which would have so restricted the | upon shares of a national bank which number of deer to be killed as to render were alleged to contravene the Federal futile the attempt to protect the re- statutes and Constitution. Discharged. serves. Three persons who had killed deer under authority of United States officials were actually arrested. Thereupon suit was brought to enjoin appel Headnote 2 lants from contin uing or threatening such interference, arrest or prosecution. The court below, after a trial, found for the United States and entered a decree in accordance with the prayer of the bill, with the limitation, however, that the decree should not be construed to permit the licensing of hunters to kill deer within said reserves in violation of the state game laws. 19 F. (2d) 634. The facts are stated in the opinion. Mr. Martin Saxe argued the cause, Robert C. Beatty, Herman G. Kopald, and, with Messrs. Henry L. Moses, and Edward F. Colladay, all of New York city, filed a brief for petitioner. Mr. William H. King argued the cause, and, with Messrs. George P. Nicholson and Eugene Fay, all of New York city, filed a brief for Andrew B. Keating, as receiver of taxes of the city of New York, et al.: The limit of jurisdiction of the statutory court of three judges, for which proWhile the solicitor general does not vision is made by § 266 of the Judicial concede the authority of the court to Code, is clearly set forth in said section, make this limitation, he is content and shows that the cause under consider[101] to let the decree stand. We, ation is not one therein embraced. therefore, pass the matter without Connecting Gas Co. v. Imes (D. C.) 11 consideration and accept the opinion and decree below, with the modification that all carcasses of deer and parts thereof shipped outside the boundaries of the reserves shall be plainly marked by tags or otherwise, in such manner as the Secretary of Agriculture may by regulations prescribe, to show that the deer were killed under his authority within the limits of the reserves. Thus modified the decree is affirmed. EX PARTE: IN THE MATTER OF THE (See S. C. Reporter's ed. 101-105.) in F. (2d) 191; Ex parte Collins, 277 U. S. 565, 72 L. ed. 990, 48 Sup. Ct. Rep. 585; Connor v. Logan County (D. C.) 12 F. (2d) 789. Mr. Henry S. Manley, of Albany, New York, argued the cause and filed a brief for Albert Ottinger, as Attorney General of New York: The Supreme Court has from the first given the Judicial Code, § 266, a liberal construction in the light of its purpose. Oklahoma Natural Gas Co. v. Russell, 261 U. S. 290, 292, 67 L. ed. 659, 661, 43 Sup. Ct. Rep. 353; King Mfg. Co. v. Augusta, 277 U. S. 100, 72 L. ed. 801, 48 Sup. Ct. Rep. 489. Injunctions against district attorneys to enjoin their enforcement of state-wide statutes are included within the provision. Courts, § 225 how constituted Junction against city tax officials. Marcus Brown Holding Co. v. FeldA suit to enjoin city tax officials man, 256 U. S. 170, 65 L. ed. 877, 41 Sup. from enforcing taxes upon stock of a na- Ct. Rep. 465; Douglas v. Noble, 261 U. tional bank which are alleged to be in con- S. 165, 67 L. ed. 590, 43 Sup. Ct. Rep. travention of the Federal statutes and Con- 303; Fenner v. Boykin, 271 U. S. 241, stitution is not within the operation of $70 L. ed. 927, 46 Sup. Ct. Rep. 492; Gulf 266 of the Judicial Code, U. S. C. title 28, § 380, requiring a court of three judges in a suit to enjoin the enforcement of a state statute by restraining the action of an officer of such state in the enforcement of the statute. PETITION for a Writ of Mandamus to compel the assembling of a court of three judges to hear a suit to enjoin city tax officials from enforcing taxes Fisheries Co. v. MacInerney, 276 