurering
funds sufficient to secure policy holders in
its midst. Legislation of that character does
not present any question of discrimination
against citizens forbidden by the Constitu-
tion. Insurance funds set apart in advance
for the benefit of home policy holders of a
foreign insurance company doing business in
the state are a trust fund of a specific kind
to be administered for the exclusive benefit
of certain persons. Policy holders in other
states know that those particular funds are
segregated from the mass of property owned
by the company, and that they cannot look to
them to the prejudice of those for whose spe-
cial benefit they were deposited. The pres-
ent case is not one of that kind. The stat-
ute of Tennessee did not make it a condition
[258]of the right of the British corporation to
come into Tennessee for purposes of business
that it should, at the outset, deposit with
the state a fixed amount to stand exclusively
or primarily for the protection of its Ten-
nessee creditors. It allowed that corpora-
tion, after complying with the terms of the
statute, to conduct its business in Tennessee
as it saw fit, and did not attempt to impose
any restriction upon its making contracts

We adjudge that when the general property and assets of a private corporation lawfully doing business in a state are in course of adminstration by the courts of such state, creditors who are citizens of other states are entitled, under the Constitution of the United States, to stand upon the same plane with creditors of like class who are citizens of such state, and cannot be denied equality of right simply because they do not reside in that state, but are citizens residing in other states of the Union. The individual plaintiffs in error were entitled to contract with this British corporation, lawfully do

business in Tennessee, and deemed and taken to be a corporation *of that state; and[259] no rule in the distribution of its assets among cerditors could be applied to them as resident citizens of Ohio, and because they were not residents of Tennessee, that was not applied by the courts of Tennessee to creditors of like character who were citizens of Tennessee.

As to the plaintiff in error, the Hull Coal & Coke Company of Virginia, different considerations must govern our decision. It has long been settled that, for purposes of suit by or against it in the courts of the United States, the members of a corporation are to be conclusively presumed to be citizens of the state creating such corporation (Louisville, Cincinnati & Charleston Railroad Co. v. Letson, 2 How. 497 [11: 353]; Covington Drawbridge Co. v. Shepard, etc., 20 How. 227, 232 [15: 896, 898]; Ohio & Mississippi R. R. Co. v. Wheeler, 1 Black, 286, 296 [17: 130, 133]; National Steamship Co. v. Tugman, 106 U. S. 118, 120 [27: 87, 88]; Barrow Steamship Co. v. Kane, above cited); and therefore it has been said that a corporation is to be deemed, for such purposes, a citizen of the state under whose laws it was

poration cannot rely upon the clause declaring that no state shall "deny to any person within its jurisdiction the equal protection of the laws." That prohibition manifestly relates only to the denial by the state of equal protection to persons "within its jurisdiction." Observe that the prohibition against the deprivation of property without due process of law is not qualified by the words "within its jurisdiction," while those words are found in the succeeding clause relating to the equal protection of the laws. The court cannot assume that those words were inserted without any object, nor is it[261] at liberty to eliminate them from the Constitution and to interpret the clause in question as if they were not to be found in that instrument. Without attempting to state what is the full import of the words, "within its jurisdiction," it is safe to say that a corporation not created by Tennessee, nor doing business there under conditions that subjected it to process issuing from the courts of Tennessee at the instance of suitors, is not, under the above clause of the Fourteenth Amendment, within the jurisdiction of that state. Certainly, when the statute in question was enacted the Virginia corporation was not within the jurisdiction of Tennessee. So far as the record discloses, its claim We are of opinion that this question must against the Embreeville Company was on acIreceive a negative answer. Although this count of coke sold and shipped from Virginia court has adjudged that the prohibitions of to the latter corporation at its place of busithe Fourteenth Amendment refer to all the ness in Tennessee. It does not appear to instrumentalities of the state, to its legisla- have been doing business in Tennessee under tive, executive, and judicial authorities (Ex the statute here involved, or under any statparte Virginia, 100 U. S. 339, 346, 347 [25: ute_that would bring it directly under the 676, 678, 679]; Yick Wo. v. Hopkins, 118 U. jurisdiction of the courts of Tennessee by S. 356, 373 [30: 220, 227]; Scott v. McNeal, service of process on its officers or agents. 154 U. S. 34, 45 [38: 896, 901]; and Chicago, Nor do we think it came within the jurisdicBurlington & Q. R'd Co. v. Chicago, 166 U. tion of Tennessee, within the meaning of the S. 226, 233 [41: 979, 983]), it does not fol- Amendment, simply by presenting its claim low that within the meaning of that Amend- in the state court and thereby becoming a ment the judgment below deprived the Vir- party to this cause. Under any other interginia corporation of property without due pretation the Fourteenth Amendment would process of law, simply because its claim was be given a scope not contemplated by its subordinated to the claims of the Tennessee framers or by the people, nor justified by its creditors. That corporation was not, in any language. We adjudge that the statute, so legal sense, deprived of its claim, nor was its far as it subordinates the claims of private right to reach the assets of the British cor- business corporations not within the jurisporation in other states or countries dis- diction of the state of Tennessee (although puted. It was only denied the right to par- such private corporations may be creditors ticipate upon terms of equality with Tennes- of a corporation doing business in the state see creditors in the distribution of particu- under the authority of that statute), to the lar assets of another corporation doing busi- claims against the latter corporation of credness in that state. It had notice of the pro-itors residing in Tennessee, is not a denial of ceedings in the state court, became a party the "equal protection of the laws" secured to those proceedings, and the rights asserted by the Fourteenth Amendment to persons by it were adjudicated. If the Virginia cor- within the jurisdiction of the state, however poration cannot invoke the protection of the unjust such a regulation may be deemed. second section of article IV. of the Constitution of the United States relating to the privileges and immunities of citizens in the several states, as its coplaintiffs in error have done, it is because it is not a citizen within the meaning of that section; and if the state court erred in its decree in reference to that corporaton, the latter cannot be said to have been thereby deprived of its property without due process of law within the meaning of the Constitution.

