9. An Ohio personal property tax imposed upon a resident of that state by reason of ownership of a seat or membership in the New York Stock Exchange is not invalid as a direct burden on inter state commerce. member-baum, 99 Cal. 162, 21 L.R.A. 399, 37 Am. St. Rep. 42, 33 Pac. 794; London & C. Loan & Agency Co. v. Morphy, 10 Ont. Rep. 86, 14 Ont. App. Rep. 577; Ketcham v. Prevost, 156 App. Div. 477, 141 N. Y. Supp. 437; Weston v. Ives, 97 N. Y. 222; People ex rel. Lemmon v. Feitner, 167 N. Y. 1, 60 N. E. 265, 82 Am. St. Rep. 698; San Francisco v. Anderson, 103 Cal. 69, 42 Am. St. Rep. 98, 36 Pac. 1034; Belton v. Hatch, 109 N. Y. 596, 4 Am. St. Rep. 495, 17 N. E. 225; Re Hurlbutt, 68 C. C. A. 216, 135 Fed. 504; Re Stringer, 165 C. C. A. 134, 253 Fed. 354; Standard Gas Power Co. v. Standard Gas Power Co. 224 Fed. 991. [For other cases, see Commerce, III. d, 2, in [No. 27.] Argued October 7, 1921. ber 7, 1921. Plaintiff in error, subjected to unreasonable, discriminatory, and multiple Decided Novem- taxation, is deprived of the equal protection of the laws. IN ERROR and ON WRIT of Certiorari to the Supreme Court of the State of Ohio to review a judgment which affirmed a judgment of the Court of Appeals of Hamilton County, in that state, which, on appeal from the Court of Common Pleas, dismissed the petition in a suit to enjoin the listing for taxation and the collection of taxes on plaintiff's membership in the New York Stock Exchange. Writ of error dismissed for want of jurisdiction. Writ of certiorari granted and judgment affirmed. See same case below, 100 Ohio St. 251, 17 A.L.R. 82, 126 N. E. 57. The facts are stated in the opinion. Mr. Murray Seasongood argued the cause and filed a brief for plaintiff in error: F. S. Royster Guano Co. v. Virginia, 253 U. S. 412, 64 L. ed. 989, 40 Sup. Ct. Rep. 560; Travis v. Yale & T. Mfg. Co. 252 U. S. 60, 64 L. ed. 460, 40 Sup. Ct. Rep. 228; Goldsmith V. George G. Prendergast Constr. Co. 252 U. S. 12, 17, 64 L. ed. 427, 430, 40 Sup. Ct. Rep. 273. The tax sought to be levied is a direct burden on interstate commerce. Union Tank Line Co. v. Wright, 249 U. S. 275, 63 L. ed. 602, 39 Sup. Ct. Rep. 276. The decision of the supreme court of Ohio denies plaintiff in error due process of law and the equal protection of the laws. Chicago L. Ins. Co. v. Cherry, 244 U. S. 25, 30, 61 L. ed. 966, 969, 37 Sup. Ct. Rep. 492; Gelpeke v. Dubuque, 1 Wall. 175, 17 L. ed. 520; Louisiana v. Pils bury, 105 U. S. 278, 26 L. ed. 1090; Muhlker v. New York & H. R. Co. 197 Membership in the New York Stock Exchange is a unique species of prop- 522: Chisholm v. Shields, 67 Ohio St. U. S. 544, 49 L. ed. 872, 25 Sup. Ct. Rep. erty, being a personal privilege insepar- 374, 66 N. E. 93; Milwaukee Electric R. ably connected with and exercisable only & Light Co. v. Wisconsin, 252 U. S. 100, upon certain real estate located in New York city. The situs for taxation of 106, 64 L. ed. 476, 480, 10 A.L.R. 892, such membership is permanently in New 40 Sup. Ct. Rep. 306. York, and outside the state of Ohio. Louisville & J. Ferry Co. v. Kentucky, 188 U. S. 385, 47 L. ed. 513, 23 Sup. Ct. Rep. 463; Currier v. Studley, 159 Mass. 24, 33 N. E. 709; Rogers v. Hennepin County, 240 U. S. 184, 60 L. ed. 594, 30 Sup. Ct. Rep. 265; State ex rel. Goetzman v. Minnesota Tax Commission, 136 Minn. 260, 161 N. W. 516; Thompson v. Adams, 93 Pa. 55; Pancoast v. Gowen 93 Pa. 66; Page v. Edmunds, 187 U. S 596, 604, 47 L. ed. 318, 322, 23 Sup. Ct. Rep. 200; Barclay v. Smith, 107 Ill. 349, 47 Am. Rep. 437; Lowenberg v. Greene Mr. Charles S. Bell argued the cause, and, with Mr. Louis H. Capelle, filed a brief for defendants in error: A seat on a stock