U. S. 124, 72 L. ed. 495, 48 Sup. Ct. Rep. 227; Rast v. Van Deman & L. Co. 240 U. S. 342, 60 L. ed. 679, L.R.A.1917A, 421, 36 Sup. Ct. Rep. 370, Ann. Cas. 1917B, 455. Three judges should sit in the present case. Honorable Learned Hand and Honor able Augustus N. Hand, United States Circuit Judges, and Honorable William Bondy, District Judge of the United States for the Southern District of New York, all of New York city, submitted the cause as respondents: Mr. Justice Sutherland delivered the the section did not apply, although the opinion of the court: constitutionality of a statute was challenged, because the defendants were local officers and the suit concerned matters of interest only to the particular municipality involved. We need add little to what we there said. Section 266 provides that no injunction "restraining the enforcement of any statute of a state by restraining the action of any officer of such state in the enforcement. of such The petitioner, a national banking association organized under the National Bank Act, with its principal office in the city of New York, brought suit in the Federal district court for the southern district of New York against Andrew B. Keating, receiver, and William Reid, Jr., collector of taxes of the city of New York, to enjoin them from collecting taxes assessed against shares in the association in pursuance of a state statute shall be issued or granted law, but by, and for the sole use of, upon the ground of the unconstitutionthe city. The prayer for relief rested ality of such statute," except upon a upon the contention that the provisions hearing and determination [104] of a of the state law, which fixed the rate of court composed of three judges. The suit tax, discriminated in favor of other here involved the constitutionality of a moneyed capital in the hands of indi-state statute, but it was not brought to vidual citizens of the state, in contra- restrain "the action of any officer of vention of § 5219, U. S. Rev. Stat. U. S. such state in the enforcement" thereof. C. title 12, § 548, and of provisions of The persons sued are municipal officers, the Constitution of the United States. having no state functions to perform, A statutory court of three judges was but charged only with the duty of colconstituted under § 266 of the Judicial lecting and receiving taxes assessed by Code (U. S. C. title 28, § 380), and a other city officials in no respect for the master appointed, by whom evidence use of the state but for and in behalf of was taken and [103] reported. When the city alone. In effect, the contention the case came on for final hearing, the for petitioner practically comes to this court, of its own motion, dissolved after that the general purpose of § 266 directing that the cause proceed before being to safeguard state legislation asa single district judge upon the ground sailed as unconstitutional from the imthat the suit was not one coming within provident action of federal courts, the the terms of § 266. Petitioner applied words "by restraining the action of to this court for a writ of mandamus any officer of such state in the enforcerequiring the judges composing the ment . . of such statute" are withstatutory court to reconvene and pro- out significance. In other words, we are ceed to a determination of the case. asked to ignore the quoted words and Upon filing the petition, a rule to show read the section as though they were cause was issued, upon a return to not there. which the application has been heard. But we are not at liberty thus to deny The statutory court held that § 266 effect to a part of a statute. No rule did not apply because neither of the of statutory construction has been more defendants was an officer of the state