strumentalities provided by a State for the purpose of raising the public revenue by way of taxation, and it may be made. the duty of such board to make an original assessment on corporations such as traction companies, and, where no appeal is provided, its decision is conclusive except as proceedings for relief may be taken in the courts, and, in so far as the board is one of review its decisions are equally conclusive as in case of original assessments. A board of equalization acting under the constitution and laws of a State represents the State, and its action is that of the State. But the provisions of the Fourteenth Amendment of the Federal Constitution are not confined to the action of the State through its legislature, or through the executive or judicial authority. Those provisions cover and relate to all the instrumentalities through which the State acts; therefore, whoever by virtue of public position under the government of a State deprives another of any right guaranteed by that amendment against deprivation by the State, violates such constitutional inhibition, so that, as he acts for the State and in the State's name and is clothed with the powers of the State, his act is that of the State. It follows, then, that when the action of taxing bodies is in effect the action of the State it is reviewable in the Federal courts at the instance of one who claims that he has been thereby deprived of his property without due process of law and has been denied the equal protection of the law. And it is held that the action of a board of equalization resulting in illegal discrimination, not being an action forbidden by the state legislature, is not beyond review by the Federal courts under the Fourteenth Amendment.32 See State of Missouri v. Dockery, 191 U. S. 165, 24 Sup. Ct. 53, 48 L. ed. 133 (judgment of board as to tax on corporation final); Pittsburg, Cincinnati, Chicago & St. Louis Ry. Co. v. Backus, 154 U. S. 421, 14 Sup. Ct. 1114, 38 L. ed. 1031; Whitbeck v. Mercantile Nat. Bank, 127 U. S. 193, 8 Sup. Ct. 1121, 32 L. ed. 118; Williams v. Supervisors of Albany, 122 U. S. 154, 30 L. ed. 1088, 7 Sup. Ct. 1244; Cummings v. Nat. Bank, 101 U. S. 153, 30 L. ed. 1088, 7 Sup. Ct. 1244; Cochise, County of, v. Copper Queen Consol. Min. Co. (Ariz., 1903), 71 Pac. 946; Foster v. Rowe, 128 Wis. 326, 107 N. W. 635. 32 Raymond v. Chicago Union Traction Co., 207 U. S. 20, 35, 36, 52 L. ed. 7, 28 Sup. Ct. 7, aff'g 114 Fed. § 183. Delegation to Commissioners by Courts-Construction of Street Railroads-Appointment by Circuit Judge of Commissioners of Equalization.-The constitution of New York provides that no law shall authorize the construction or operation of a street railroad except upon the condition that the consent of the owners of one-half in value of the property bounded on, and the consent also of the local authorities having the control of that portion of a street or highway upon which it is proposed to construct or operate such railroad be first obtained, or in case the consent of such property owners cannot be obtained, the appellate division of the Supreme Court, in the department in which it is proposed to be constructed, may, upon application, appoint three commissioners who shall determine, after a hearing of all parties interested, whether such railroad ought to be constructed or operated, and their determination, confirmed by the court, may be taken in lieu of the consent of the property owners.33 This provision does not, however, apply to the streets of New York City, the titles to which are in the city.34 If commissioners, acting under this provision, make a report adverse to the construction of the road, it is held that there is no power in the appellate division to set aside, conform or review their determination.35 But if the commissioners are divided, the court may confirm the report of the majority.36 The restriction also applies as well to a part of as to a complete road," and additional but not inconsistent restrictions may be imposed.38 557, distinguishing Barney v. City of New York, 193 N. Y. 430. See citations under last preceding note herein. "New York Const., art. III, § 18. "Matter of Gilbert Elev. R. Co., 70 N. Y. 361, 30 Abb. N. C. 434, aff'g 9 Hun, 303. "Nassau Elec. R. Co., In re, 40 N. Y. Supp. 334, 6 App. Div. 141. "Port Chester St. Ry. Co., In re, 43 App. Div. 536, 60 N. Y. St. R. 160. "Matter of Metropolitan Transit Co., 111 N. Y. 588, 20 N. Y. St. R. 516, 19 N. E. 645, aff'g 15 N. Y. St. R. 977, 1 N. Y. Supp. 114, 19 N. E. 645. 38 Matter of Thirty-Fourth St. R. Co., 102 N. Y. 343, 7 N. E. 172, rev'g 37 Hun, 442. Examine further as to the effect of these constitutional provisions on pre-existing corporations, Ingersoll v. Nassau Elec. R. Co., 17 N. Y. 453; Matter of Third Ave. R. Co., 121 N. Y. 536, 31 N. Y. St. R. 693, 24 N. E. In Wisconsin a statute is not unconstitutional as conferring on a circuit judge non-judicial duties where it empowers such judge, upon application made with proof of notice, to appoint commissioners of equalization to perform duties in cities and other political subdivisions within the county.30 § 184. Delegation of Powers-Power of Courts in Relation to-Power of Over Municipalities, Common Council Commissioners of Waterworks, Railroad Commissions, and Over Other Courts, etc.