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simply between citizens of the same state. It is not necessary in this court to refer to the difference between residence and citizenship. Neither is synonymous with the other and neither includes the other. A British subject or a citizen of Ohio may be a resident of Tennessee, and entitled to the benefit of this statute. A citizen of Tennessee may, like these plaintiffs in error, be a resident of and doing business in Ohio and not entitled to its benefit. It will be time enough to consider the question discussed in the opinion when it appears that a state has attempted to discriminate between its own citizens and citizens of other states, and the courts of the state have affirmed the validity of such discrimination.

I am unable to concur in the opinion of the court in this case. In my judgment it misconceives the language of the statute, the issues presented by the pleadings, and the decision of the state court. The act does not discriminate between citizens of Tennessee and those of other states. Its language is creditors "residents of this state shall have a priority over all simple contract Taking the statute as it reads, and assumereditors being residents of any other coun- ing that the legislature of Tennessee meant try or countries." The allegation of the that which it said, the question is whether amended bill is, "your orators are all resi- a state, permitting a foreign corporation dents of the state of Tennessee, and were which is not engaged in interstate commerce such at the time the various debts sued on to come into its territory and there do busiin this cause were created," and that by vir- ness, has the power to protect all persons retue of the statute they are entitled to prior- siding within its limits who may have deality over the "defendant, Rogers, Brown, & ings with such foreign corporation, by reCo., and all other creditors of said insolvent quiring it to give them a prior security on corporation who do not reside in the state of its assets within the state. The principle[2644 Tennessee, or did not so reside at the time underlying this statute is that a state, their credits were given." The intervening which can have no jurisdiction beyond its petition of the plaintiffs in error, Blake and territorial limits, has the power in reference Rogers, Brown, & Co., alleges "that they are to foreign corporations permitted to do busiresidents of the state of Ohio, and were at ness therein to protect all persons within the times and dates hereinafter named en- those limits, whether citizens or not, in regaged in business in said state, their resi- spect to claims upon the property thereof dences, offices, and places of business being also within those limits. That a state may at the city of Cincinnati." The decree of keep such a corporation out of its territory the court of chancery appeals adjudges "that is conceded; and that, in permitting it to all of the creditors of said company who re-enter, the state may impose such conditions sided in the state of Tennessee are entitled to as it sees fit, is, as a general proposition, priority of payment out of all of the assets of also admitted. In Crutcher v. Kentucky, the company of every kind over all of the 141 U. S. 47, 59, [35: 649, 653], it was said: creditors of said company who do not reside "The insurance business, for example, canin the state of Tennessee." And the decree not be carried on in a state by a foreign corof the supreme court of the state is in sub-poration without complying with all the con[263]stantially the same language,_ adjudging ditions imposed by the legislation of that "that all of the creditors of the Embreeville state. So with regard to manufacturing Freehold Land, Iron, & Railway Company, corporations, and all other corporations Limited, who resided in the state of Tennes- whose business is of a local and domestic see, are entitled to priority of payment out nature, which would include express comof all of the assets of said company, both panies whose business is confined to points real and personal, over all of the other cred- and places wholly within the state. The itors of said company who do not reside in cases to this effect are numerous. Bank of the state of Tennessee, whether they be resi- Augusta v. Earle, 13 Pet. 519 [10: 274]; dents of other states of the United States or Paul v. Virginia, 8 Wall. 168 [19: 357]; Livof the Kingdom of Great Britain." So that erpool & L. L. & F. Insurance Company v. neither the statute, the pleadings, nor the Massachusetts, 10 Wall. 566 [19: 1029]; decree raise any question of citizenship, or Cooper Manufacturing Company v. Ferguson, give any priority of right to citizens of Ten- 113 U. S. 727 [28: 1137]; Philadelphia Fire nessee over citizens of other states, but only Association v. New York, 119 U. S. 110 [30: discriminate between residents, and give res- 342]." idents of the state a priority. I think it improper to go outside of a case to find a question which is not in the record simply because it may be discussed by counsel for one party, who apparently decline to recognize any difference between residence and citizenship. For all this record discloses, the plaintiffs in error other than the corporation may have been citizens of the state of Tennessee, temporarily residing and doing business in Ohio, and the controversy one

709.) As to the other plaintiffs in error,
citizens of Ohio, the judgment must be re-
versed, and the cause remanded for further
proceedings not inconsistent with this opin-
It is so ordered.

