far as it related to the coupon contract, the judgment also gave effect
to subsequent statutes; and this court has jurisdiction of the case;
(5) that the rights acquired by the plaintiff under the judgment were
not lost or disturbed by the repeal, after judgment, of the act of 1882.
McCullough v. Virginia, 102.
6. Chapter 31 of the acts of Tennessee of 1877, entitled "An act to declare
the terms on which foreign corporations organized for mining or manu-
facturing purposes may carry on their business, and purchase, hold and
convey real and personal property in this State," provided that corpora-
tions organized under the laws of other States and countries, for pur-
poses named in the act, might carry on within that State the business
authorized by their respective charters, but "that creditors who may be
residents of this State shall have a priority in the distribution of assets,
or subjection of the same, or any part thereof, to the payment of debts
over all simple contract creditors, being residents of any other country
or countries, and also over mortgage or judgment creditors, for all
debts, engagements and contracts which were made or owing by the
said corporations previous to the filing and registration of such valid
mortgages, or the rendition of such valid judgments. Held, that, as no
question had been made in the state court that the individual plaintiffs
in error were not citizens of, but only residents in, Ohio, that question
could not be considered; and as the manifest purpose of the act was to
give to all Tennessee creditors priority over all creditors residing out of
that State, without reference to the question whether they were citi-
zens or only residents in some other State or country, the act must be
held to infringe rights secured to the plaintiffs in error, citizens of Ohio,
by the provision of Sec. 2 of Art. IV of the Constitution declaring that
the citizens of each State shall be entitled to all privileges and immu-
nities of citizens in the several States, although, generally speaking, the
State has the power to prescribe the conditions upon which foreign
corporations may enter its territory for purposes of business. Blake
v. McClung, 239.
7. It is not in the power of one State, when establishing regulations for
the conduct of private business of a particular kind, to give its own
citizens essential privileges, connected with that business, which it
denies to citizens of other States. Ib.
8. When the general property and assets of a private corporation. law-
fully doing business in a State, are in course of administration by the
courts of said State, creditors who are citizens of other States are en-
titled, under the Constitution of the United States, to stand upon the
same plane with creditors of like class who are citizens of such State,
and cannot be denied equality of right simply because they do not
reside in that State, but are citizens residing in other States of the
Union. Ib.
9. While the members of a corporation are, for purpose of suit by or
against it in the courts of the United States, to be conclusively pre-
sumed to be citizens of the State creating it, the corporation itself is
not a citizen within the meaning of the provision of the Constitution
that the citizens of each State shall be entitled to all privileges and
immunities of citizens in the several States.
10. The said statute of Tennessee, so far as it subordinates the claims of
private business corporations not within the jurisdiction of that State
(although such private corporations may be creditors of a corporation
doing business within the State under the authority of that statute) to
the claims against the latter corporation of creditors residing in Ten-
nessee, is not a denial of the equal protection of the laws secured by
the Fourteenth Amendment to persons within the jurisdiction of the
State, however unjust such a regulation may be deemed. Ib.
11. The principle underlying special assessments upon private property to
meet the cost of public improvements is that the property upon which
they are imposed is peculiarly benefited, and therefore that the
owners do not in fact pay anything in excess of what they receive by
reason of such improvement. Norwood v. Baker, 269.
12. The exaction from the owner of private property of the cost of a public
improvement in substantial excess of the special benefits accruing to
him is, to the extent of such excess, a taking, under the guise of taxa-
tion, of private property for public use without compensation; but,
unless such excess of cost over special benefits be of a material charac-
ter, it ought not to be regarded by a court of equity, when its aid is
invoked to restrain the enforcement of a special assessment. Ib.
13. The constitution of Ohio authorizes the taking of private property for
the purpose of making public roads, but requires a compensation to be
made therefor to the owner, to be assessed by a jury, without deduction
for benefits. The statutes of the State, quoted or referred to in the
opinion of the court, make provisions for the manner in which this
power is to be exercised. In the case of the opening of a new road,
they authorize a special assessment upon bounding and abutting
property by the front foot for the entire cost and expense of the im-
provement, without taking special benefits into account. The alleged
improvement in this case was the construction through property of the
appellee of a street 300 feet in length and 50 feet in width, to connect
two streets of that width running from each end in opposite directions.
In the proceedings in this case the corporation of Norwood manifestly
went upon the theory that the abutting property could be made to bear
the whole cost of the new road, whether it was benefited or not to the
extent of such cost, and the assessment was made accordingly. This
suit was brought to obtain a decree restraining the corporation from
enforcing the assessment against the plaintiff's abutting property, which
decree was granted. Held, that the assessment was, in itself, an ille-
gal one, because it rested upon a basis that excluded any consideration
of benefits; that therefore a decree enjoining the whole assessment
was the only appropriate decree; that it was not necessary to tender,
as a condition of relief being granted to the plaintiff, any sum as rep-
resenting what she supposed, or might guess, or was willing to con-
cede was the excess of costs over any benefits accruing to the property;
and that the legal effect of the decree was only to prevent the enforce-
ment of the particular assessment in question, leaving the corporation
free to take such steps as might be within its power, to make a new
assessment upon the plaintiff's abutting property for so much of the
expense of opening the street as might be found equal to the special
benefits accruing to the property. lb.
14. It was within the power of Congress to validate the bonds in question
in this proceeding, issued by the authorities of the Territory of Arizona,
to promote the construction of a railroad. Utter v. Franklin, 416.
