A. 93, 14 S. W. 1024; Glover v. Equitable | R. Co. v. McCann, 174 U. S. 580, 43 L. ed. Mortg. Co. 31 C. C. A. 105, 59 U. S. App. 1093, 19 Sup. Ct. Rep. 755; Provident Inst. 151, 87 Fed. 518; Eastern Bldg. & L. Asso. for Savings v. Massachusetts, 6 Wall. 611, v. Bedford, 88 Fed. 7; London Assur. Co. v. 18 L. ed. 907; Fairfield v. Gallatin County, Companhia de Moagens do Barreiro, 167 U. 100 U. S. 47, 25 L. ed. 544; Bauserman v. S. 149, 42 L. ed. 113, 17 Sup. Ct. Rep. 785; Blunt, 147 U. S. 647, 37 L. ed. 316, 13 Sup. Penn Mut. L. Ins. Co. v. Mechanics' Sav. Ct. Rep. 466. Bank & Trust Co. 38 L. R. A. 33, 19 C. C. A. 286, 37 U. S. App. 692, 72 Fed. 413. The mortgage is a mere incident to the debt, and its situs is that of the debt it se cures, although it may cover property else where. Lauter v. Jarvis-Conklin Mortg. Trust Co. 29 C. C. A. 473, 54 U. S. App. 49, 85 Fed. 894; Pioneer Sav. & L. Co. v. Cannon, 96 Tenn. 599, 33 L. R. A. 112, 36 S. W. 386; Sullivan v. Sheehan, 89 Fed. 247; Electric Lighting Co. v. Rust, 117 Ala. 680, 23 So. 751; United States Sav. & L. Co. v. Shain, 8 N. D. 136, 77 N. W. 1006. The taking of the note and mortgage, and the payment of the money, did not constitute a transaction of business in Alabama by the petitioner. Beard v. Union & American Pub. Co. 71 Ala. 60; Sullivan v. Sullivan Timber Co. 103 Ala. 371, 25 L. R. A. 543, 15 So. 941. Mr. Oscar W. Underwood submitted the cause for respondents. Mr. William H. Denson was with him on the brief: To constitute engaging in or transacting any business in this state, within the meaning of the Alabama law, there must be a doing of some of the works, or an exercise of some of the functions, for which the corporation was created. Beard v. Union & American Pub. Co. 71 Ala. 60; Sullivan v. Sullivan Timber Co. 103 Ala. 371, 25 L. R. A. 543, 15 So. 941; State v. Bristol Sav. Bank, 108 Ala. 3, 18 So. 533; Farrior v. New England Mortg. Secur. Co. 88 Ala. 275, 7 So. 200. The association was doing business in Alabama. New York L. Ins. Co. v. Cravens, 178 U. S. 389, 44 L. ed. 1116, 20 Sup. Ct. Rep. 962; Equitable Life Assur. Soc. v. Clements, 140 U. S. 226, 35 L. ed. 497, 11 Sup. Ct. Rep. 822; State v. Bristol Sav. Bank, 108 Ala. 6, 18 So. 533; Farrior v. New England Mortg. Secur. Co. 88 Ala. 275, 7 So. 200; Mullens v. American Freehold Land Mortg. Co. 88 Ala. 280, 7 So. 201; Sullivan v. Sheehan, 89 Fed. 349. No state or nation will enforce any con-tract in its own courts, wherever it may be made, that is in disregard or violation of the public policy or positive legislation of such state. Gist v. Western U. Teleg. Co. 45 S. C. 344, 23 S. E. 143; Swing v. Munson, 191 Pa. 582, 58 L. R. A. 223, 43 Atl. 342; Seamans v. Temple Co. 105 Mich. 400, 28 L. R. A. 430, 63 N. W. 408; Cowan v. London Assur. Corp. 73 Miss. 321, 19 So. 298; Rose v. Kimberly & C. Co. 89 Wis. 545, 27 L. R. A. 556, 62 N. W. 526. What was done by the Chattanooga corporation in Alabama was "doing business" in Alabama, and a violation of the laws of Alabama. Suring v. Munson, 191 Pa. 582, 58 L. R. A. 223, 43 Atl. 342; Henni v. Fidelity Bldg. & L. Asso. 61 Neb. 744, 86 N. W. 475; Seamans v. Temple Co. 105 Mich. 400, 28 L. R. A. 430, 63 N. W. 408; Cowan v. London Assur. Corp. 73 Miss. 321, 19 So. 298. Mr. Justice McKenna delivered the opinion of the court: The question presented by the case is, Did the loan made by petitioner and the taking for security the note and mortgage under the circumstances presented by the record constitute a doing of business in the state, within the meaning of the Constitution and laws of the state? It was said by the supreme court of Alabama (Beard v. Union & American Pub. Co. 71 Ala. 60), that to constitute a doing of business within the state "there must be a doing of some of the works, or an exercise of some of the functions, for which the corporation was created." It was held, however, that receiving a subscription to a newspaper, or collecting the money therefor, was not doing business in the state "within the principle." In a subsequent case (Dudley v. Collier, 87 Ala. 431, 6 So. 304) the court announced that " a loan or borrowing of money by or from" a foreign