[262] *Mr. Justice Brewer, with whom the
Chief Justice concurred, dissenting:

Everyone dealing with a foreign corporation is bound to take notice of the statutes of the state imposing conditions upon that corporation in respect to the transaction of its business within the state, just as he must take notice of any mortgage or other encumbrance placed by the corporation upon its property there situated. A state may, and often does, provide that persons furnishing supplies to and doing work for a corporation shall have a lien upon the property of that

corporation prior to any mortgage. The foreign corporations to secure home credit validity of such legislation has always been ors, there are frequent illustrations of dissustained, and they who loan their money to crimination based upon the matter of resi. the corporation do so with notice of the dence. Often nonresident plaintiffs are relimitation, and have no constitutional right quired to give security for costs when none of complaint if their mortgage is thereafter is demanded of resident suitors. Attachpostponed to simple-contract obligations. If ments will lie in the beginning of an action, voluntarily the corporation placed a mortgage authorizing the seizure of property upon the upon all its assets within the state to secure ground that the defendant is a nonresident,

a debt to a single creditor residing within when no such seizure is permitted in case (265)* the state, and such mortgage was duly re- of resident defendants. These and many

corded, no one would have the hardihood to similar illustrations, which might be sug-
say that a resident or citizen of another state gested, only disclose that it has been accepted
could challenge its validity or its priority as a general truth that a state may discrim-
over his unsecured debt simply because he inate on the ground of residence, and that
was a citizen of another state, or did not, in such discrimination is not to be condemned
fact, know of its existence. And that which as one between citizens; and yet, if the doc-
is true in case of a mortgage to a single cred-trine of the opinion of the court in this case
itor would be equally true in case such for- be correct, I cannot see how those statutes
eign corporation placed a mortgage upon its can be sustained, for surely they discrimi-
assets to secure every creditor within the nate between nonresident and resident suit-
state. The number of creditors secured does not ors in the matter of fundamental rights, to
change the validity of the security or affect wit, the right of equal entrance into the
the matter of notice or relieve the foreign courts and equal security in the possession
creditor from the consequences of notice. of property.
If the corporation may vountarily place a It may not be uninteresting to notice the
mortgage upon all its assets within the state case of Fritts v. Palmer, 132 U. S. 282 (33:
to secure its creditors within the state, why 317). That case came from Colorado. The
may not the legislature require as a condi- statutes of that state, as quoted in the opin-
tion of its doing business that it give such a ion of the court, provided, among other
mortgage? Is the corporation more power things-
ful than the state? Is a voluntarily exe- “Sec. 260. Foreign corporations shall, be-
cuted mortgage more valid than a statute? fore they are authorized or permitted to do
If, in fact, in pursuance of such a statute a any business in this state, make and file a
mortgage to each separate creditor was given certificate signed by the president and sec-
and recorded as fast as the corporation came retary of such corporation, duly acknowl-
under obligation to him, could a nonresident edged, with the secretary of state,
creditor question the validity of the mort and no corporation doing business in
gage or the priority given thereby? And the state, incorporated under the laws of
is the effect of the statute in controversy any other state, shall be permitted to
anything other than the imposition upon the mortgage, pledge, or otherwise encumber
assets of the corporation within the state of its real or personal property situated in this
a single mortgage in favor of home creditors? state, to the injury or exclusion of any cit-
If written out and recorded, who could ques-izen, citizens, or corporations of this state
tion its validity or its priority? The stat. *who are creditors of such foreign corpora-[267]
ute in its spirit and effect does nothing more. tion, and no mortgage by any foreign corpo-
That it is prospective in its operation is im- ration, except railroad and telegraph com-
material-statutes generally are. The va- panies, given to secure any debt created in
lidity of an after-acquired property clause in any other state, shall take effect as against
a mortgage has become settled; none the less any citizen or corporation of this state un-
valid is it in a statute.

til all its liabilities due to any person or cor-
It is conceded in the opinion of the court poration in this state at the time of record-
that a foreign insurance corporation mighting such mortgage have been paid and ex-
be required to make a special deposit with tinguished.”
the state treasurer to secure local policy Commenting upon this section, and oth-
holders, but if it is within the constitutional ers, this court said (p. 288):
power of the state to require such special de- “No question is made in this case_indeed,
posit, and when made it becomes in fact a there can be no doubt-as to the validity of
security to the home policy holders, I am un- these constitutional and statutory provi.
able to appreciate why the state may not re- sions, so far, at least, as they do not directly
quire a general mortgage on all the assets affect foreign or interstate commerce. In

within the state as like security. Looking Cooper Manufacturing Co. v. Ferguson, 113 (266]at it *simply as a question of power on the U. S. 727, 732 (28: 1137, 1138], this court

part of the state, what difference can there said that 'the right of the people of a state
be between a pledge of a special fund and a to prescribe generally by its Constitution
mortgage of the entire fund within the and laws the terms upon which a foreign
state? And that which is true in respect to corporation shall be allowed to carry on its
an insurance corporation must also be true business in the state, has been settled by this
of any other corporation not engaged in in- court.""
terstate ommerce business.