exchange is property. Rogers v. Hennepin County, 240 U. S. 184, 60 L. ed. 594, 36 Sup. Ct. Rep. 265; Hyde v. Woods, 94 U. S. 523, 24 L. ed. 264; Sparhawk v. Yerkes, 142 U. S. 112, 35 L. ed. 915-917, 12 Sup. Ct. Rep. 104; Page v. Edmunds, 187 U. S. 596604, 47 L. ed. 318-322, 23 Sup. Ct. Rep. 200; Van Allen v. Assessors (Churchill v. Utica) 3 Wall. 573, 18 L. ed. 229; Farrington v. Tennessee, 95 U. S. 679, 24 L. ed. 558; Davidson v. New Orleans, 96 U. S. 97, 24 L. ed. 616; State v. McPhail, 124 Minn. 398, 50 L.R.A. (N.S.) 255, 145 N. W. 108, Ann. Cas. 1915C, 538; Platt v. Jones, 96 N. Y. 24; Re Currie, 107 C. C. A. 369, 185 Fed. 263; Powell v. Waldron, 89 N. Y. 328, 42 Am. Rep. 301; Nashua Sav. Bank v. Abbott, 181 Mass. 531, 92 Am. St. Rep. 430, 63 N. E. 1058; Odall v. Boyden, 80 C. C. A. 397, 150 Fed. 731, 10 Ann. Cas. 239. If it were true that such membership is not property, how could it be taxable under the Inheritance Tax Laws of the state of New York? That it is so taxed, see Re Hellman, 174 N. Y. 254, 95 Am. St. Rep. 582, 66 N. E. 809. Hawley v. Malden, 232 U. S. 1, 12, 58 L. ed. 477, 482, 34 Sup. Ct. Rep. 201, Ann. Cas. 1916C, 842; Kirtland v. Hotchkiss, 100 U. S. 491, 25 L. ed. 558; Bonaparte v. Appeal Tax. Ct. 104 U. S. 592, 26 L. ed. 845; Covington v. First Nat. Bank, 198 U. S. 100, 49 L. ed. 963, 25 Sup. Ct. Rep. 562; Southern P. Co. v. Kentucky, 222 U. S. 63, 56 L. ed. 96, 32 Sup. Ct. Rep. 13; Cooley, Taxn. 3d ed. 26; Union Refrigerator Transit Co. v. Kentucky, 199 U. S. 194, 50 L. ed. 150, 26 Sup. Ct. Rep. 36; Cooley, Taxn, 89, 93, 650, 651; State Tax on Foreign-held Bonds, 15 Wall. 300, 21 L. ed. 179; Lee ▼. Sturges, 46 Ohio St. 153, 2 L.R.A. 556, 19 N. E. 560. Intent to confer immunity from taxation must be clear beyond a reasonable doubt; for, as in case of a claim of grant, nothing must be taken against the state by presumption or inference. Delaware R. Tax, 18 Wall. 206, 21 L. ed. 888: Kirtland v. Hotchkiss, 42 Conn. 426, 19 Am. Rep. 546; Cincinnati College v. State, 19 Ohio 110; Vicksburg, S. & P. R. Co. v. Dennis, 116 U. S. 665, 29 L. ed. 770, 6 Sup. Ct. Rep. 625; Farrington v. Tennessee, 95 U. S. 679, 24 L. ed. 558; Chicago, B. & K. C. R. Co. v. Guffey (Chicago, B. & K. C. R. Co. v. Missouri), 120 U. S. 569, 30 L. ed. 732, 7 Sup. Ct. Rep. 679; Lima v. Lima Cemetery Asso. 42 Ohio St. 128, 51 Am. Rep. 809; Bradley v. Bauder, 36 Ohio St. 28, 38 Am. Rep. 547. [106] Mr. Justice Pitney delivered the opinion of the court: state, by reason of his owning a membership-figuratively termed a "seat"-in the New York Stock Exchange, infringed his rights under the commerce clause of the Constitution of the United States, on the "due process of law" or "equal protection" provisions of the 14th Amendment. His assault upon the tax was sustained by the court of first instance (20 Ohio N. P. N. S. 538), but overruled by the court of appeals (29 Ohio C. A. 465), and finally by the supreme court of the state (100 Ohio St. 251, 17 A.L.R. 82, 126 N. E. 57). Until the decision of the latter court the Federal right had been asserted merely as a claim of immunity from the tax under the constitutional provisions referred to, without drawing in question the validity of any statute of, or authority exercised under, the state, on the ground of their being repugnant to those provisions. After the final decision, in an application to the supreme court for a rehearing, plaintiff for the first time asserted that the decision, if adhered to, rendered the Ohio taxation statutes invalid because of such repugnance. This application was denied without reasons given, and hence must be regarded as having come too late to raise any question for