-Police Power.40-In view of the three great and separate divisions, made by the Constitution, of the powers of a State into the legislative, judicial and executive, a city assembly cannot be restrained by a Circuit Court from enacting an ordinance granting to a street railroad company a right of way in the city's streets.41 So a statute may confer upon a board of public officers, such as the commissioners of waterworks, a discretion to make a contract with the "lowest and best bidder," and this discretion cannot be controlled by mandamus.42 Nor does the Supreme Court of Louisiana act as a supervisory or administrative board, but only as a judicial body in taking cognizance of and adjudicating disputed matters arising between the railroad commission and state railroads.43 And the determination of the board of railroad commissioners of New York, whether or not a certificate shall be issued that public convenience and necessity require the construction of a proposed railroad, does not constitute a subject for judicial revision.44 Again, few principles are better settled in the courts of this country than this, that where the legislative powers are delegated to a municipal corpo 951, rev'g 56 Hun, 537, 9 N. Y. Supp. 833, 31 N. Y. St. R. 645. 43 3 Morgan's Louisiana & Texas Rd. & Steamship Co. v. Railroad Com39 Foster v. Rowe, 128 Wis. 326, mission, 109 La. 247, 33 So. 214. See 107 N. W. 635. 40 See §§ 136, 200, herein. 41 Albright v. Fisher, 164 Mo. 56, 64 S. W. 106. Railroad Commission v. Weld (Tex. 42 State of Ohio ex rel. Walton v. E. 1088, aff'g 81 N. Y. Supp. 20, 81 Hermann, 63 Ohio St. 440. App. Div. 242, ration, its discretion within the legitimate sphere of its authority is proportionately as wide as is the like discretion possessed by the legislature of the State, "and as free from outside interference, and that discretion is not subject to judicial revision or reversal." 45 Municipal corporations are not, however, completely beyond judicial review and control, and such corporations, even in the exercise of the discretion and jurisdiction delegated to them by the legislature, may be subject to judicial review and control, although such discretion must and will be accorded broad scope and great deference, and the honest judgment of the authorities of a municipality as to what is promotive of the public welfare must ordinarily control notwithstanding it may not accord with the views of the courts. The delegation of legislative power to subordinate political divisions of the State is solely for public purposes and must, therefore, be exercised solely with reference to them. If an act be so remote from every such purpose that no relation thereto can within reason be discovered, such act must be excluded from the delegation. To that extent, then, courts will inquire into the purpose and policy of municipal conduct, and will hold unauthorized, and invalid, acts which are wholly unreasonable. This rule applies to and makes invalid a village ordinance conferring franchises upon and making a contract with a corporation binding the village and its municipal successors for a term of thirty years, and practically for fifty years, to take all its lights from a corporation and pay for them during the entire period at rates definitely fixed therein considerably in excess of rates paid elsewhere, under similar circumstances, no reservation being made in favor of the power and control of the village except of "such rights as it cannot waive," and this is especially so where other provisions evidence an intent to benefit the corporation irrespective of the public welfare, and it also appears that the village has a population sufficient to make it a city and immediately adjoin a city, the gas electrical facilities of which will without "Barber Asphalt Paving Co. v. French, 158 Mo. 534, 58 S. W. 934, per Gantt, C. J. reasonable doubt be speedily extended to such village." So where a duty of promulgating reasonable rules and regulations as to the occupancy by a telephone company of city streets is devolved in the first instance upon the common council of a city, upon application made by the company, and the act of such council involves discretion, a court will not prescribe in advance what such action shall be, or how to act, but it may compel some action. And where the company possesses a legislative franchise to occupy such streets, subject only to the police power of the municipality, it has the right on proper application to have such police power exercised by the approval of its plans and the prescribing of reasonable regulations.47 Again, it is held that the Circuit Court of Missouri cannot interfere with the exercise of the administrative discretion conferred upon a county court to allow or refuse a petition to grant to a railroad company the use of city streets.48 Nor will the Supreme Court of Tennessee interfere with the grant by the county court of a second ferry franchise to another person than the grantee of the first franchise, even though public exigency does not demand two ferries. And whether the statutes of a State authorize the incorporation of a bridge company to construct a bridge over a navigable river separating it from another State; whether such statutes confer the right of eminent domain on a corporation of another State, and whether such a corporation can exercise therein powers other than those conferred by the State of its creation, are all questions of state law, involving no Federal questions, and the rulings of the highest court of the State are conclusive upon the Federal Supreme Court.50 Whatever is contrary to public policy or inimical to the public interests is subject to the police power of the State, and is within legislative control; 4o Le Feber v. West Allis, 119 Wis. 608, 97 N. W. 203. 47 State ex rel. Wisconsin Metropolis Telephone Co. v. City of Milwaukee (Wis., 1907), 113 N. W. 40, 41. Southern Ry. Co. v. St. Louis, 92 Mo. 160, 4 S. W. 664. 49 Guinn v. Eaves, 117 Tenn. 524, 101 S. W. 1154. 50 Stone v. Southern Illinois & Missouri Bridge Co., 206 U. S. 267, 51 48 St. Louis, Iron Mountain & L. ed. 1057, 27 Sup. Ct. |