It will be perceived that the statute of Col.
Indeed, aside from the demand made by orado restrained a foreign corporation from
the statutes of certain states of deposits by mortgaging, pledging, or otherwise encum.

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bering its property situate in the state to the the California creditors find that all the as-
injury or exclusion of any citizen of the sets of the corporation within their stato
state, creditor of such corporation, and fur. have been seized by creditors outside tho
ther provided that no mortgage given by state, and they are driven to the state of
such foreign corporation to secure a debt New York, where the corporation was or.
created in another state should take effect ganized, where its home office and home as-[269)
against any citizen of the state until all li. sets are, to see what share in the unappropri-
abilities due to any person or corporation ated assets they can obtain, while the New
in the state had been paid and extinguished. York creditors, by reason of their early in-
But this court said, and I think correctly, formation, secure full payment. Practically,
that there could be no doubt of the validity the effect is to compel the state to discrimi.
of these statutory provisions. It may be nate in favor of the New York against the
said, and said truthfully, that the attention home creditors. The suggestion that after
of the court was not specially directed to the New York creditors have perfected their
this particular portion of the statute, and liens upon the assets in California, the courts
hence that the decision cannot be taken as of that state will stay proceedings until they
authority. Yet the section was spread be see that the New York courts have given full
fore the court, it is quoted in its opinion, protection to the California creditors in the
and it was so obviously constitutional that assets in New York, is visionary and imprac-
neither counsel nor court had any doubt ticable. There may be assets in twenty
thereof. I note this case in order to suggest states, and there is no control by the courts
the objectionable evolution of the thought of one state over proceedings in the courts of
that a state may not protect those persons other states. Of course, if the California
who are within its jurisdiction in respect to courts can wait till the New York courts

property also within its jurisdiction, or im. have acted, the converse is also true, and so (268]pose conditions on *foreign corporations doing a game of seesaw may be established between

business therein, which amount to such pro- the courts of the two states. For these,
tection. Ten years ago a statute of Colorado among other reasons, I am constrained to
guaranteeing priority to citizens of the state dissent from this opinion and judgment.
over all other creditors, even those by mort- I am authorized to state that the Chief
gage, was by all parties, counsel, and by court, Justice concurs in this dissent.
conceded to be free from objection, while to:
day a statute of Tennessee, in no way dis-
criminating between citizens, but only be
tween residents and in respect to foreign cor-

porations, is declared to be so plainly at va-
riance with the Constitution of the United
States that it must be adjudged void.

The doctrine of this opinion is that a state
has no power to secure protection to persons

(See S. C. Reporter's ed. 269–303.)
within its jurisdiction, citizens or nonciti.
zens, in respect to property also within its Due process of law-cost of public improve
jurisdiction, because, forsooth, such protec-

ment-special assessment, when invalid
tion may in some cases work to the disad-

injunction-special benefits —taking of vantage of one who is not only a nonresident

private property for public use, without
but also not a citizen of the state. It seems to

me that the practical working out of this doc-
trine will be, not that the state may not dis- 1. Due process of law requires compensation
criminate in favor of its own residents as

to be made or secured to the owner of private
against nonresidents, but that the state

property when it is taken by a state, or un-
must discriminate in favor of nonresidents

der its authority, for public use.
and against its own residents. Take this il- 2. The exaction from the owner of prlvate

property, of the cost of a public improvement
lustration: A corporation organized and

in substantial excess of the special benefits having its home office in New York comes in.

accruing to him, is, to the extent of such ex-
to California to do business. The state of cess, a taking, under the guise of taxation,
California attempts to require that its as. of private property for public use without
sets within the state shall be kept as a pri-

mary security for home creditors. This 3. A special assessment upon abutting prop-
court declares that such requisition is un.

erty by the front foot, without taking spe-
constitutional. The solvency or insolvency

cial benefits into account, for the entire cost of that New York corporation will be known

and expense of opening a street, including, in New York by those who are nearer to its

not only the amount to be paid for the land,

but the cost and expense of the proceedings,
home office sooner than by people in Cali-

