Although the decision of the case was put upon the ground that the exemption from taxation contained in the acts of 1872 and 1873 was a mere bounty and subject to repeal by the legislature, the report would seem to indicate the opinion of the court to have been that no exemption was valid which was contained in the charter of a particular | corporation (a question not necessarily in volved); but whether this be so or not, it is entirely clear that the court intended to decide that, under the Constitution of 1869, any exemption granted by the legislature was a mere bounty and subject to repeal.

tion were granted in the form of a contract | sequent statute, is one which turns upon in the charter, it was prohibited. the construction of a state law, and is not reviewable here, although if the exemption were irrepealable, and thus constituted a contract, it would be our duty to decide for ourselves whether the subsequent act had repealed it or impaired its obligation. The only contract relied upon is one exempting the property of a particular corporation from taxation for a certain number of years; a contract which, in the light of the state Constitution and the prior decisions of the state courts, must be read as if it contained a proviso that the legislature might in the meantime alter, amend, or repeal the act. Hence, as the legislature is left entirely free Under this construction of the Constitu- to act upon the subject,*no subsequent legis-[75] tion it becomes unnecessary to decide wheth-lation could possibly impair the obligation er the exemption contained in the charter of of the contract, if such exemption can be 1882 be void or not, since, as it appears by called a contract at all. If no statute could the certificate of the chief justice, the deci-impair it, it goes without saying that none sion of the court below was put upon the did impair it. If, then, the decision of the ground that the subsequent legislation, and supreme court, that the legislature had in particularly the Annotated Code of 1892, fact repealed the exemption, was right, the which was construed by the court as repeal- railroad company cannot complain, since the ing the exemption in the charter, was con- legislature had done no more than it had a stitutional and valid. Indeed, counsel for right to do. If, upon the other hand, we the collector, in their brief, expressly dis- should be of opinion that the supreme court claim any reliance upon the position that was wrong in holding the exemption rethe exemption in this case was originally pealed, such exemption would be abrogated, unconstitutional and void, putting their case not by the act of 1892, but by an erroneous expressly upon the ruling of the supreme construction of that act. Our only authoricourt that such exemption had been re- ty to review the action of the state courts in pealed. this class of cases under Rev. Stat. § 709, arises when the validity of a state statute is drawn in question on the ground of its being repugnant to the Constitution of the United States, and the decision is in favor of its validity. Now, if the statute adjudged to be valid does not impair the obligation of any contract, it is not repugnant to the Constitution. It is the fact that the act, as construed by the supreme court, impairs the obligation of a contract that gives us jurisdiction, and if there be in the act of 1882 no

[74] *Holding, then, as we do, that the exemption was subject to repeal, it only remains to consider whether the Code of 1892 did in fact repeal and abrogate it. In this connection the state relies upon § 3744 of the Annotated Code of 1892, which declares that "following property, and no other, shall be exempt from taxation, to wit." Here follows a list of some twenty classes of property, among which, however, railroads are not included. If an exemption under a special act be repealed by the words "and no oth-contract that can be impaired by subsequent er." contained in a general act declaring legislation, it is of no consequence that the what property shall be exempt from taxa- supreme court may have given it a wrong tion, it would follow that this exemption construction. "Before we can be asked to was repealed by the Code of 1892, and the determine whether a statute has impaired principle applied in Louisville Water Co. v. the obligation of a contract, it should apClark, 143 U. S. 1, 11, 36 L. ed. 55, 57, 12 pear that there was a legal contract subject Sup. Ct. Rep. 346, would also be applicable to impairment, and some ground to believe here. The railroad company, however, in- that it has been impaired." New Orleans v. sists that its rights are saved by § 8 of the New Orleans Waterworks Co. 142 U. S. 79, same Code, which declares that "private and 88, 35 L. ed. 943, 946, 12 Sup. Ct. Rep. 142. local laws not revised and brought into this Indeed the whole foundation of our jurisAnnotated Code are not affected by its adop-diction in this class of cases must rest upon tion, unless it be expressly so provided herein." There being no such express provision in the Code respecting the act of 1882, it is insisted that the exemption contained in that act is saved. The supreme court, how-essary operation, it gives effect to some proever, seems to have held, as it had already done with respect to a similar section in the Code of 1880 (Adams v. Yazoo & M. Valley R. Co. 77 Miss. 317, 28 So. 956), that the exemption was not saved.