definitely stated or more often repeated and the suit involved only the action than the cardinal rule that "significance of city officials in the collection of taxes and effect shall, if possible, be accorded for the use of the city. In support of to every word. As early as in Bacon's this ruling, Ex parte Collins, 277 U. S. Abridgment, § 2, it was said that 'a stat565, 72 L. ed. 990, 48 Sup. Ct. Rep. ute ought, upon the whole, to be so 585 (June 4, 1928), was relied upon. construed that, if it can be prevented, In that case suit was brought to enjoin no clause, sentence, or word shall be proceedings under a resolution of the superfluous, void, or insignificant." " city of Phoenix, Arizona, directing the Washington Market Co. v. Hoffman, 101 paving of a street upon which petitioner U. S. 112, 115, 25 L. ed. 782, 783. We was an abutting owner. The improve- are unable to perceive any ground for ment was to be made pursuant to gen- departing from the rule in the case beeral statutes of the state, which were fore us. It follows that, giving effect assailed as contravening the due process to the phrase in question, § 266 requires clause of the 14th Amendment. The the concurrence of two things in order district judge denied a request to call to give the three-judge court jurisdictwo judges to sit with him, upon the tion: (1) The suit must seek to have ground that the case did not come with- a state statute declared unconstitutionin § 266. This court sustained the ac- al, or that in effect, and (2) it must seek tion of the district judge and held that to restrain the action of an officer of tion. the state in the enforcement of such | titled to protection against state legislation statute. See Henrietta Mills Co. v. in contravention of the Federal ConstituRutherford County (D. C.) 26 F. (2d) 799, 800; Connor v. Logan County (D. C.) [105] 12 F. (2d) 789, 790; Connecting Gas Co. v. Imes (D. C.) 11 F. (2d) 191, 194, 195. The second requisite here is lacking. Our attention is directed to several cases disposed of under § 266, where this court passed on the merits although the suits were against local officers. We do not stop to inquire whether, at least in some of these cases, the so-called local officers in fact represented the state or exercised state functions in the matters involved and properly might be held to come within the provision of § 266 now under review. Compare, for example, People ex rel. Plancon v. Prendergast, 219 N. Y. 252, 258, 114 N. E. 433; State ex rel. Lopas v. Shagren, 91 Wash. 48, 52, 157 Pac. 31; Griffin v. Rhoton, 85 Ark. 89, 93, 94, 107 S. W. 380; Fellows v. New York, 8 Hun, 484, 485–488; Chickasha Cotton Oil Co. v. Lamb, 28 Okla. 275, 286, 114 Pac. 333. It is enough to say, as was said in the Collins Case, that the propriety of the hearing before three judges was not considered in the cases to which we are referred; and they cannot be regarded as having decided the question. Webster v. Fall, 266 U. S. 507, 511, 69 L. ed. 411, 412, 45 Sup. Ct. Rep. 148; United States v. Mitchell, 271 U. S. 9, 14, 70 L. ed. 799, 802, 46 Sup. Ct. Rep. 418. as property. 1. A business is a property right enNote-On constitutional equality of privileges, immunities, and protection, generally-see annotation to Louisville Safety Vault & T. Co. v. Louisville & N. R. Co. 14 L.R.A. 579. As to what constitutes due process of law, generally-see annotation to People v. O'Brien, 2 L.R.A. 255; Kuntz v. Sumption, 2 L.R.A. 655; Re Gannon, 5 L.R.A. 359; Ulman v. Baltimore, 11 L.R.A. 224; Gilman v. Tucker, 13 L.R.A. 304; Pearson v. Yewdall, 24 L. ed. U. S. 436; and Constitutional law, §§ 371, 522 poration as person. - cor due process and equal protection clauses of 2. A corporation is a person within the the Federal Constitution. Constitutional law, § 523 protection of foreign corporation. 