corporation is a doing of business within the state, and The exposition given by the highest tri-"is an unlawful act, subjecting both the bunals of the state to its own Constitution and statutes constitutes a part of the law, as much as if embodied in it, and is as binding upon the courts of the United States as the text, and is conclusive on such courts. New York L. Ins. Co. v. Cravens, 178 U. S. 389, 44 L. ed. 1116, 20 Sup. Ct. Rep. 962; Louisiana v. Pilsbury, 105 U. S. 294, 26 L. ed. 1090; Leffingwell v. Warren, 2 Black, 599, 17 L. ed. 261; Erb v. Morasch, 177 U. S. 584, 44 L. ed. 897, 20 Sup. Ct. Rep. 819; Sioux City Terminal R. & Warehouse Co. v. Trust Co. of N. A. 173 U. S. 99, 43 L. ed. 628, 19 Sup. Ct. Rep. 341; Morley v. Lake Shore & M. S. R. Co. 146 U. S. 162, 36 L. ed. 925, 13 Sup. Ct. Rep. 54; Missouri, K. & T. U. S., Book 47. 189 U. S. 55 agents and company to a heavy penalty." In Farrior v. New England Mortg. Secur. Co. 88 Ala. 275, 7 So. 200, it was said that the Constitution prohibited the making of a single contract or the doing of a single 873 act of business by a foreign corporation in | and, if what was done in pursuance of it did the exercise of a corporate function, as not constitute doing business in the state, well as the engaging in or carrying on its the effect would be, as expressed by the cir business generally. To the same effect are cuit court of appeals, that petitioner “and Mullens v. American Freehold Land Mortg. other foreign associations engaged in the Co. 88 Ala. 280, 7 So. 201; Ginn v. New same business of loaning money on real seEngland Mortg. Secur. Co. 92 Ala. 135, 8 curity, may safely flood the state of AlaSo. 388; Sullivan v. Sullivan Timber Co. bama with soliciting agents, make all the 103 Ala. 371, 25 L. R. A. 543, 15 So. 941. negotiations for loans, take real-estate securities therefor, and fully transact all other business pertaining to their corporate functions as though incorporated therein, and yet neither be obliged to have a known place of business or any authorized agent within the state, nor pay any license tax or fee, as required of nonresident corporations doing business therein." These cases constitute an interpretation of the constitutional and statutory provisions, and clearly hold that any act in the exercise of corporate functions is forbidden to a foreign corporation which has not complied with the Constitution and statute, and that the contracts hence resulting are illegal and cannot be enforced in the courts. The case of Fritts v. Palmer, 132 U. S. 282, 33 L. ed. 317, 10 Sup. Ct. Rep. 93, does not relieve from the effect of the Alabama decisions and from the necessity of following them. The action was ejectment to recover certain real property in Colorado. The title of one of the parties was derived through the Comstock Mining Company, a Missouri corporation, which, before its pur The petitioner is a building and loan association. Its corporate purpose is to lend money to its stockholders. The respondent Denson was one of its stockholders, and, manifestly, regarding the essence of the transactions between them, they constituted a doing of business within the state of Alabama. But it is insisted that on account of the form and terms of the instruments and by operation of law the loans must be re-chase of the property, had been engaged garded as having been made in Tennessee. It is said: "The note and mortgage were drawn in Tennessee, and by their express terms were payable there. The note is dated on its face at Chattanooga, Tennessee, and expressly stipulates that it is made with reference to and under the laws of Tennessee.' *in the prosecution of its mining business in [416] And, further, that the petitioner's part of all the transactions was performed in the state of Tennessee," and only those acts which the borrower was required to do as a condition precedent to the loan of the money to him were performed in Alabama." It is hence deduced that the business done must be regarded as having been done in Tennessee. [415] *Counsel has discussed at some length the situs of contracts, and by the law of what place their obligation is determined. We think, however, that