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 validity of such legislation has always been sustained, and they who loan their money to the corporation do so with notice of the limitation, and have no constitutional right of complaint if their mortgage is thereafter postponed to simple-contract obligations. If voluntarily the corporation placed a mortgage upon all its assets within the state to secure a debt to a single creditor residing within [265]*the state, and such mortgage was duly recorded, no one would have the hardihood to say that a resident or citizen of another state could challenge its validity or its priority over his unsecured debt simply because he was a citizen of another state, or did not, in fact, know of its existence. And that which is true in case of a mortgage to a single creditor would be equally true in case such foreign corporation placed a mortgage upon its assets to secure every creditor within the state. The number of creditors secured does not change the validity of the security or affect the matter of notice or relieve the foreign creditor from the consequences of notice. 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 validity of an after-acquired property clause in a mortgage has become settled; none the less valid is it in a statute.

foreign corporations to secure home credit-
ors, there are frequent illustrations of dis-
crimination based upon the matter of resi-
dence. Often nonresident plaintiffs are re-
quired to give security for costs when none
is demanded of resident suitors. Attach-
ments will lie in the beginning of an action,
authorizing the seizure of property upon the
ground that the defendant is a nonresident,
when no such seizure is permitted in case
of resident defendants. These and many
similar illustrations, which might be sug-
gested, only disclose that it has been accepted
as a general truth that a state may discrim-
inate on the ground of residence, and that
such discrimination is not to be condemned
as one between citizens; and yet, if the doc-
trine of the opinion of the court in this case
be correct, I cannot see how those statutes
can be sustained, for surely they discrimi-
nate between nonresident and resident suit-
ors in the matter of fundamental rights, to
wit, the right of equal entrance into the
courts and equal security in the possession
of property.

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 opin-
ion of the court, provided, among other

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 terstate commerce business.

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

"Sec. 260. Foreign corporations shall, be-
fore they are authorized or permitted to do
any business in this state, make and file a
certificate signed by the president and sec-
retary of such corporation, duly acknowl-
edged, 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 cit-
izen, citizens, or corporations of this state
*who are creditors of such foreign corpora-[267]
tion, and no mortgage by any foreign corpo-
ration, except railroad and telegraph com-
panies, given to secure any debt created in
any other state, shall take effect as against
any citizen or corporation of this state un-
til all its liabilities due to any person or cor-
poration in this state at the time of record-
ing such mortgage have been paid and ex-
tinguished."

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

"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. In 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 in-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.

970-273

SUPREME COURT OF THE NITED STATES.

Оот. ТЕВМ, against an illegal assessment which is based | narrow, straighten, extend, keep in order, en a rule or system that has no reference to and repair, and light streets, alleys, public grounds, and buildings, wharves, landing places, bridges, and market spaces within the corporation, and to appropriate private prop

special benents.

[No. 34.]

Submitted May 3, 1898. Decided December erty for the use of the corporation. And
12, 1898.
"each city and village may appropriate, enter
upon, and hold real estate within its corpo-[272]
rate limits for the following purposes, but no
more shall be taken or appropriated than is
reasonably necessary for the purpose to
which it is to be applied: 1. For opening,
widening, straightening and extending
streets, alleys, and avenues; also for obtain-
ing gravel or other material for the improve-
ment of the same, and for this purpose the
right to appropriate shall not be limited to
lands lying within the limits of the corpora-
tion.
1 Rev. Stat. Ohio (1890) § 1692,
subdiv. 18 and 33, and § 2232, pp. 429, 430,
title, Cities and Villages; Enumeration of
Powers, and p. 572, title, Appropriation by
Cities and Villages of Private Property to
Public Use.

A
PPEAL from a decree of the Circuit
Court of the United States for the South-
ern District of Ohio adjudging that a certain
assessment for opening a street is in viola-
tion of the constitutional amendment forbid
ding deprivation of property without due
process of law. Affirmed.

See same case below, 74 Fed. Rep. 997.
The facts are stated in the opinion.
Mr. William E. Bundy for appellant.
Mr. Charles W. Baker for appellee.
[270]. *Mr. Justice Harlan delivered the opin-
ion of the court:

This case arises out of the condemnation of certain lands for the purpose of opening a street in the village of Norwood, a municipal corporation in Hamilton county, Ohio.

Other provisions of the statute prescribe the steps to be taken in the appropriation by a municipal corporation of private property for public purposes. §§ 2233 to 2261 in

The particular question presented for consideration involves the validity of an ordi71]nance of that village, assessing upon the ap-clusive. pellee's land abutting on each side of the new street an amount covering, not simply a sum equal to that paid for the land taken for the street, but, in addition, the costs and expenses connected with the condemnation pro-ates, or otherwise acquires, lots or lands for ceedings. the purpose of laying off, opening, extending, straightening, or widening a street, alley, or other public highway, or is possessed of property which it desires to improve for street purposes, the council may assess the cost and expenses of such appropriation or acquisition, and of the improvement, or of either, or of any part of either, upon the general tax list, in which case the same shall be assessed upon all the taxable real and per

By the final decree of the circuit court of the United States it was adjudged that the assessment complained of was in violation of the Fourteenth Amendment of the Constitution of the United States forbidding any state from depriving a person of property without due process of law; and the village was perpetually enjoined from enforcing the assessment. 74 Fed. Rep. 997. The present appeal was prosecuted direct-sonal property in the corporation. ly to this court, because the case involved the construction and application of the Constitution of the United States.

It will conduce to a clear understanding of the case to ascertain the powers of the village under the Constitution and statutes of Ohio, and to refer somewhat in detail to the proceedings instituted for the opening of the street through appellee's property.