Is a taking of private property for public use
fornia. Insolvency is impending. The cred- without compensation.
itors in New York, near the home office, and 4. An injunction against a special assessment
familiar therefore with its exact condition, which is illegal because it rests upon a basis
ascertaining its approaching insolvency, send that excludes any consideration of benefits
to California, where there are assets, and,

should enjoin the whole assessment, without
availing themselves of the ordinary statu-

considering whether the amount is in excess tory provisions of that state, seize by at- 15. Payment or tender of the amount of bene

of the special benefits to the property, or not. tachment all the assets there situated. The

fits received from an improvement 18 not insolvency is thereafter made public, and

necessary in order to obtain an injunction

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against an Illegal assessment which is based narrow, straighten, extend, keep in order,

a rule or system that has no reference to and repair, and light streets, alleys, public special beneats.

grounds, and buildings, wharves, landing (No. 34.)

places, bridges, and market spaces within the

corporation, and to appropriate private propSubmitted May 3, 1898. Decided December erty for the use of the corporation. And 12, 1898.

“each city and village may appropriate, enter

upon, and hold real *estate within its corpo-[272] A ,

Court of the United States for the South more shall be taken or appropriated than 1s ern District of Ohio ad judging that a certain reasonably necessary for the purpose to assessment for opening a street is in viola- which it is to be applied: 1. For opening, tion of the constitutional amendment forbid- widening, straightening

and extending ding deprivation of property without due streets, alleys, and avenues; also for obtainprocess of law. Affirmed.

ing gravel or other material for the improveSee same case below, 74 Fed. Rep. 997.

ment of the same, and for this purpose the The facts are stated in the opinion.

right to appropriate shall not be limited to Mr. William E. Bandy for appellant. lands lying within the limits of the corporaMr. Charles W. Baker for appellee.

tion. .. 1 Rev. Stat. Ohio (1890) $ 1692,

subdiv. 18 and 33, and § 2232, pp. 429, 430, DETO). *Mr. Justice Harlan delivered the opin. title, Cities and Villages ; Enumeration of 'ion of the court:

Powers, and p. 572, title, Appropriation by This case arises out of the condemnation Cities and Villages of Private Property to of certain lands for the purpose of opening a Public Use. street in the village of Norwood, a municipal Other provisions of the statute prescribe corporation in Hamilton county, Ohio. the steps to be taken in the appropriation by

The particular question presented for con- a municipal corporation of private property

sideration involves the validity of an ordi- for public purposes. $9 2233 to 2261 in 171jnance of that village, assessing upon *the ap

clusive. pellee's land abutting on each side of the new It is further provided by the statutes of street an amount covering, not simply a sum Ohio (1890) title XII. Assessments, etc., equal to that paid for the land taken for the chap. 4, as follows: street, but, in addition, the costs and ex- "§ 2263. When the corporation appropripenses connected with the condemnation pro- ates, or otherwise acquires, lots or lands for ceedings.

the purpose of laying off, opening, extend. By the final decree of the circuit court of ing, straightening, or widening a street, al. the United States it was adjudged that the ley, or other public highway, or is possessed assessment complained of was in violation of of property which it desires to improve for the Fourteenth Amendment of the Constitu- street purposes, the council may assess the tion of the United States forbidding any cost and expenses of such appropriation or state from depriving a person of property acquisition, and of the improvement, or of without due process of law; and the village either, or of any part of either, upon the was perpetually enjoined from enforcing the general tax list, in which case the same shall assessment. 74 Fed. Rep. 997.

be assessed upon all the taxable real and per. The present appeal was prosecuted direct. sonal property in the corporation. ly to this court, because the case involved the "g 2264. In the cases provided for in the construction and application of the Consti- last section, and in all cases where an imtution of the United States.

provement of any kind is made of an existIt will conduce to a clear understanding of ing street, alley, or other public highway, the case to ascertain the powers of the vil. the council may decline to assess the costs lage under the Constitution and statutes of and expenses in the last section mentioned or Ohio, and to refer somewhat in detail to the any part thereof, or the costs and expenses proceedings instituted for the opening of the or any part thereof of such improvement, street through appellee's property.

except as hereinafter mentioned, on the genBy the Constitution of Ohio it is declared : eral tax list, in which event such costs and "Private property shall ever be held invio- expenses, or any part thereof which may not late, but subservient to the public welfare. be so assessed on the general tax list, shall When taken in time of war or other public be assessed by the council on the abutting exigency imperatively requiring its immedi. and such adjacent and contiguous or other ate seizure, or for the purpose of making or benefited lots and lands in the corporation, repairing roads, which shall be open to the either in proportion to the benefits which public, without charge, a compensation shall may result from the improvement, 'or accord-[273] be made to the owner, in money, and in all ing to the value of the property assessed, or other cases, where private property shall be by the front foot of the property bounding taken for public use, a compensation therefor and abutting upon the improvement, as the shall first be made in money; and such com-council by ordinance setting forth specifically pensation shall be assessed by a jury, with the lots and lands to be assessed, may de out deduction for benefits to any property of termine before the improvement is made, and the owner.” Const. Ohio 1851, art. 1, § 19, in the manner and subject to the restrictions Bill of Rights; Bates's Anno. Ohio Stat. vol. herein contained; and the assessments shall 3, p. 3525.