the discussion is not relevant. It withdraws our consideration from the Constitution and statute of Alabama; and, it is manifest, the contention based upon it, if yielded to, would defeat their purpose. The prohibition is directed to the doing of any business in the state in the exercise of corporate functions; and there can be no doubt that petitioner considered that it was exercising such functions in the state. Its secretary testified that "at the time the loan to defendant DenIt is urged by petitioner that it thought son was made complainant association had it had complied with the law of Alabama, been for some time soliciting subscriptions and that it was not an intentional offender to stock, and receiving applications for against it and therefore should not be “reloans, in the state of Alabama, and had pelled from court." But the latter consepaid a tax, or license fee, required under quence has been decided to result from nonthe laws of the state of Alabama for foreign compliance with the statute, and we cannot corporations proposing to do business in grant an exemption from it. The statute that state, and complainant's officers sup- makes no distinction between an inadvertent posed and understood that the payment of and a conscious violation of its provisions, this fee, or tax, was the only condition with and a familiar legal maxim precludes a dewhich it was necessary for them to comply fense based on that distinction. Nor can in order to be entitled to do business in that the payment of the license fee be urged as state." The application of Denson was pre-a justification for omitting to comply with sumably solicited as other applications were, the statute. Such payment was one con dition to be performed by a foreign corpo- | U. S. 557, 32 L. ed. 513, 9 Sup. Ct. Rep. 150; ration; the designation of a known place of Crane v. Crane, 5 Pet. 190, 8 L. ed. 92. business and an authorized agent was an- The writ should have issued, and the hearother, and was of so much importance as to ing of the questions involved should have be enjoined by the Constitution of the state. been had after a return thereto. It is contended that this case cannot be distinguished from Bedford v. Eastern Bldg. & L. Asso. 181 U. S. 227, 45 L. ed. 834, 21 Sup. Ct. Rep. 597, and must be ruled by that case. [417] *We think there is a marked distinction. In the Bedford Case the contract was legally entered into and was entitled to be enforced. In the case at bar the contract was made in violation of the statute of Alabama, and it cannot, therefore, claim the protection given to the contract in the other case. Decree affirmed. Mr. Justice Harlan dissents. EUGENE C. GORDON, for the use of Mary v. ARTHUR E. RANDLE. (See S. C. Reporter's ed. 417-420.) Kentucky v. Denniston, 24 How. 98, 16 L. ed. 726. "Discretion," when applied to a court of justice, means sound discretion guided by law. It must be governed by rule, not by humor; it must not be arbitrary, vague, and fanciful, but legal and regular. Rex v. Wilkes, 4 Burr. 2539; Ex parte Mackey, 15 S. C. 328. The court had no authority to hear the cause and render judgment on a legal holiday, and would not have had authority to do so, even though the express prohibition had been omitted from the statute. Lampe v. Manning, 38 Wis. 674; Michie v. Michie, 17 Gratt. 109; Butler v. Kelsey, 15 Johns. 177; Pulling v. People, 8 Barb. 384, 24 Am. & Eng. Enc. L. p. 574. Where power is given to public officers, in the language of the act before us, or in equivalent language, whenever the public interest or individual rights call for its exercise, the language used, though permissive in form, is in fact peremptory. What they are empowered to do for a third person the law requires shall be done. Courts duty to prolong term to settle bills of exceptions-not exercised unless inRock Island County v. United States, 4 voked-commencement of January term-Wall. 447, 18 L. ed. 423; Galena v. Amy, 5 effect of holiday. 1. The supreme court of the District of Columbla is not bound to prolong its term by the adjournment, authorized by rule 2 of that court, for "not longer than thirty-eight days" to enable bills of exceptions to be prepared, where its duty under such rule is not invoked. 