15. A suit brought by the receivers of a railroad against the Attorney Gen-
eral of the State of Alabama and the Solicitor of the Eleventh Judicial
Circuit of that State, to restrain them, as officers of the State, from
taking steps to enforce against the complainants the provisions of a
law of that State reducing the tolls which had been exacted of the
public under a prior law for crossing on a bridge of the railroad over a
river, is a suit against the State, and this court accordingly reverses the
judgment of the court below, adjudging that the latter law was un-
constitutional and void, and that the defendants should not institute
or prosecute any indictment or criminal proceeding against any one
for violating the provisions of that act, and directed the court below
to dissolve its injunction restraining the institution or prosecution of
indictments or other criminal proceedings so instituted in the state
courts, and to dismiss the suit so brought by the receivers against the
Attorney General of Alabama and the Solicitor of the Eleventh
Judicial Circuit of that State. Fitts v. McGhee, 516.
16. The provision in section 5897 of c. 89, art. 4 of the Revised Statutes of
Missouri, that "in all suits upon policies of insurance against loss or
damage by fire, hereafter issued or renewed, the defendant shall not be
permitted to deny that the property insured thereby was worth at the
time of the issuing of the policy the full amount insured therein on said
property; and in case of total loss of the property insured, the measure
of damage shall be the amount for which the same was insured, less
whatever depreciation in value below the amount for which the prop-
erty is insured the property may have sustained between the time of
issuing the policy and the time of the loss, and the burden of proving
such depreciation shall be upon the defendant; and in case of partial
loss, the measure of damages shall be that portion of the value of the
whole property insured, ascertained in the manner hereinafter described,
which the party injured bears to the whole property insured;" and the
provision in section 5898 " that no condition of any policy of insurance
contrary to the provisions of this article shall be legal or valid," are not
when applied to a foreign insurance corporation insuring property
within the State in conflict with the provisions of the Fourteenth
VOL. CLXXII-47
Amendment to the Constitution of the United States, forbidding a
State to make or enforce a law which shall abridge the privileges or
immunities of citizens of the United States, or to deprive any person
of life, liberty or property without due process of law; or to deny to
any person, within its jurisdiction, the equal protection of the laws.
Orient Insurance Co. v. Daggs, 557.
17. A corporation is not a citizen within the meaning of that Amendment,
and hence has not the privileges and immunities secured to citizens
against state legislation. Ib.
18. That which a State may do with corporations of its own creation it may
do with foreign corporations admitted into it. Ib.
See CORPORATION, 5 to 9;
PATENT FOR INVENTION, 1.
The claim made in the court below that the provision in the constitution
of Maryland which abridged the right of trial by jury in the courts
of the city of Baltimore without making a similar provision for the
counties of the State denied to litigants of the city the equal protec-
tion of the laws, is not tenable. Chappell Chemical &c. Co. v. Sulphur
Mines Co. (No. 3), 474.
The plaintiffs contracted with the United States to construct a dry dock
at the Brooklyn Navy Yard according to plans and specifications, and
to be built upon a site that was available. No provision was made
in regard to quicksands should they come upon such in making the
foundations. The main features of the contract are stated in detail
in the statement of the case. In executing the said contract the
contractors came upon shifting quicksands, by reason of which the
work was made more difficult, and was much increased; and being
unable to complete the work within the time specified in the con-
tract, they asked for an extension, which was granted. On comple-
tion a settlement was had, all the money remaining due under the
contract, and some that was due for extra work, was paid. It was
not until about three years later that the claim for compensation for
the extra labor and materials made necessary by the quicksand was
made; and, when it was refused, this action to recover it was brought
in the Court of Claims, and there decided adversely to the claimants.
Held, That the contract imposed upon the contractors the obligation
to construct the dock according to the specifications within a desig-
nated time, for an agreed price, upon a site to be selected by the
United States, and contained no statement, or agreement or even
intimation that any warranty, express or implied, in favor of the
contractor was entered into by the United States concerning the
character of the underlying soil; and that the judgment of the court
below should be affirmed. Simpson v. United States, 372.
See CONSTITUTIONAL LAW, A, 1.
1. In order to hold a corporation liable for the torts of any of its agents,
the act in question must be performed in the course and within the
scope of the agent's employment in the business of the principal.
Washington Gaslight Co. v. Lansden, 534.
2. A corporation can, however, also be held responsible for acts of its
agent, not strictly within its corporate powers, which were assumed
to be performed for it by an agent competent to employ the corporate ·
powers actually exercised; but in such case, there must be evidence
of some facts from which the authority of the agent to act upon or
in relation to the subject-matter involved may be fairly and legiti
mately inferred by the court or jury, though this evidence need not
necessarily be in writing. Ib.
3. When the only conclusion to be drawn from such evidence is a want
of authority, the question is one for the court to decide without sub-
mitting it to the jury. Ib.
4. In this case the court should have directed a verdict for the corporation
on the ground that there was an entire lack of evidence on which to
base a verdict against it. Ib.
5. In a suit in a state court against a foreign corporation where no prop-
erty of the corporation is within the State, and the judgment sought
is a personal one, it is material to ascertain whether the corporation
is doing business within the State; and if so, the service of process
must be upon some agent in the State so far representing it that he
may properly be held in law its agent to receive such process in its
behalf. Connecticut Mut. Life Ins. Co. v. Spratley, 602.
6. A foreign insurance company which has been doing business within
a State through its agents does not cease to do business therein when
it withdraws its agent and ceases to obtain or ask for new risks or
obtain new policies, while, at the same time, its old policies continue
in force, and the premiums thereon are paid by the policyholders to
an agent residing in another State, who was once the agent in the
State where the policyholders reside. Ib.
7. On the facts stated in the opinion of the court, it is held that the law
implies, from the appointment and authority of the agent of the
plaintiff in error, the power to receive in Tennessee service of process
against the company. 1b.
8. If it appears that there is a law of the State in respect to the service
of process upon foreign corporations, and that the character of an
agency of a foreign corporation is such as to render it fair, reason-
able and just to imply an authority on the part of the agent to re-
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