be payable in one or more instalments, and Cities and villages in Ohio are by statute at such times as the council may prescribe. given power to lay off, establish, open, widen,

1 Rev. Stat. Ohio, p. 581.

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Section 2271 provides: “In cities of the of any improvement contemplated in this first grade of the first class, and in corpora- chapter shall include the purchase money of tions in counties containing a city of the first real estate, or any interest therein, when the grade of the first class, the tax or assess- same has been acquired by purchase, or the ment especially levied or assessed upon any value thereof as found by the jury, where the lot or land for any improvement shall not, same has been appropriated, the costs and except as provided in g 2272, exceed twenty- expenses of the proceedings, the damages asfive per centum of the value of such lot or sessed in favor of any owner of adjoining land after the improvement is made, and the lands and interest thereon, une costs and excost exceeding that per centum shall be paid penses of the assessment, the expense of the by the corporation out of its general revenue; preliminary and other surveys, and of print

and whenever any street or avenue ing, publishing the notices and ordinances reis opened, extended, straightened, or widened, quired, including notice of assessment, and the special assessment for the cost and ex- serving notices on property owners, the cost pense, or any part thereof, shall be assessed of construction, interest on bonds, where only on the lots and lands bounding and bonds have been issued in anticipation of the abutting on such part or parts of said street collection of assessments, and any other necor avenue so improved, and shall include of essary expenditure." such lots and lands only to a fair average By an ordinance approved October 19th, depth of lots in the neighborhood, but shall 1891, the village declared its intention to conalso include other lots and parts thereof and demn and appropriate, and by that ordinance lands to such depth; and whenever at least condemned and appropriated, the lands or one half in width of any street or avenue has grounds in question for the purpose of openbeen dedicated for such purpose from the lots ing and extending Ivenhoe avenue; and in or. and lands lying on one side of the line of such der to make such appropriation effectual, the street or avenue, and such street or avenue ordinance directed the institution of the necis widened by taking from lots and lands on essary proceedings in court for an inquiry the other side thereof, no part of the cost and and assessment of the compensation to be expense thus increased (incurred] shall be paid for the property to be condemned. assessed upon the lots and lands lying on The ordinance provided that the cost and said first-mentioned side, but only upon the expense of the condemnation of the property, other side, and as aforesaid, but said special including the compensation paid to the ownassessment shall not be in any case in excess ers, the cost of the condemnation proceedings, of benefits.” 1 Rev. Stat. Ohio, p. 513. the cost of advertising and all other costs

Section 2272 relates to assessments for im. and the interest on bonds issued, if any, provements made in conformity with the pe. should be assessed "per front foot upon the tition of the owners of property.

property bounding and abutting on that By section 2277 it is provided that “in part of Ivenhoe *avenue, as condemned and[ 2753 cases wherein it is determined to assess the appropriated herein"—the assessments paya. whole or any part of the cost of an improve- ble in ten annual instalments if deferred, and

ment upon the lot or lands bounding or abut. the same collected as prescribed by law and (274]ting *upon the same, or upon any other lots in the assessing ordinance thereafter to be

or lands benefited thereby, as provided in $ passed.
2264, the council may require the board of Under that ordinance, application was
improvements, or board of public works, as made by the village to the probate court of
the case may be, or may appoint three dis Hamilton county for the empaneling of a ju-
interested freeholders of the corporation or ry to assess the compensation to be paid for
vicinity, to report to the council an estimated the property to be taken. A jury was accord-
assessment of such cost on the lot or lands ingly empaneled, and it assessed the plain-
to be charged therewith, in proportion, as tiff's compensation at $2,000, declaring that
nearly as may be, to the benefits which may they made the "assessment irrespective of
result from the improvement to the several any benefit to the owner from any improve-
lots or parcels of land so assessed, a copy of ment proposed by said corporation."
which assessment shall be filed in the office The assessment was confirmed by the court,
of the clerk of the corporation for public in the amount assessed was paid to the owner,

and it was ordered that the village have imSection 2284 is in these words: “The cost | mediate possession and ownership of the 172 U. S.


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