organized. But it is equally well settled, and we now hold, that a corporation is not a citizen within the meaning of the constitutional provision that "the citizens of each state shall be entitled to all privileges and immunities of citizens in the several states." Paul v. Virginia, 8 Wall. 168, 178, 179 [19: 357, 359, 360]; Ducat v. Chicago, 10 Wall. 410, 415 [19: 972, 973]; Liverpool Ins. Co. v. Massachusetts, 10 Wall. 566, 573 [19: 1029, 1031]. The Virginia corporation, therefore, cannot invoke that provision for protection against the decree of the state court denying its right to participate upon terms of equality with Tennessee creditors in the distribution of the assets of the British corporation in the hands of the Tennessee

court.

Since, however, a corporation is a "person" within the meaning of the Fourteenth Amendment (Santa Clara County v. Southern Pacific Railroad Co. 118 U. S. 394, 396 [30: 118]; Smyth v. Ames, 169 U. S. 466, 522 [42: 819, 840]), may not the Virginia corporation invoke for its protection, the clause of the Amendment declaring that no state shall deprive any person of property without due process, nor deny to any person within its jurisdiction the equal protection of the laws?

It is equally clear that the Virginia cor40

What may be the effect of the judgment of this court in the present case upon the rights of creditors not residing in the United States, it is not necessary to decide. Those creditors are not before the court on this writ of error.

*The final judgment of the Supreme Court[262] of Tennessee must be affirmed as to the Hull Coal & Coke Company, because it did not deny to that corporation any right, privilege, or immunity secured to it by the Constitution of the United States. (Rev. Stat. § 172 U. S.

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simply between citizens of the same state. It is not necessary in this court to refer to the difference between residence and citizenship. Neither is synonymous with the other and neither includes the other. A British subject or a citizen of Ohio may be a resident of Tennessee, and entitled to the benefit of this statute. A citizen of Tennessee may, like these plaintiffs in error, be a resident of and doing business in Ohio and not entitled to its benefit. It will be time enough to consider the question discussed in the opinion when it appears that a state has attempted to discriminate between its own citizens and citizens of other states, and the courts of the state have affirmed the validity of such discrimination.