By the Constitution of Ohio it is declared: "Private property shall ever be held inviolate, but subservient to the public welfare. When taken in time of war or other public exigency imperatively requiring its immediate seizure, or for the purpose of making or repairing roads, which shall be open to the public, without charge, a compensation shall be made to the owner, in money, and in all other cases, where private property shall be taken for public use, a compensation therefor shall first be made in money; and such compensation shall be assessed by a jury, with out deduction for benefits to any property of the owner." Const. Ohio 1851, art. 1, § 19, Bill of Rights; Bates's Anno. Ohio Stat. vol. 3, p. 3525.

Cities and villages in Ohio are by statute given power to lay off, establish, open, widen,

It is further provided by the statutes of Ohio (1890) title XII. Assessments, etc., chap. 4, as follows:

"2263. When the corporation appropri

"§ 2264. In the cases provided for in the
last section, and in all cases where an im-
provement of any kind is made of an exist-
ing street, alley, or other public highway,
the council may decline to assess the costs
and expenses in the last section mentioned or
any part thereof, or the costs and expenses
or any part thereof of such improvement,
except as hereinafter mentioned, on the gen-
eral tax list, in which event such costs and
expenses, or any part thereof which may not
be so assessed on the general tax list, shall
be assessed by the council on the abutting
and such adjacent and contiguous or other
benefited lots and lands in the corporation,
either in proportion to the benefits which
may result from the improvement, *or accord-[273]
ing to the value of the property assessed, or
by the front foot of the property bounding
and abutting upon the improvement, as the
council by ordinance setting forth specifically
the lots and lands to be assessed, may de-
termine before the improvement is made, and
in the manner and subject to the restrictions
herein contained; and the assessments shall
be payable in one or more instalments, and
at such times as the council may prescribe.
1 Rev. Stat. Ohio, p. 581.

·

Section 2271 provides: "In cities of the of any improvement contemplated in this first grade of the first class, and in corpora- chapter shall include the purchase money of tions in counties containing a city of the first real estate, or any interest therein, when the grade of the first class, the tax or assess- same has been acquired by purchase, or the ment especially levied or assessed upon any value thereof as found by the jury, where the lot or land for any improvement shall not, same has been appropriated, the costs and except as provided in § 2272, exceed twenty-expenses of the proceedings, the damages asfive per centum of the value of such lot or sessed in favor of any owner of adjoining land after the improvement is made, and the lands and interest thereon, une costs and excost exceeding that per centum shall be paid penses of the assessment, the expense of the by the corporation out of its general revenue; preliminary and other surveys, and of printand whenever any street or avenue ing, publishing the notices and ordinances reis opened, extended, straightened, or widened, quired, including notice of assessment, and the special assessment for the cost and ex- serving notices on property owners, the cost pense, or any part thereof, shall be assessed of construction, interest on bonds, where only on the lots and lands bounding and bonds have been issued in anticipation of the abutting on such part or parts of said street collection of assessments, and any other necor avenue so improved, and shall include of essary expenditure." such lots and lands only to a fair average depth of lots in the neighborhood, but shall also include other lots and parts thereof and lands to such depth; and whenever at least one half in width of any street or avenue has been dedicated for such purpose from the lots and lands lying on one side of the line of such street or avenue, and such street or avenue is widened by taking from lots and lands on the other side thereof, no part of the cost and expense thus increased [incurred] shall be assessed upon the lots and lands lying on said first-mentioned side, but only upon the other side, and as aforesaid, but said special assessment shall not be in any case in excess of benefits." 1 Rev. Stat. Ohio, p. 513.

Section 2272 relates to assessments for improvements made in conformity with the petition of the owners of property.

By section 2277 it is provided that "in cases wherein it is determined to assess the whole or any part of the cost of an improvement upon the lot or lands bounding or abut[274]ting upon the same, or upon any other lots or lands benefited thereby, as provided in § 2264, the council may require the board of improvements, or board of public works, as the case may be, or may appoint three disinterested freeholders of the corporation or vicinity, to report to the council an estimated assessment of such cost on the lot or lands to be charged therewith, in proportion, as nearly as may be, to the benefits which may result from the improvement to the several lots or parcels of land so assessed, a copy of which assessment shall be filed in the office of the clerk of the corporation for public inspection."

Section 2284 is in these words: "The cost 172 U. S.

By an ordinance approved October 19th, 1891, the village declared its intention to condemn and appropriate, and by that ordinance condemned and appropriated, the lands or grounds in question for the purpose of opening and extending Ivenhoe avenue; and in order to make such appropriation effectual, the ordinance directed the institution of the necessary proceedings in court for an inquiry and assessment of the compensation to be paid for the property to be condemned.

The ordinance provided that the cost and expense of the condemnation of the property, including the compensation paid to the owners, the cost of the condemnation proceedings, the cost of advertising and all other costs and the interest on bonds issued, if any, should be assessed "per front foot upon the property bounding and abutting on that part of Ivenhoe avenue, as condemned and[275] appropriated herein"-the assessments payable in ten annual instalments if deferred, and the same collected as prescribed by law and in the assessing ordinance thereafter to be passed.

Under that ordinance, application was made by the village to the probate court of Hamilton county for the empaneling of a jury to assess the compensation to be paid for the property to be taken. A jury was accordingly empaneled, and it assessed the plaintiff's compensation at $2,000, declaring that they made the "assessment irrespective of any benefit to the owner from any improvement proposed by said corporation."

The assessment was confirmed by the court, the amount assessed was paid to the owner, and it was ordered that the village have immediate possession and ownership of the 445