We do not find it necessary to pass upon the soundness of this conclusion, as we are of opinion that the question whether the ruling of the supreme court, that a repealable exemption has been in fact repealed by a sub

a contract which cannot be legally impaired.
This court has repeatedly held that we
cannot revise the judgment of the highest
court of a state unless, by its terms or nec-

vision of a state Constitution or law which.
as thus construed, impairs the obligation of
a precedent contract. In Mississippi & M.
R. Co. v. Rock, 4 Wall. 177, 181, 18 L. ed.
381, 382, this court pronounced it a "funda-
mental error that this court can, as an ap-
pellate tribunal, reverse the decision of a
state court, because that court may hold a
contract to be void which this court might[76]
hold to be valid." So, too, in Knox v. Ex-

change Bank, 12 Wall. 379, 383, 20 L. ed. | tion in the charter of the Wilmington & 414, 415, it was said by Mr. Justice Miller: Raleigh Railway Company, of "the proper"But we are not authorized by the judiciary ty of said company and the shares therein," act to review the judgments of the state from taxation, was decided to extend to a courts because their judgments refuse to give tax upon the franchise and rolling stock. effect to valid contracts, or because those In delivering the opinion of this court, Mr. judgments, in their effect, impair the obli- Justice Davis observed: "It is insisted, gation of contracts. If we did, every case however, that the tax on the franchise is decided in a state court could be brought something entirely distinct from the prophere, when the party setting up a contract erty of the corporation, and that the legisalleged that the court had taken a different lature, therefore, was not inhibited from view of its obligation to that which we held." taxing it. This position is equally unsound To the same effect are Lehigh Water Co. v. with the others taken in this case. Nothing Easton, 121 U. S. 388, 392, 30 L. ed. 1059, is better settled than that the franchise of a 7 Sup. Ct. Rep. 916, and New Orleans Water- private corporation-which in its applicaworks Co. v. Louisiana Sugar Ref. Co. 125 tion to a railroad is the privilege of running U. S. 18, 30, 31 L. ed. 607, 612, 8 Sup. Ct. it and taking fare and freight-is property, Rep. 741. In the latter case it is said by and of the most valuable kind, as it cannot Mr. Justice Gray: "In order to come with- be taken for public use even without comin the provision of the Constitution of the pensation. It is true it is not the same sort United States which declares that no state of property as the rolling stock, roadbed, shall pass any law impairing the obligation and depot grounds, but it is equally with of contracts, not only must the obligation of them covered by the general term 'the propa contract have been impaired, but it must erty of the company,' and therefore equally have been impaired by a law of the state. within the protection of the charter." The prohibition is aimed at the legislative the same effect are Adams Exp. Co. v. Ohio power of the state, and not at the decisions State Auditor, 165 U. S. 195, 41 L. ed. 683, of its courts, or the acts of administrative 17 Sup. Ct. Rep. 305, and Veazie Bank v. or executive boards or officers, or the doings Fenno, 8 Wall. 533, 547, 19 L. ed. 482, 487. of corporations or individuals." See also Central Land Co. v. Laidley, 159 U. S. 103, 109, 40 L. ed. 91, 93, 16 Sup. Ct. Rep. 80. We are therefore of opinion that we cannot review the action of the state court in holding this exemption to have been repealed.

4. A single point with regard to the privi lege taxes included in the assessment sought to be enjoined remains to be considered.

To

This also appears to be the law in Mississippi. Coulson v. Harris, 43 Miss. 728; Drysdale v. Pradat, 45 Miss. 445.

In West River Bridge Co. v. Dix, 6 How. 507, 534, 12 L. ed. 535, 546, the franchise of a bridge company was held to be property eminent domain. See also Monongahela subject to condemnation under the law of Nav. Co. v. United States, 148 U. S. 312, 37 By § 18 of the company's charter of 1882 L. ed. 463, 13 Sup. Ct. Rep. 622; Spring it was declared "that such company, its Valley Waterworks v. Schottler, 62 Cal.[78] stock, its railroad and appurtenances, and 110: Nichols v. New Haven & N. Co. 42 Conn. 103, 125; Porter v. Rockford, R. I. é all its property in this state necessary or St. L. R. Co. 76 Ill. 561, 574; State ex rel. incident to the full exercise of all the pow-Milwaukee Street R. Co. v. Anderson, 90 ers herein granted, shall be exempt from taxation for a term of twenty years from Wis. 561, 63 N. W. 746; Richmond & D. R. Co. N. C. Div. v. Brogden, 74 N. C. 707. the passage of this act." This undoubtedly implies an exemption from privilege as well as ad valorem taxes, and such has been the construction given to it by the supreme court of Mississippi. Grand Gulf & P. G. R. Co. v. Buck, 53 Miss. 246.