I am unable to concur in the opinion of the court in this case. In my judgment it misconceives the language of the statute, the issues presented by the pleadings, and the decision of the state court. The act does not discriminate between citizens of Tennessee and those of other states. Its language is creditors "residents of this state shall have a priority over all simple contract Taking the statute as it reads, and assumereditors being residents of any other coun- ing that the legislature of Tennessee meant try or countries." The allegation of the that which it said, the question is whether amended bill is, "your orators are all resi- a state, permitting a foreign corporation dents of the state of Tennessee, and were which is not engaged in interstate commerce such at the time the various debts sued on to come into its territory and there do busiin this cause were created," and that by vir- ness, has the power to protect all persons retue of the statute they are entitled to prior- siding within its limits who may have deality over the "defendant, Rogers, Brown, & ings with such foreign corporation, by reCo., and all other creditors of said insolvent quiring it to give them a prior security on corporation who do not reside in the state of its assets within the state. The principle[2644 Tennessee, or did not so reside at the time underlying this statute is that a state, their credits were given." The intervening which can have no jurisdiction beyond its petition of the plaintiffs in error, Blake and territorial limits, has the power in reference Rogers, Brown, & Co., alleges "that they are to foreign corporations permitted to do busiresidents of the state of Ohio, and were at ness therein to protect all persons within the times and dates hereinafter named en- those limits, whether citizens or not, in regaged in business in said state, their resi- spect to claims upon the property thereof dences, offices, and places of business being also within those limits. That a state may at the city of Cincinnati." The decree of keep such a corporation out of its territory the court of chancery appeals adjudges "that is conceded; and that, in permitting it to all of the creditors of said company who re-enter, the state may impose such conditions sided in the state of Tennessee are entitled to as it sees fit, is, as a general proposition, priority of payment out of all of the assets of also admitted. In Crutcher v. Kentucky, the company of every kind over all of the 141 U. S. 47, 59, [35: 649, 653], it was said: creditors of said company who do not reside "The insurance business, for example, canin the state of Tennessee." And the decree not be carried on in a state by a foreign corof the supreme court of the state is in sub-poration without complying with all the con[263]stantially the same language,_ adjudging ditions imposed by the legislation of that "that all of the creditors of the Embreeville state. So with regard to manufacturing Freehold Land, Iron, & Railway Company, corporations, and all other corporations Limited, who resided in the state of Tennes- whose business is of a local and domestic see, are entitled to priority of payment out nature, which would include express comof all of the assets of said company, both panies whose business is confined to points real and personal, over all of the other cred- and places wholly within the state. The itors of said company who do not reside in cases to this effect are numerous. Bank of the state of Tennessee, whether they be resi- Augusta v. Earle, 13 Pet. 519 [10: 274]; dents of other states of the United States or Paul v. Virginia, 8 Wall. 168 [19: 357]; Livof the Kingdom of Great Britain." So that erpool & L. L. & F. Insurance Company v. neither the statute, the pleadings, nor the Massachusetts, 10 Wall. 566 [19: 1029]; decree raise any question of citizenship, or Cooper Manufacturing Company v. Ferguson, give any priority of right to citizens of Ten- 113 U. S. 727 [28: 1137]; Philadelphia Fire nessee over citizens of other states, but only Association v. New York, 119 U. S. 110 [30: discriminate between residents, and give res- 342]." idents of the state a priority. I think it improper to go outside of a case to find a question which is not in the record simply because it may be discussed by counsel for one party, who apparently decline to recognize any difference between residence and citizenship. For all this record discloses, the plaintiffs in error other than the corporation may have been citizens of the state of Tennessee, temporarily residing and doing business in Ohio, and the controversy one

709.) As to the other plaintiffs in error,
citizens of Ohio, the judgment must be re-
versed, and the cause remanded for further
proceedings not inconsistent with this opin-
ion.
It is so ordered.

[262] *Mr. Justice Brewer, with whom the
Chief Justice concurred, dissenting:

Everyone dealing with a foreign corporation is bound to take notice of the statutes of the state imposing conditions upon that corporation in respect to the transaction of its business within the state, just as he must take notice of any mortgage or other encumbrance placed by the corporation upon its property there situated. A state may, and often does, provide that persons furnishing supplies to and doing work for a corporation shall have a lien upon the property of that