2. The October term, 1900, of the circuit court although the first Tuesday in the following [No. 229.] Wall. 708, sub nom. Galena v. United States, The word "may" in a statute is sometimes used in a mandatory, and sometimes in a directory and permissive, sense. It has always been construed "must" or "shall" whenever it could be seen that the legislative intent was to impose a duty, and not simply a privlege or discretionary power, and when the public was interested, and the public or third persons had a claim de jure to have the power exercised. 14 Am. & Eng. Enc. L. p. 979. Mr. J. J. Darlington argued the cause and filed a brief for defendant in error: Mandamus does not lie to secure a reversal of a judicial determination, by the court below, of the question when the October Terin of the supreme court of the District of Columbia ends, under its rules, when Argued April 7, 1903. Decided April 27, the 1st Tuesday of the following January 1903. happens to fall upon a legal holiday. IN ERROR to the Court of Appeals of the 305; Ex parte Many, 14 How. 24, 14 L. ed. of Columbia to an order denying a petition for mandamus to require an associate justice of the Supreme Court of the District to settle a bill of exceptions. Affirmed. The facts are stated in the opinion. Mr. S. Herbert Giesy argued the cause, and, with Mr. Holmes Conrad, filed a brief for plaintiff in error: The writ of mandamus was the proper remedy to require the judge to settle and sign the bill of exceptions. Ex parte Chateaugay Ore & Iron Co. 128 Authorities to the effect that a power given to public officers, though by language indicating a discretion upon their part, is compulsory, and may be called into exercise by mandamus where necessary to de jure rights of third persons, are not applicable to the exercise of a discretion judicial in its nature. Rock Island County v. United States, 4 Verdicts may be received on Sunday. Jones v. Johnson, 61 Ind. 257; McCorkle v. State, 14 Ind. 39; People v. Odell, 1 Dak. 197, 46 N. W. 601; State v. Douglass, 69 Ind. 544; Johnston v. People, 31 Ill. 469. 627; Henderson v. Reynolds, 84 Ga. 159, 7 | been continued, and this resulted, it is conL. R. A. 327, 10 S. E. 734; Webber v. Mer- tended, from the following proceedings: rill, 34 N. H. 202; Stone v. Bird, 16 Kan. On the 7th day of January, 1901, the plain488; State v. Penley, 107 N. C. 808, 12 S. E. tiff, through his attorney, deposited with the 455; Hiller v. English, 4 Strobh. L. 486. clerk $50 in lieu of a bond on appeal, and And the jury inay be further instructed, moved the court that October term be proand any orders or motions incidental to re- longed by adjournment, in order to prepare ceiving the verdict may be made. a bill of exceptions. The motion was overruled on the ground that October term had ended on the 31st of December, 1900. Notice was given by the attorney for the plaintiff that he would present the "bill of exceptions to the court for settlement before Justice Bradley in the circuit court number 2." The bill was presented in pursuance of the notice, but Justice Bradley declined to settle the bill on the ground that October term had not been prolonged. The petition now under review was then presented to the court of appeals, praying "that the writ of mandamus may issue, requiring Andrew C. Bradley, an associate justice of the supreme court of the District of Columbia, to settle the bill of exceptions in this cause." The petition was dismissed. And bail may be taken. Watts v. Com. 5 Bush, 309; Hammons v. State, 59 Ala. 164, 31 Am. Rep. 13; Weldon v. Colquitt, 62 Ga. 449, 35 Am. Rep. 128. And even injunctions may issue on that day, in cases of necessity. Langabier v. Fairbury, P. & N. W. R. Co. 64 Ill. 247, 16 Am. Rep. 550. In the absence of special circumstances not arising from any fault or omission upon the part of the exceptant, the trial court is without power to settle or sign a bill of exceptions after the end of the term, unless, during the term, it has been continued for the purpose. Dredge v. Forsyth, 2 Black, 563, 17 L. ed. 253; Re Wight, 134 U. S. 136, sub nom. Wight v. Nicholson, 33 L. ed. 865, 10 Sup. Ct. Rep. 487: Müller v. Ehlers, 91 U. S. 250, 23 L. ed. 320; Michigan Ins. Bank v. Eldred, 143 U. S. 293, 36 L. ed. 162, 12 Sup. Ct. Rep. 450: Brown v. Bradley, 6 App. D. C. 207; Coc v. Morgan, 13 Fed. 844; Western Dredg. ing & Improc. Co. v. Heldmaier, 53 C. C. A. 625, 116 Fed. 179. The rules of court are a law to the court as well as to the suitors, so long as they remain in force, and cannot be dispensed with to meet the supposed hardships of particular cases. Talty v. District of Columbia, 20 App. D. ('. 