per cent of the actual value, except that of the express companies, which they did not assess at all. It alleges that in this way the petitioner will be deprived of his property without due process of law and will be denied the equal protection of the laws, contrary to the Fourteenth Amendment of the Constitution of the United States. The motion to quash denied the jurisdiction of the Supreme Court of Missouri to issue the writ, and also the sufficiency of the grounds on which the writ was allowed. The court sustained the motion without an opinion or statement of reasons.

For all that appears, the court may have quashed the writ on grounds of local practice. But if this consideration be laid on one side, it is impossible to say that the board of equalization has not acted with regard to those companies which it has assessed. It has laid a substantial tax upon them. Its judgment is final under the Missouri constitution and statutes. Mo. Const. Art. X, § 18; Rev. Stat. §§ 9344, 9356, c. 149, art. 8, March 9, 1901, Stat. 1901, p. 232. If, nevertheless, we assume that mandamus would lie upon a clear case of fraud adequately alleged and proved, State Board of Equalization v. People, 191 Illinois, 528, 539, it would be a strong thing to revise the judgment of the board on the strength of allegations of undervaluations, and the single adjective "fraudulent" without more specific allegations of fact. State v. Western Union Telegraph Co., 165 Missouri, 502, 516, 517; State v. Talty, 166 Missouri, 529, 560; Manchester v. Furnald, 71 N. H. 153, 158; Knight v. Thomas, 93 Maine, 494; Maish v. Arizona, 164 U. S. 599, 611; Pittsburg, Cincinnati, Chicago & St. Louis Ry. Co. v. Backus, 154 U. S. 421, 434, 438. See Fogg v. Blair, 139 U. S. 118, 127.

However this may be, the petitioner admitted at the argument that his own tax was correct, and that he would have had no case under the Fourteenth Amendment if the companies had been exempted altogether. Magoun v. Illinois Trust & Savings Bank, 170 U. S. 283, 293–295; Connolly v. Union Sewer Pipe Co., 184 U. S. 540, 562. But his rights

under that amendment turn on the power of the State, no matter by what organ it acts. Virginia v. Rives, 100 U. S. 313, 318. Therefore, if the Supreme Court of the State construed the statutes as exempting express companies from this tax and substituting another, as it is argued on behalf of the defendants in error that the statutes do, the petitioner cannot complain here. For the legislature could exempt them, and the question whether it has done so or not is for the state courts to decide in their construction of its acts. Furthermore, if the State could grant a total exemption it could grant a partial exemption, and if it has done so, de facto, through its officers, the petitioner cannot come here on an allegation that the officers acted as they did without the authority of the State. That again is for the state court to decide. The petitioner has no case under the Constitution of the United States, and nothing else is open. This is a writ of error to a state court, so that questions under the state constitution and laws cannot be considered as they might be on error to a subordinate court of the United States.

Judgment affirmed.

ALLEN v. PULLMAN'S PALACE CAR COMPANY.

ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE MIDDLE DISTRICT OF TENNESSEE.

No. 27. Argued October 16, 1903.-Decided November 16, 1903.

A State may not impose a tax which is in any way a burden upon interstate commerce; but it may impose a privilege tax upon corporations engaged in interstate commerce for carrying on that part of their business which is wholly within the taxing State and which tax does not affect their interstate business or their right to carry it on in that State.

The provision of the tax law of the State of Tennessee of 1887, that sleeping car companies doing business in the State pay a certain sum per annum per car and which by its terms applies to cars running through the State

as well as to those operated wholly within the State, is repugnant to the commerce clause of the Federal Constitution. Pickard v. Pullman Co., 117 U. S. 34.

The provision of the tax law of the State of Tennessee of 1889, that sleeping car companies pay a tax of $3,000 per annum in lien of all other except ad valorem tax for one or more passengers taken up at one point within the State and delivered at another and transported wholly within the State and which does not refer to or affect the interstate business of the companies, is not repugnant to the commerce clause of the Federal Constitution. Osborne v. Florida, 164 U. S. 650.

Such tax will not be regarded as a disguised attempt to tax the privilege of engaging in interstate commerce if, under the laws of the taxing State, it is not compulsory for a corporation engaged in interstate commerce to carry on that part of its business which is wholly within that State. Pullman Co. v. Adams, 189 U. S. 420.