3. A foreign corporation permitted to do business in a state may not be subjected to state statutes in conflict with the Federal Constitution. Constitutional law, § 882 interference with rights validity. 4. The police power may be exerted in the form of state legislation where otherwise the effect would be to invade rights guaranteed by the Federal Constitution substantial relation to the public health, only where the legislation bears a real and safety, morals, or some other phase of the general welfare. Constitutional law, §§ 666, 668, 895 - police power requiring owners of pharmacies to be registered pharmacists. 5. A state cannot require all owners of stock in a corporation operating a pharmacy to be registered pharmacists where by other laws it has fully safeguarded the and medicines. buying, compounding, or selling of drugs Evidence, § 40 ownership of stock. judicial notice 6. The court takes judicial notice of the fact that stock of corporations operating chain drug stores is bought and sold upon the various exchanges of the country. [No. 34.] Argued October 8, 1928. Decided November 19, 1928. APPEAL by complainant from a de cree of the District Court of the United States for the Eastern District of Pennsylvania dismissing a bill filed to enjoin the enforcement of a statute requiring owners of drug stores to be registered pharmacists. Reversed. See same case below, 22 F. (2d) 993. The facts are stated in the opinion. Wilson v. North Carolina, 42 L. ed. U. S. 865. For a discussion of police power, generally-see annotation to State v. Marshall, 1 L.R.A. 51; Re Gannon, 5 L.R.A. 359; State v. Schlemmer, 10 L.R.A. 135; Ulman v. Baltimore, 11 L.R.A. 224; Electric Improv. Co. v. San Francisco, 13 L.R.A. 131; and Barbier v. Connolly, 28 L. ed. U. S. 923. As to validity of class legislation, generally-see annotation to State v. Good Mr. Owen J. Roberts, of Philadelphia, | Trucking Co. v. Railroad Commission, Pennsylvania, and Mr. Roy M. Sterne 271 U. S. 583, 70 L. ed. 1101, 47 A.L.R. argued the cause, and, with Mr. George G. Chandler, of Philadelphia, Pennsylvania, filed a brief for appellant: It is destructive of appellant's property rights to deprive it of the right to do business in any other cities or at any other location than those in which it had units on May 13, 1927; and, when such destruction is accomplished without any benefit to the public, this is a deprivation of property without due process of law. Allgeyer v. Louisiana, 165 U. S. 578, 41 L. ed. 832, 17 Sup. Ct. Rep. 427; Pierce v. Society of Sisters, 268 U. S. 510, 69 L. ed. 1070, 39 A.L.R. 468, 45 Sup. Ct. Rep. 571; Hanover F. Ins. Co. v. Harding (Hanover F. Ins. Co. v. Carr) 272 U. S. 494, 71 L. ed. 372, 49 A.L.R. 713, 47 Sup. Ct. Rep. 179; Frost & F'. will, 6 L.R.A. 621, and State v. Loomis, | 21 L.R.A. 789. 457, 46 Sup. Ct. Rep. 605; Keystone Grocery & Tea Co. v. Huster (No. 10,922; Eq. C. C. Allegany County, Md.); Great Atlantic & P. Tea Co. v. Doughton (Super. Ct. Wake County, N. C.); Danville v. Quaker Maid, 211 Ky. 677, 43 A.L.R. 590, 278 S. W. 98; Mugler v. Kansas, 123 U. S. 623, 31 L. ed. 205, 8 Sup. Ct. Rep. 273; Lawton v. Steele, 152 U. S. 133, 38 L. ed. 385, 14 Sup. Ct. Rep. 499; Missouri ex rel. Burnes Nat. Bank v. Duncan, 265 U. S. 17, 68 L. ed. 881, 44 Sup. Ct. Rep. 427. The ownership of drug stores by a particular class is not necessary to the preservation of public health; and the natural effect of the act is simply to give a monopoly of the retail drug store to pharmacists. This is not police regulation. upon which the court below, in (1927; D. C.) 22 F. (2d) 993, placed its deciOn judicial notice, generally-see an- sion that the requirement was reasonably notation to Olive v. State, 4 L.R.A. 33. connected with the public interest. While none of the cases cited by Mr. Annotation.