489; Johnson v. Wright, 2 App. D. C. 220. Mr. Justice McKenna delivered the opinion of the court: The rule of the court in regard to bills of exceptions is as follows: "Sec. 2. The bill of exceptions must be settled before the close of the term, which may be prolonged by adjournment in order to prepare it, but not longer than thirty-eight days, exclusive of Sundays, save in case of a trial begun during a term, but not concluded until after the expiration of the term, *in[419) which case the trial justice may extend the term in his discretion in order to prepare a bill of exceptions." The case presents some anomalies. The mandamus was prayed against Justice Bradley for refusing to act officially; but the citation in error was directed to Arthur E. Randle, and he alone is defendant in error here. He was a party in the original cause, but not a party in the proceedings for mandamus. Making him a party here is attempted to be justified by the death of Justice Bradley and the action of the court of appeals in not entertaining the petition for mandamus. The immediate answer would seem to be that mandamus is itself an action, and can only, like other actions, be prosecuted against the parties to it, and that one of two effects resulted from the death of Justice Bradley: either the action abated, or could only be continued against the person who succeeded to his office and duty. The purpose of this writ is to review an order of the court of appeals of the District of Columbia, made March 12, 1901, denying a petition for mandamus to require Andrew C. Bradley, at that time an associate justice of the supreme court of the District of Columbia, to settle a bill of exceptions. 418] The plaintiff in error brought suit against defendant in error, in the supreme court of the District of Columbia, on the 20th day of But passing this, we think the main conApril, 1897, to recover the sum of $5,900, on tention of plaintiff in error is untenable. several causes of action. They need not be The argument of plaintiff is that the purdescribed nor the defenses which were inter-pose of the rule was to allow thirty-eight posed to them. It is enough to say that, upon the issues made, a verdict resulted for defendant in error, on the 16th of November, 1900. days for the settlement of bills of exceptions, and to afford time to do so the rule provided that the term might be prolonged by adjournment, and the duty of prolonging the On December 14, 1900, a motion for new term was imposed on the court. We do not trial was made by plaintiff and denied by so interpret the rule. It provided the the court, and judgment entered on the ver means for parties to secure the necessary diet. The plaintiff prayed for, and was al-time to present bills of exceptions. The lowed, an appeal to the court of appeals of the District. The case was tried and judgment entered at October term, 1900, which expired December 31, 1900, unless it had court was not required to anticipate the intention of parties. Its duty under the rule, like its other duties, was to be exercised when invoked. The operation of the sleeping cars, and the business in which plaintiff in error is engaged in Mississippi, constitute interstate commerce, and therefore the state cannot call such business a privilege, and impose a privilege tax thereon. Pickard v. Pullman Southern Car Co. 117 U. S. 34, 29 L. ed. 785, 6 Sup. Ct. Rep. 635; Crutcher v. Kentucky, 141 U. S. 47, 35 L. ed. 649, 11 Sup. Ct. Rep. 851; Leloup v. Port of Mobile, 127 U. S. 640, 32 L. ed. 311, 2 Inters. Com. Rep. 134, 8 Sup. Ct. Rep. 1380. But it is also insisted that a motion to Mr. William