review by this court. Loeber v. Schroeder, 149 U. S. 580, 585, 37 L. ed. 856, 859, 13 Sup. Ct. Rep. 934; Fullerton v. Texas, 196 U. S. 192, 193, 49 L. ed. 443, 444, 25 Sup. Ct. Rep. 221; Corkran Oil Development Co. v. Arnaudet, 199 U. S. 182, 193, 50 L. ed. 143, 150, 26 Sup. Ct. Rep. 41. Therefore a writ of error, allowed by the Chief Justice of the supreme court, must be dismissed because not the proper mode of review under § 237, Judicial Code, as amended by Act of September 6, 1916, chap. 448, 39 Stat at L. 726, Comp. Stat. § 1214, Fed. Stat. Anno. Supp. 1918, p. 411. But an application for the allowance of a writ of certiorari, made to this court under [107] the same sec tion, consideration of which was postponed until the hearing on the writ of error, will be granted, and the case determined thereunder. The essential facts are as follows: Plaintiff holds a membership or seat in the New York Stock Exchange for which he paid $60,000, and which carries valuA suit for injunction brought in a state the purposes of sale. The Exchange is able privileges and has a market value for court by Anderson against Durr, then not a corporation or stock company, but auditor, and Cooper, then treasurer, of a voluntary association consisting of 1.100 Hamilton county, Ohio, raised the ques- members, governed by its own constitution whether a certain property tax im- tion, by-laws, and rules, and holding the posed under authority of the state of beneficial ownership of the entire capital Ohio upon plaintiff, a resident of that stock of a New York corporation which 152 owns the building in which the business on the due process of law provision of of the Exchange is transacted, with the the 14th Amendment: it being insisted land upon which it stands, situated in that the privilege of membership in the the city of New York, and having a Exchange is so inseparably connected value in excess of $5,000,000. A mem- with specific real estate in New York ber has the privilege of transacting a that its taxable situs must be regarded brokerage business in securities listed up- as not within the jurisdiction of the on the Exchange, but may personally buy state of Ohio. Louisville & J. Ferry Co. or sell only in the Exchange building. v. Kentucky, 188 U. S. 385, 47 L. ed. 513, Membership is evidenced merely by a let- 23 Sup. Ct. Rep. 463, is cited. It is ter from the secretary of the Exchange, very clear, however, as the supreme court notifying the recipient that he has been held, that the valuable privilege of such elected to membership. Admissions to membership is not confined to the real membership are made on the vote of the estate of the Stock Exchange; that a committee on admissions. Membership member has a contractual right to have may be transferred only upon approval the association conducted in accordance of the transfer by the committee, and the with its rules and regulations, and, inproceeds are applied first to pay charges cidentally, has the right to deal through and claims against the retiring member, other members on certain fixed percenarising under the rules of the Exchange, tages and methods of division of comany surplus being paid to him. On the missions; that this right to secure the death of a member, his membership is services of other members and to "split subject to be disposed of by the commit- commissions" is a valuable right by tee; but his widow and descendants are which plaintiff in Cincinnati may propentitled to certain payments out of a erly hold himself out as a member enfund known as the "gratuity fund." In titled to the privileges of the Exchange, the business of brokers in stocks and denied to nonmembers; and [109] that