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Whether as to the income from personal property, as such, the act is unconstitutional as laying a direct tax, the judges. who heard the argument are equally divided.

Opinion on second hearing.

A tax on real property is clearly a direct tax. A tax on personal property is a direct tax. That which gives value to real or personal property is its income. Property and its income are so closely connected that what is a direct tax upon one is a direct tax upon the other. Therefore, as the act imposes a tax on the income of real and personal property, and is not apportioned among the states according to their population, the act is unconstitutional.

172 U. S., 239. Statement.

Blake v. McClung.

December 12, 1898.

A statute of Tennessee provides that the assets of an insol vent foreign corporation doing business in that state shall be used to pay the debts of residents of Tennessee before paying debts of residents of other states. A foreign corporation doing business in Tennessee has become insolvent. Among its creditors are residents of Tennessee, citizens of Ohio, and a corporation of Virginia. The Ohio and Virginia creditors claim a pro rata share in the assets with the residents of Tennessee, on the ground that the said statute is unconstitutional. The case comes to the United States Supreme Court. Opinion.

1. As to the citizens of Ohio. "That [Tennessee] statute, by its necessary operation, excludes citizens of other states from transacting business with that corporation upon terms of equality with citizens of Tennessee." Therefore, it is in violation of the provision of the Federal Constitution that "the citizens of each state shall be entitled to all privileges and immunities of citizens in the several states."

2. As to the Virginia corporation. A corporation is not a "citizen," therefore, the aforementioned provision of the Constitution does not apply to it.

The Fourteenth Amendment provides that no state shall "deny to any person within its jurisdiction the equal protection of the laws." A corporation is a "person;" but here the phrase "within its jurisdiction" is all important. "A corporation not created by Tennessee, nor doing business there under conditions that subjected it to process issuing

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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." The Virginia corporation "does not appear to have been doing business in Tenunder any statute that would bring it directly under the jurisdiction of the courts of Tennessee by service of process on its officers or agents. Nor do we think it came within the jurisdiction of Tennessee, within the meaning of the amendment, simply by presenting its claim in the state court and thereby becoming a party to this cause. As to the Virginia corporation the statute is constitutional.

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Nicol v. Ames; In re Nichols; Skillen v. Ames, and Ingwersen v. United States.

173 U. S., 509. Statement.

April 3, 1899.

"each sale,

The war revenue act of 1898 imposes a tax on agreement of sale or agreement to sell any products or merchandise, at any exchange or board of trade or other similar place," and requires that the seller deliver to the buyer a memorandum to which a revenue stamp shall be affixed. It is contended that this provision is unconstitutional, because: 1. It is a direct tax, and is not apportioned as required by the Constitution.

2. If an indirect tax, it is a stamp tax on documents not required to be made under state law in order to render the sale valid, and Congress has no power to require a memorandum to be made of transactions within the state for the purpose of placing a stamp thereon.

3. If an indirect tax, it is not uniform, as required by the Constitution.

Opinion of United States Supreme Court.

1. The tax is not upon the property sold, nor the sale, nor the person making it, but "is in effect a duty or excise laid upon the privilege, or opportunity or facility offered at boards of trade" and is, therefore, not a direct tax.

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2. The tax is not upon the memorandum, nor does Congress assume to enact anything in opposition to the law of any state upon the subject of sales. It provides for a written memorandum containing the matters mentioned, simply as a means of identifying the sale, and for collecting the tax by means of the required stamp. * Congress might have required a sworn report with the proper amount of stamps

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thereon to be made at certain regular intervals, of all sales made subject to the tax. Whether the means adopted were the best and most convenient to accomplish that purpose was a question for the judgment of Congress and its decision must be conclusive in that respect."

3. In this case there is that uniformity which the Constitution requires. The tax or duty is uniform throughout the United States, and it is uniform or, in other words, equal, upon all who avail themselves of the privileges or facilities offered at the exchanges, and it is not necessary in order to be uniform that the tax should be levied upon all who make sales of the same kind of things, whether at an exchange or elsewhere."

The act is constitutional.

ALABAMA.

STATUTES.

LAWS OF 1883, PAGE 152.

§ 2. Illegal Tolls, Freights, and Ferries.—Unlawful pooling of freights. Any officer, agent, or servant of a person or corporation operating a railroad, who aids in making or carrying out an agreement between railroads, commonly called a pool, for the division between themselves of the freightcarrying business of any place in this state, whereby trade is restrained by the establishment of extortionate rates and the prevention of free competition, unless such agreement has been approved by the railroad commissioners, must, on conviction, be fined not less than fifty, nor more than two hundred dollars.

LAWS OF 1896-97, ACT 634.

AN ACT to more effectively protect the people against combinations, conspiracies and agreements between insurers whereby rates of insurance are raised or fixed. Whereas existing laws have proved inadequate to protect the people against combinations, conspiracies and agreements between insurers whereby rates of insurance are raised or fixed by such practices, therefore, in order to suppress such combinations, conspiracies and agreements to the end that competition in business shall alone make such rates.

§ 1. Be it enacted by the general assembly of Alabama, That every contract or policy of insurance made or issued after the passage of this act shall be construed to mean that in the event of loss or damage thereunder, the assured or beneficiary thereunder may, in addition to the actual loss or damage suffered, recover twenty-five per cent of the amount of such actual loss, any provision or stipulation in such contract or policy to the contrary notwithstanding; Provided, at the time of the making of such contract or policy of insurance, or subsequently before the time of trial the insurer belonged to, or was a member of, or in any way connected with, any tariff association or such like thing by

whatever name called or who had any agreement or had any understanding with any other person, corporation or association engaged in the business of insurance as agent or otherwise about any particular rate of premium which should be charged or fixed for any kind or class of insurance risk; And provided further, no stipulation or agreement in such contract or policy of insurance to arbitrate loss or damage nor to give notice or make proofs of loss or damage shall in any such case be binding on the assured or beneficiary, but right of action accrues immediately upon loss or damage.

§ 2. Be it further enacted, That if it is shown to the reasonable satisfaction of the jury by a preponderance of the weight of the testimony that such assurer at the time of the making of such agreement or policy of insurance or subsequently before the time of trial belonged to, or was a member of, in any way connected with any tariff association or such like thing by whatever name called, either in or out of this state, or had made any agreement or had any understanding either in or out of this state with any person, corporation or association engaged in the business of insurance as agent or otherwise about any particular rate of premium which should be charged or fixed for any risk of insurance on any person or property or on any kind or class of insurance risk, they must if they find for the assured or beneficiary in addition to his actual damages assess and add twenty-five per cent of the amount of such actual loss, and judgment shall be rendered accordingly.

§ 3. Be it further enacted, That this act shall be liberally construed to accomplish its object.

Approved February 18th, 1897.

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