corporation prior to any mortgage. The | foreign corporations to secure home creditvalidity of such legislation has always been ors, there are frequent illustrations of dissustained, and they who loan their money to crimination based upon the matter of resithe corporation do so with notice of the dence. Often nonresident plaintiffs are relimitation, and have no constitutional right quired to give security for costs when none of complaint if their mortgage is thereafter is demanded of resident suitors. Attachpostponed to simple-contract obligations. If ments will lie in the beginning of an action, voluntarily the corporation placed a mortgage authorizing the seizure of property upon the upon all its assets within the state to secure ground that the defendant is a nonresident, a debt to a single creditor residing within when no such seizure is permitted in case [265]*the state, and such mortgage was duly re- of resident defendants. These and many corded, no one would have the hardihood to similar illustrations, which might be sugsay that a resident or citizen of another state gested, only disclose that it has been accepted could challenge its validity or its priority as a general truth that a state may discrimover his unsecured debt simply because he inate on the ground of residence, and that was a citizen of another state, or did not, in such discrimination is not to be condemned fact, know of its existence. And that which as one between citizens; and yet, if the docis true in case of a mortgage to a single cred- trine of the opinion of the court in this case itor would be equally true in case such for- be correct, I cannot see how those statutes eign corporation placed a mortgage upon its can be sustained, for surely they discrimiassets to secure every creditor within the nate between nonresident and resident suitstate. The number of creditors secured does not ors in the matter of fundamental rights, to change the validity of the security or affect wit, the right of equal entrance into the the matter of notice or relieve the foreign courts and equal security in the possession creditor from the consequences of notice. of property. If the corporation may vountarily place a mortgage upon all its assets within the state to secure its creditors within the state, why may not the legislature require as a condition of its doing business that it give such a mortgage? Is the corporation more power-thingsful than the state? Is a voluntarily executed mortgage more valid than a statute? If, in fact, in pursuance of such a statute a mortgage to each separate creditor was given and recorded as fast as the corporation came under obligation to him, could a nonresident creditor question the validity of the mortgage or the priority given thereby? And is the effect of the statute in controversy anything other than the imposition upon the assets of the corporation within the state of a single mortgage in favor of home creditors? If written out and recorded, who could question its validity or its priority? The statute in its spirit and effect does nothing more. That it is prospective in its operation is immaterial-statutes generally are. The lidity of an after-acquired property clause in a mortgage has become settled; none the less valid is it in a statute.

It may not be uninteresting to notice the case of Fritts v. Palmer, 132 U. S. 282 [33: 317]. That case came from Colorado. The statutes of that state, as quoted in the opinion of the court, provided, among other

"Sec. 260. Foreign corporations shall, before they are authorized or permitted to do any business in this state, make and file a certificate signed by the president and secretary of such corporation, duly acknowledged, with the secretary of state, and no corporation doing business in the state, incorporated under the laws of any other state, shall be permitted to mortgage, pledge, or otherwise encumber its real or personal property situated in this state, to the injury or exclusion of any citizen, citizens, or corporations of this state who are creditors of such foreign corpora-[267] tion, and no mortgage by any foreign corporation, except railroad and telegraph comva-panies, given to secure any debt created in any other state, shall take effect as against any citizen or corporation of this state until all its liabilities due to any person or corporation in this state at the time of recording such mortgage have been paid and extinguished."

It is conceded in the opinion of the court that a foreign insurance corporation might be required to make a special deposit with the state treasurer to secure local policy holders, but if it is within the constitutional power of the state to require such special deposit, and when made it becomes in fact a security to the home policy holders, I am unable to appreciate why the state may not require a general mortgage on all the assets within the state as like security. Looking [266]at it simply as a question of power on the part of the state, what difference can there be between a pledge of a special fund and a mortgage of the entire fund within the state? And that which is true in respect to an insurance corporation must also be true of any other corporation not engaged in interstate commerce business.

Indeed, aside from the demand made by the statutes of certain states of deposits by

Commenting upon this section, and others, this court said (p. 288):

In

"No question is made in this case-Indeed, there can be no doubt as to the validity of these constitutional and statutory provisions, so far, at least, as they do not directly affect foreign or interstate commerce. Cooper Manufacturing Co. v. Ferguson, 113 U. S. 727, 732 [28: 1137, 1138], this court said that 'the right of the people of a state to prescribe generally by its Constitution and laws the terms upon which a foreign corporation shall be allowed to carry on its business in the state, has been settled by this court.""