bonds a differentiation is made between thus he is enabled to conduct from and members of the Exchange and nonmem- in his Cincinnati office a lucrative busibers, in that business is transacted by ness through other members in New members on account of other members at York. a commission materially less than that charged to nonmembers. A firm having as a general partner a member of the Exchange is entitled to [108] have its business transacted at the rates prescribed for members. The court held, and was warranted in holding, that the membership is personal property, and, being without fixed situs, has a taxable situs at the domicil of the owner. Mobilia sequuntur personam. See Union Refrigerator Transit Co. v. Kentucky, 199 U. S. 194, 205, 50 L. ed. 150, 154, 26 Sup. Ct. Rep. 36, 4 Ann. Cas. 493. The asserted analogy to Louisville & J. Ferry Co. v. Kentucky, supra, cannot be accepted. That decision related to a public franchise arising out of legislative grant, held to be an incorporeal hereditament in the nature of real property, and to have no taxable situs outside the granting state. It did not involve the taxation of intangible personal property. See Hawley v. Malden, 232 U. S. 1, 11, 58 L. ed. 477, 482, 34 Sup. Ct. Rep. 201, Ann. Cas. 1916C, 842; Cream of Wheat Co. v. Grand Forks County, 253 U. S. 325, 328, 64 L. ed. 931, 933, 40 Sup. Ct. Rep. 559. That a membership held by a resident of the state of Ohio in the Exchange is a valuable property right, intangible in its nature, but of so substantial a character as to be a proper subject of property taxation, is too plain for discussion. That such a membership, although partaking of the nature of a personal privilege, and assignable only with qualifications, is property within the meaning of the Bankrupt Laws, has repeatedly been held by this court. Hyde v. Woods, 94 U. S. 523525, 24 L. ed. 264, 265; Sparhawk v. Yerkes, 142 U. S. 1, 12, 35 L. ed. 915, 917, 12 Sup. Ct. Rep. 104; Page v. Edmunds, 187 U. S. 596, 601, 47 L. ed. 318, 321, 23 Sup. Ct. Rep. 200. Whether it Nor is plaintiff's case stronger if we is subjected to taxation by the taxing assume that the membership privileges laws of Ohio is a question of state law. exercisable locally in New York enable answered in the affirmative by the court that state to tax them even as against of last resort of that state, by whose de-a resident of Ohio. (See Rogers v. Hencision upon this point we are controlled. Clement Nat. Bank v. Vermont, 231 U. S. 120, 134, 58 L. ed. 147, 155, 34 Sup. Ct. Rep. 31. The chief contention here is based up nepin County, 240 U. S. 184, 191, 60 L. ed. 594, 599, 36 Sup. Ct. Rep. 265.) Exemption from double taxation by one and the same state is not guaranteed by the 14th Amendment. (St. Louis South western R. Co. v. Arkansas, 235 U. S. 350, 367, 368, 59 L. ed. 265, 273, 274, 35 Sup. Ct. Rep. 99); much less is taxation by two states upon identical or closely related property interests falling within the jurisdiction of both forbidden (Kidd v. Alabama, 188 U. S. 730, 732, 47 L. ed. 669, 672, 23 Sup. Ct. Rep. 401; Hawley v. Malden, 232 U. S. 1, 13, 58 L. ed. 477, 483, 31 Sup. Ct. Rep. 201, Ann. Cas. 1916C, 842; Fidelity & C. Trust Co. v. Louisville, 245 U. S. 54, 58, 62 L. ed. 145, 148, L.R.A.1918C, 124, 38 Sup. Ct. Rep. 40). Mr. Justice Holmes: The question whether a seat in the New York Stock Exchange is taxable in Ohio consistently with the principles established by this court seems to me more difficult than it does to my brethren. All rights are intangible personal relations between the subject and the object of them created by law. But it is established that it is not enough that the subject, the