THIS is a writ of error to review the judgment of the Circuit Court for the Middle District of Tennessee in suits brought by the Pullman's Palace Car Company to recover from the State of Tennessee moneys paid under protest for taxes levied and collected by virtue of certain laws of the State requiring the payment of sums for the years 1887 to 1893, inclusive. These statutes are set forth in the opinion. The cases were tried by the court without the intervention of a jury, and separate findings of fact and law were made. From the findings of fact it appears that the Pullman Company, a sleeping car company, operated its cars in Tennessee under a contract with railroad. companies traversing the State. These contracts required the Pullman Company to furnish the cars, keep the same in order, and to hire the porters and conductors. The railroad companies paid the Pullman Company for the privileges afforded, furnishing light, heat and water for the cars, and repairing damages due to accident and casualty. The special finding of facts as to the manner of operation in transporting the cars of the Pullman Company sets forth:

During the years 1887 and 1888 the company operated sleeping cars, as follows: A car left Nashville and went to Memphis nightly and on this car tickets were sold to passengers from Nashville to Memphis and not beyond. This car remained in Memphis during the day, returning to Nashville the following

night and going no further. The next night, it went from Nashville by way of Chattanooga to Atlanta, Georgia. It remained in Atlanta during the day and returned the next night from Atlanta to Memphis. On the trip from Memphis tickets were sold from Nashville to Atlanta and to intermediate points in the State of Tennessee. On the nights the cars left Nashville for Memphis and Atlanta for Nashville, a car left Memphis for Nashville and another left Nashville for Atlanta, selling tickets from Memphis to Nashville and intermediate points, and no further, and from Atlanta and intermediate points to Nashville and no further. The car from Memphis to Nashville went on the trip to Atlanta before making a return trip to Memphis, and the car making the trip from Atlanta to Nashville went on the trip the following night to Memphis before making a return trip to Atlanta. The same cars were not used continuously in this service, but were changed from time to time, there being four cars performing the service at all times.

During the year 1887 the East Tennessee, Virginia and Georgia Railroad Company ran two sleepers of its own, doing a business between Knoxville and Chattanooga, Tennessee. During the years 1889, 1890, 1891, 1892 and 1893 the company has operated sleeping cars between Nashville and. Memphis and Atlanta and Nashville, as above set forth. From 1887, continuously, the Pullman Company has operated its cars on the lines of the Nashville, Chattanooga and St. Louis Railway, the Louisville and Nashville Railroad, East Tennessee, Virginia and Georgia Railroad, now the Southern Railway, the Newport News and Mississippi Valley Railroad, Illinois Central Railroad and Cincinnati Southern Railroad, and all other railroads within the State of Tennessee whereon sleeping cars are used, and has taken up, carried and put down passengers within the State.

In 1887 sleeping cars were operated during a portion of the year between Nashville and Memphis, and did not pass beyond the limits of the State. It was agreed that, without either party waiving any rights, the plaintiff's claim would be abated $1,234.

Argument for Plaintiff in Error.

191 U. S.

The gross receipts of the plaintiff per year from lines running into the State of Tennessee was about five hundred thousand dollars. The gross receipts per year from passengers carried locally in Tennessee was about twenty-five thousand dollars. The cars actually used on all these lines during each year would number over one hundred.

Mr. John J. Vertres, with whom Mr. Charles T. Cates, Jr., Attorney General of the State of Tennessee, was on the brief, for plaintiff in error.

The only question in the case is a constitutional onewhether Acts 1887, ch. 1, sec. 5; Acts 1889, ch. 130, sec. 5; Acts 1891, Ex. Sess. ch. 25, sec. 5, of the Legislature of the State of Tennessee are in violation of article 1, sec. 8, sub-sec. 3 (the interstate commerce clause), of the Constitution of the United States.

The act of 1899 is not inimical to the Federal constitution. As to what is interstate commerce, see Fargo v. Michigan, 121 U. S. 230, 240.

The question to be determined, stated in general terms, is this: Where a sleeping-car company does both an interstate and an intra-state business, can a State tax the intra-state business? Or, stated otherwise: Does the fact that a sleepingcar company does an interstate business, as well as a local or intra-state business, deprive the States of the power to tax the local business?

Two well settled principles are to be noted. If the State of Tennessee is possessed of the power to impose this privilege tax, the amount of the tax is a question for the Legislature of Tennessee alone to decide. The only concern of this court is with the validity of the tax. All else lies beyond the jurisdiction which it has. Delaware R. R. Tax, 18 Wall. 231; Cal. & Pac. R. R. Co., 127 U. S. 141; Home Ins. Co. v. New York, 134 U. S. 594; Weston v. Charleston, 2 Pet. 449, 466; State Tax on Foreign-held Bonds, 15 Wall. 300, 319; Kirtland v. Hotchkiss, 100 U. S. 499; Street R. R. Co. v. Morrow, 87 Tennessee, 432;