Burry argued the cause, prolong the term was made in time. The and, with Mr. J. S. Runnells, filed a brief argument to support this is that October for plaintiff in error: term did not end on the 31st of December, 1900, but continued until the 7th of January, 1901, because by rule 3 of the supreme court of the District of Columbia the January terms of the circuit court commence on the 1st Tuesdays in January, and that the 1st Tuesday of January, 1901, fell on the 1st of January, which, being a holiday, and therefore, as it is insisted, a dies non, the term did not commence until the following Tuesday, the 8th of January. We cannot concur in the contention. The term commenced on the 1st of January, and the only effect of the holiday was to deprive the court of the power of doing any business but to discharge those who had been required to attend until the succeeding day, when the general duties and powers of the court could be legally exercised. It follows, therefore, that there was no error in refusing to settle the bill of exceptions, and the petition for mandamus was properly denied. Order affirmed. There is a well-defined difference between a license tax affecting interstate commerce, which is void, and a properly proportioned property tax on property or capital stock engaged in interstate commerce. Adams Exp. Co. v. Ohio State Auditor, 165 U. S. 220, 41 L. ed. 695, 17 Sup. Ct. Rep. 305; American Refrigerator Transit Co. v. Hall, 174 U. S. 70, 43 L. ed. 899, 19 Sup. Ct. Rep. 599; Pullman's Palace Car Co. v. Pennsylvania, 141 U. S. 18, 35 L. ed. 613, 3 Inters. Com. Rep. 595, 11 Sup. Ct. Rep. 876; Postal Teleg. Cable Co. v. Adams, 155 U. S. 688, 39 L. ed. 311, 5 Inters. Com. Rep. 1, 15 Sup. Ct. Rep. 268, 360. If the interstate business and local business are necessarily so mixed as to preclude separation, a tax thereon is invalid. Ratterman v. Western U. Teleg. Co. 127 U. S. 411, 32 L. ed. 229, 2 Inters. Com. Rep. 59, 8 Sup. Ct. Rep. 1127; Leloup v. Port of Mobile, 127 U. S. 640, 32 L. ed. 311, 2 Initers. Com. Rep. 134, 8 Sup. Ct. Rep. 1380: State Freight Tax Case, 15 Wall. 277, sub nom. Philadelphia & R. R. Co. v. Pennsylvania, 21 L. ed. 162. Plaintiff in error is obliged to furnish sleeping accommodations to travelers local to Mississippi, as part of its interstate business, and therefore cannot carry on interstate business without subjecting itself to this privilege tax. Nevin v. Pullman Palace Car Co. 106 Ill. 222, 46 Am. Rep. 688; Elliott, Railroads, § 1617. The court will examine to see if exacting Argued and submitted December 19, 1902. a full license tax for accommodating a single INS Decided March 2, 1903. N ERROR to the Supreme Court of the State of Mississippi to review a judg ment affirming a judgment of the trial court in favor of plaintiff in an action to recover privilege taxes from a sleeping car company. Affirmed. See same case below, 78 Miss. 814, 29 So. 917. The facts are stated in the opinion. NOTE. On state regulation of interstate or foreign commerce-see notes to Norfolk & W. R. Co. v. Com. (Va.) 13 L. R. A. 107; McCanna & F. Co. v. Citizens' Trust & Surety Co. 24 C. C. A. 13: Ratterman v. Western U. Teleg. Co. 32 L. ed. U. S. 229; Harmon v. Chicago, 37 L. ed. U. S. 216; Cleveland, C. C. & St. L. R. Co. v. Backus, 38 L. ed. U. S. 1041: and Postal Teleg. Cable Co. v. Adams, 39 L. ed. U. S. 11. local passenger on an interstate car is not done to evade the Federal Constitution, and is not really a tax on interstate commerce. Crutcher v. Kentucky, 144 U. S. 47, 35 L. ed. 649, 11 Sup. Ct. Rep. 851; United States Exp. Co. v. Allen, 39 Fed. 712; Austin v. Tennessee, 179 U. S. 343, 45 L. ed. 224, 21 Sup. Ct. Rep. 132; Morgan's L. & T. R. & 8. 8. Co. v. Louisiana Bd. of Health, 118 U. S. 455, 30 L. ed. 237, 6 Sup. Ct. Rep. 1114. As to police power as affecting commercesee notes to People v. Budd (N. Y.) 5 L. R. A. 559; and State ex rel. Corwin v. Indiana & O. Oll, Gas. & Min. Co. (Ind.) 6 L. R. A. 579. On license taxes as affecting interstate commerce-see notes to Rothermel v. Meyerle (Pa.) 9 L. R. A. 366; and American Fertilizing Co. v. North Carolina Bd. of Agri. (C. C. E. D. N. C.) 11 L. R. A. 179. |