owner of the right, is within the power of the taxing state. He cannot be taxed for land situated elsewhere, and the same is true of personal [111] That plaintiff is denied the equal pro- property permanently out of the jurisdietection of the laws, within the meaning tion. It does not matter, I take it, whethof the 14th Amendment, cannot be suc- er the interest is legal or equitable, or cessfully maintained upon the record be- what the machinery by which it is fore us. The argument is that other reached, but the question is whether the brokers in the same city are not taxed object of the right is so local in its founupon the value of their memberships in dation and prime meaning that it should the local stock exchange, nor upon the stand like an interest in land. If left to privilege of doing business in New York myself I should have thought that the Stock Exchange securities. As to the foundation and substance of the plain[110] local exchange memberships, it tiff's right was the right of himself and may be that the failure to tax them is his associates personally to enter the but accidental, or due to some negligence New York Stock Exchange building and of subordinate officers, and is not proper- to do business there. I should have ly to be regarded as the act of the state. If it be state action, there is a presump tion that some fair reason exists to support the exemption, not applicable to a membership in the New York Exchange, and plaintiff has shown nothing to overcome the presumption. As to the privilege referred to, it already has been shown that the rights incident to plaintiff's property interest give him pecuniAs my Brothers Van Devanter and ary advantages over others in the same McReynolds share the same doubts, it business. Manifestly this furnishes a has seemed to us proper that they should reasonable ground for taxing him upon be expressed. the property right, although others enjoying lesser privileges because of not having it may remain untaxed. The contention that the tax constitutes a direct burden upon interstate commerce is groundless. Ordinary property taxation imposed upon property employed in interstate commerce does not amount to an unconstitutional burden upon the commerce itself. Pullman's Palace Car Co. v. Pennsylvania, 141 U. S. 18, 23, 35 L. ed. 613. 616, 3 Inters. Com. Rep. 595, 11 Sup. Ct. Rep. 876; Cleveland, C. C. & St. L. R. Co. v. Backus, 154 U. S. 439, 445, 38 L. ed. 1041, 1046, 4 Inters. Writ of error dismissed. thought that all the rest was incidental to that, and that that, on its face, was localized in New York. If so, it does not matter whether it is real or personal property, or that it adds to the owner's credit and facilites in Ohio. The same would be true of a great estate in New York land. -- Supreme Court the judgment of a state, R. Co. 253 Fed. 676; Harnick v. Penncourt adverse to a carrier which pleaded sylvania R. Co. 254 Fed. 748; Dooley v. in abatement an order of the Director Pennsylvania R. Co. 250 Fed. 142; JohnGeneral of Railroads, prohibiting the institution of suits against a railroad under son v. McAdoo, 257 Fed. 757; Nash v. Federal control in a court for any district Southern P. Co. 260 Fed. 280; Rhodes v. other than that in which the plaintiff had Tatum, Tex. Civ. App. —, 206 S. W. resided, or in which the alleged cause of 114; Russ v. New York C. R. Co. 190 action arose. App. Div. 37, 179 N. Y. Supp. 310; Missouri P. R. Co. v. Ault, 256 U. S. 554, 65 L. ed. 1087, 41 Sup. Ct. Rep. 595; Ellis v. Atlanta, B. & A. R. Co. 270 Fed. 280; Blevins v. Hines, 264 Fed. 1005; Northern P. R. Co. v. North Dakota, 250 U.S. 135, 63 L. ed. 897, P.U.R.1919D, 705, 39 Sup. Ct. Rep. 