-Constitutionality of stat-Justice Holmes on the general question ute prescribing qualifications of stockholders of private corporations. The power of a state to declare who shall be capable of owning shares of stock in private corporations seems to have been largely a matter of assumption rather than of direct decision. See 7 R. C. L. 296. In the absence of treaty protection at least, it would seem that aliens may properly be denied the right to hold stock in any corporation. of legislative control of corporations offering professional services seems to involve directly the constitutionality of a statute prescribing qualifications of stockholders, the possibility that a corporation organized to furnish legal advice might not have a lawyer among its stockholders was suggested in Re Co-operative Law Co. (1910) 198 N. Y. 479, 32 L.R.A. (N.S.) 55, 139 Am. St. Rep. 839, 92 N. E. 15, 19 Ann. Cas. 879, holding that such a Concern could not be incorporated under the Business Corporations Law, there being a statute expressly prohibiting the practice of law by a corporation. The reported case (Louis K. LIGGETT Co. v. BALDRIGE), holding unconstitutional the requirement that all stockholders in a drug concern must be licensed pharmacists, appears to be the first one that has squarely passed upon the constitutionality of a statute of the sort indicated. The same conclusion was reached in George B. Evans v. Baldrige (1928) 294 Pa. 142, 144 Atl. 97, follow-reasonable regulation in Tucker v. New ing the Supreme Court decision. Mr. Justice Holmes and Mr. Justice Brandeis, dissenting, take the view that the statute may be justified under the police power, in like fashion as statutes prohibiting corporations from performing professional services, such as practising law or dentistry, since it "has a manifest tendency to cure or at least to make the evil less." And the possibility that the legislature may have thought that a corporate owner, in purchasing drugs, might give a greater regard to the price than to the quality, was the ground A statute as to ownership of drug stores, containing language somewhat similar to some of that used in the statute in the reported case (Louis K. Liggett Co. v. Baldrige) was held a York State Bd. of Pharmacy (1926) 127 Misc. 538, 217 N. Y. Supp. 217, where the issue was simply as to an individual's right to operate a store. Provisions requiring each member of a firm, or the manager of each place of business conducted by a corporation, to be licensed, such as are contained in People v. Ringe (1910) 197 N. Y. 143, 27 L.R.A. (N.S.) 528, 90 N. E. 451, 18 Ann. Cas. 474, are, of course, readily distinguishable from statutes of the kind with which this annotation is concerned. E. W. H. Com. v. Zacharias, 3 Pa. Super. Ct. 264, | affirmed in 181 Pa. 126, 37 Atl. 185; State v. Donaldson, 41 Minn. 74, 42 N. W. 781; Noel v. People, 187 Ill. 587, 52 L.R.A. 287, 79 Am. St. Rep. 238, 58 N. E. 616; Saddler v. People, 188 Ill. 243, 58 N. E. 906; State v. Wood, 51 S. D. 485, 54 A.L.R. 719, 215 N. W. 487; State Ariz. v. Childs, 54 A.L.R. 736, 257 | Pac. 366; People v. Ringe, 197 N. Y. 143, 27 L.R.A.