It will be perceived that the statute of Colorado restrained a foreign corporation from mortgaging, pledging, or otherwise encum

bering its property situate in the state to the injury or exclusion of any citizen of the state, creditor of such corporation, and further provided that no mortgage given by such foreign corporation to secure a debt created in another state should take effect against any citizen of the state until all liabilities due to any person or corporation in the state had been paid and extinguished. But this court said, and I think correctly, that there could be no doubt of the validity of these statutory provisions. It may be said, and said truthfully, that the attention of the court was not specially directed to this particular portion of the statute, and hence that the decision cannot be taken as authority. Yet the section was spread before the court, it is quoted in its opinion, and it was so obviously constitutional that neither counsel nor court had any doubt thereof. I note this case in order to suggest the objectionable evolution of the thought that a state may not protect those persons who are within its jurisdiction in respect to property also within its jurisdiction, or im[268]pose conditions on foreign corporations doing business therein, which amount to such protection. Ten years ago a statute of Colorado guaranteeing priority to citizens of the state over all other creditors, even those by mortgage, was by all parties, counsel, and by court, conceded to be free from objection, while today a statute of Tennessee, in no way discriminating between citizens, but only between residents and in respect to foreign corporations, is declared to be so plainly at variance with the Constitution of the United States that it must be adjudged void.

The doctrine of this opinion is that a state has no power to secure protection to persons within its jurisdiction, citizens or noncitizens, in respect to property also within its jurisdiction, because, forsooth, such protection may in some cases work to the disadvantage of one who is not only a nonresident but also not a citizen of the state. It seems to me that the practical working out of this doctrine will be, not that the state may not discriminate in favor of its own residents as against nonresidents, but that the state must discriminate in favor of nonresidents and against its own residents. Take this illustration: A corporation organized and having its home office in New York comes into California to do business. The state of California attempts to require that its assets within the state shall be kept as a primary security for home creditors. This court declares that such requisition is unconstitutional. The solvency or insolvency of that New York corporation will be known in New York by those who are nearer to its home office sooner than by people in California. Insolvency is impending. The creditors in New York, near the home office, and familiar therefore with its exact condition, ascertaining its approaching insolvency, send to California, where there are assets, and, availing themselves of the ordinary statutory provisions of that state, seize by at-5. tachment all the assets there situated. The insolvency is thereafter made public, and

3.

A special assessment upon abutting property by the front foot, without taking special benefits into account, for the entire cost and expense of opening a street, including, not only the amount to be paid for the land, but the cost and expense of the proceedings, is a taking of private property for public use without compensation.

4.

An injunction against a special assessment which is illegal because it rests upon a basis that excludes any consideration of benefits should enjoin the whole assessment, without considering whether the amount is in excess Payment or tender of the amount of beneof the special benefits to the property, or not. fits received from an improvement is not necessary in order to obtain an injunction

the California creditors find that all the as-
sets of the corporation within their state
have been seized by creditors outside the
state, and they are driven to the state of
New York, where the corporation was or-
ganized, where its home office and home as-[269]
sets are, to see what share in the unappropri-
ated assets they can obtain, while the New
York creditors, by reason of their early in-
formation, secure full payment. Practically,
the effect is to compel the state to discrimi-
nate in favor of the New York against the
home creditors. The suggestion that after
the New York creditors have perfected their
liens upon the assets in California, the courts
of that state will stay proceedings until they
see that the New York courts have given full
protection to the California creditors in the
assets in New York, is visionary and imprac-
ticable. There may be assets in twenty
states, and there is no control by the courts
of one state over proceedings in the courts of
other states. Of course, if the California
courts can wait till the New York courts
have acted, the converse is also true, and so
a game of seesaw may be established between
the courts of the two states. For these,
among other reasons, I am constrained to
dissent from this opinion and judgment.

I am authorized to state that the Chief
Justice concurs in this dissent.

VILLAGE OF NORWOOD, Appt.,

บ.

ELLEN R. BAKER.

(See S. C. Reporter's ed. 269-303.)

Due process of law-cost of public improve

ment-special assessment, when invalid-
injunction-special benefits-taking of
private property for public use, without
compensation.

1.

Due process of law requires compensation to be made or secured to the owner of private property when it is taken by a state, or under its authority, for public use.

2.

The exaction from the owner of private property, of the cost of a public improvement in substantial excess of the special benefits accruing to him, is, to the extent of such excess, a taking, under the guise of taxation, of private property for public use without compensation.

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