412, 18 N. C. C. A. Venue suit against carrier under 2. To order that suits against carriers while under Federal control must be brought in the county or district where the plaintiff resided at the time of the accrual of the cause of action, or in the county or district where the cause of action arose, was within the powers conferred by Congress upon the President, and by him on the Director General of Railroads, under the Act of March 21, 1918, which, in § 10. permits the enforcement of liabilities against carriers while under Federal control only in so far as not inconsistent with any order of the President. [For other cases, see Venue, in Digest Ct. 1908.] [No. 55.] 878. Mr. Robert B. Mayes submitted the Messrs. cause for defendant in error. J. A. Teat, Chalmers Potter, and Clayton D. Potter were on the brief: If orders 18 and 18a cannot be applied to causes of action accruing before govSupidity of the orders is not drawn in quesernment control, then, of course, the valtion by this suit. Benjamin Moore & Co. v. Atchison, T. Argued and submitted October 21, 1921. & S. F. R. Co. 106 Misc. 58, 174 N. Y. I Decided November 7, 1921. Supp. 60; West v. New York, N. H. & II. R. Co. 233 Mass. 162, 123 N. E. 621. N ERROR and ON WRIT of CerOrders Nos. 18 and 18a do not affect tiorari to the Supreme Court of the causes of action arising before Federal State of Mississippi to review a judg-control, and suits wherein the Director ment which affirmed a judgment of the Circuit Court for the Second District of Hinds County, in that state, in favor of plaintiff in a suit against a carrier while under Federal control. Writ of error dismissed for want of jurisdiction. Writ of certiorari granted; and judg ment reversed. See same case below, 122 Miss. 742, 84 So. 706. The facts are stated in the opinion. Mr. J. Blanc Monroe argued the cause, and, with Messrs. Monte M. Lemann and R. H. Thompson, filed a brief for plaintiffs in error: Congress, as a part of the war powers given the President by the act, expressly gave to that Executive the power by an order to relieve the carriers from the provisions of any state or Federal law which interfered with their operations. The President made a reasonable and fair regulation on the subject. Wainright v. Pennsylvania R. Co. 253 Fed. 459; Cocker v. New York, O. & W. A.L.R. 969; Spring v. American Teleg. & Teleph. Co. 10 A.L.R. 956; Com. v. Louisville & N. R. Co. 11 A.L.R. 1450; Pullman Co. v. Sweeney, 14 A.L.R. 234; and Currie v. Louisville & N. R. Co. 19 A.L.R. 678. General cannot be affected in any way, as the Federal government is not to be called upon to pay anything. McGregor v. Great Northern R. Co. 42 N. D. 269, 4 A.L.R. 1635, 172 N. W. 843; 151 U. S. 1, 38 L. ed. 55, 14 Sup. Ct. Rep. Angle v. Chicago, St. P. & M. O. R. Co. 240: Winfree v. Northern P. R. Co. 227 U. S. 296, 57 L. ed. 518 33 Sup. Ct. Rep. 273; Ettor v. Tacoma, 228 U. S. 149, 57 L. ed. 773, 33 Sup. Ct. Rep. 428. Orders 18 and 18a are invalid because in conflict with § 10 of the Act of March 21, 1918. Postal Teleg.-Cable Co. v. Call, 167 C. C. A. 178, 255 Fed. 851; Haubert v. Baltimore & O. R. Co. 259 Fed. 361; Louisville & N. R. Co. v. Steele, 180 Ky. 290, 202 S. W. 878, 17 N. C. C. A. 1097; Benjamin Moore & Co. v. Atchison, T. & S. F. R. Co. 106 Misc. 58, 174 N. Y. Supp. 63; El Paso & S. W. R. Co. v. Havens, Tex. Civ. App. 216 S. W. 444; Lavalle v. Northern P. R. Co. 143 Minn. 74, 4 A.L.R. 1659, 172 N. W. 918; Franke v. Chicago & N. W. R. Co. 170 Wis. 71, 173 N. W. 701; El Paso & S. W. R. Co. v. Lovick, Tex. Civ. App. 210 S. W. 283, affirmed in 110 Tex. 244. 218 S. W. 489; Frieson v. Chicago, R. I. & P. R. Co. 254 Fed. 875. |