(N.S.) 528, 18 Ann. Cas. 474; People v. Harrison, 170 App. Div. 802, 156 N. Y. Supp. 679; Wyeth v. Board of Health (Wyeth v. Thomas) 200 Mass. 474, 23 L.R.A. (N.S.) 147, 128 Am. St. Rep. 439, 86 N. E. 925. , The act cannot be sustained as a police regulation, because of the lack of logical connection between its alleged object and the means adopted to accomplish that object. Jay Burns Baking Co. v. Bryan, 264 U. S. 504, 68 L. ed. 813, 32 A.L.R. 661, 44 Sup. Ct. Rep. 412; Weaver v. Palmer Bros. Co. 270 U. S. 402, 70 L. ed. 654, 46 Sup. Ct. Rep. 320; Fairmont Creamery v. Minnesota, 274 U. S. 1, 71 L. ed. 893, 52 A.L.R. 163, 47 Sup. Ct. Rep. 506; Schlesinger v. Wisconsin, 270 U. S. 230, 70 L. ed. 557, 43 A.L.R. 1224, 46 Sup. Ct. Rep. 260; Weaver v. Palmer Bros. Co. 270 U. S. 402, 70 L. ed. 654, 46 Sup. Ct. Rep. 320; Adams v. Tanner, 244 U. S. 590, 61 L. ed. 1336, L.R.A.1917F, 1163, 37 Sup. Ct. Rep. 662, Ann. Cas. 1917D, 973. The act denies to the appellant the equal protection of the law. Truax v. Corrigan, 257 U. S. 312, 66 L. ed. 254, 27 A.L.R. 375, 42 Sup. Ct. Rep. 124; Kentucky Finance Corp. v. Paramount Auto Exch. Corp. 262 U. S. 544, 67 L. ed. 1112, 43 Sup. Ct. Rep. 636; Atchison, T. & S. F. R. Co. v. Vosburg, 238 U. S. 56, 59 L. ed. 1199, L.R.A.1915E, 953, 35 Sup. Ct. Rep. 675. Mr. Paul C. Wagner, of Philadelphia, Pennsylvania, argued the cause, and, with Mr. Thomas J. Baldrige, Attorney General of Pennsylvania, filed a brief for appellees: The provisions of the Act of May 13, 1927, are reasonable and have a substantial relation to the health and welfare of the public. Graves v. Minnesota, 272 U. S. 425, 71 L. ed. 331, 47 Sup. Ct. Rep. 122; Tucker v. New York State Bd. of Pharmacy, 127 Misc. 538, 217 N. Y. Supp. 217; People v. Title Guarantee & T. Co. 227 N. Y. 366, 125 N. E. 666; Re Co-operative Law Co. 198 N. Y. 479, 32 L.R.A. (N.S.) 55, 139 Am. St. Rep. 839, 92 N. E. 15, 19 Ann. Cas. 879; Hannon v. Siegel-Cooper Co. 167 N. Y. 244, 52 L.R.A. 429, 60 N. E. 517; People v. Woodbury Dermatological Inst. 192 N. Y. 454, 85 N. E. 697; World's Dispensary Medical Asso. v. Pierce, 203 N. Y. 419, 96 N. E. 738; People v. Merchant's Protective Corp. 189 Cal. 531, 209 Pac. 363; People ex rel. Los Angeles Bar Asso. v. California Protective Corp. 76 Cal. App. 354, 244 Pac. 1089; New Jersey Photo Engraving Co. v. Carl Schonert & Sons, 95 N. J. Eq. 12, 122 Atl. 307; Hodgen v. Com. 142 Ky. 722, 135 S. W. 311. The Act of May 13, 1927, does not deny to appellant the equal protection of the law. Sperry & H. Co. v. Rhodes, 220 U. S. 502, 55 L. ed. 561, 31 Sup. Ct. Rep. 490; Dent v. West Virginia, 129 U. S. 114, 32 L. ed. 623, 9 Sup. Ct. Rep. 231; State v. Creditor, 44 Kan. 565, 21 Am. St. Rep. 306, 24 Pac. 346; Ex parte Whitley, 144 Cal. 167, 77 Pac. 879, 1 Ann. Cas. 13. The practice of a profession is not a business open to all, but a personal right in the nature of a franchise conferred by the state, by virtue of which the state claims the right to determine the conditions under which the franchise may be exercised. Re Co-operative Law Co. 198 N. Y. 479, 32 L.R.A. (N.S.) 55, 139 Am. St. Rep. 839, 92 N. E. 15, 19 Ann. Cas. 879; Graves v. Minnesota, 272 U. S. 425, 71 L. ed. 331, 47 Sup. Ct. Rep. 122. Mr. Sol M. Stroock, of New York city, filed a brief as amicus curiæ. Messrs. Charles H. Sachs and Louis Caplan, both of Pittsburgh, Pennsylvania, filed a brief for the May Drug Company, as amici curiæ. Mr. Justice Sutherland delivered the opinion of the court: This appeal brings here for consideration a challenge to the constitutionality of an act of the Pennsylvania legislature approved May 13, 1927, Pa. Stat. Supp. 1928, §§ 9377a-1, 9377a-2, a copy of which will be found in the margin. The act provides that every pharmacy or drug 1 "Section 1. Every pharmacy or drug store shall be owned only by a licensed pharmacist, and no corporation, association or copartnership shall own a pharmacy or drug store, unless all the partners or members thereof are licensed pharmacists; exexisting under the laws of the commoncept that any corporation organized and wealth or of any other state of the United States, and authorized to do business in the commonwealth, and empowered by its |