But, as we have already held, this section must be construed as subservient to § 13, ar[77]ticle 12 of the Constitution of *1869, providing that "the property of all corporations for pecuniary profit shall be subject to taxation." Now, if privilege taxes are taxes upon the property of corporations, an exemption from such taxes was subject to repeal as much as we have already held an exemption of ad valorem taxes to be.

Whatever may have been the fluctuations of opinion upon this subject,-and it is not to be denied that there are many cases in the state courts holding that a privilege tax is not a tax upon property, the law in this court, so far as concerns railway franchises, must be deemed to have been settled by the case of Wilmington & W. R. Co. v. Reid, 13 Wall. 264, 20 L. ed. 568, in which an exemp

It follows, then, that privilege taxes, being taxes upon property, are subject to the constitutional limitations of 1869, and their

exemption was equally repealable as that of

ad valorem taxes.

The railroad company also calls attention to § 181 of the Constitution of 1890, by virtue of which "exemptions from taxation to which corporations are legally entitled at the adoption of this Constitution shall remain in full force and effect for the time of such exemptions as expressed in their respective charters, or by general laws, unless sooner repealed by the legislature." The words "sooner repealed" in this section apparently refer to a repeal before the expiration of the exemption under their respective charters, and as the supreme court has. held that the exemption in this case was repealed by the Annotated Code of 1892 the company can gain no additional advantage by this section. Adams v. Tombigbee Mills, 78 Miss. 676, 29 So. 470.

Inasmuch as the statute in question could not, and in the opinion of supreme court did

not, impair the obligation of any prior contract, its judgment must be affirmed.

Mr. Justice Gray was not present at the argument, and took no part in the decision of this case.

poration and its officers and the attorney gen-
eral to restrain the enforcement of a statute,
merely because the officers of the corporation
agree with the stockholders as to the uncon-
stitutionality of the statute.
[No. 1.]

[79] *CARLES U. COTTING and Francis Lee Argued November 14, 15, 1899. Ordered for

Higginson, Appts.,

1.

2.

equal protection of statute limiting charges of stockcollusive action.

laws
yards company

A

reargument March 26, 1900. Reargued January 23, 24, 1901. Decided November 25, 1901.

PPEAL from a decree of the Circuit Court of the United States for the District of Kansas dismissing a complaint in a suit to restrain the enforcement of a statute. Reversed.

Sce same case below, 82 Fed. S50.

Statement by Mr. Justice Brewer: *In March, 1897, Charles U. Cotting, a citi-[79] A stock-yards company is denied the equa! protection of the laws by Kan. act March 3, zen of the state of Massachusetts, filed in 1897, which limits the amount of the charges the circuit court of the United States for to be made by that corporation, without lim- the district of Kansas a bill of complaint iting the charges to be made by other similar against the Kansas City Stock-Yards Comcorporations doing a smailer amount of busi-pany, a corporation of the state of Kansas, ness, and without any reference to the char- and certain officers of that company, and acter or value of the services rendered, alLouis C. Boyle, attorney general of the state of Kansas. A few days later Francis Lee Higginson, a citizen of the state of Massachusetts. filed a bill of complaint in the same court and against the same parties.

though the statute is general in its terms and
is made applicable to any corporation doing
business of a certain amount, and notwith-
standing the fact that by virtue of the great
amount of business done by the corporation
affected by the statute it may make a rea-
sonable income, since the statute makes a
positive and direct discrimination between
persons engaged in the same class of business,
and bases it simply upon the quantity of busi-
ness which each may do.

A suit will not be dismissed as collusive when brought by stockholders against the corThis case appears in the Official Report under the title of Cotting v. Kansas City Stock Yards Company and the State of Kansas.

NOTE. On the legislative power to fir tolls, rates, or prices-see note to Winchester & L. Turnp. Road Co. v. Croxton (Ky.) 33 L. R. A. 177.

As to constitutionality of statutes restricting contracts and business-see note to State v. Loomis (Mo.) 21 L. R. A. 789.

On the constitutional equality of privileges, immunities, and protection-see note to Louisville Safety Vault & T. Co. v. Louisville & N. R. Co. (Ky.) 14 L. R. A. 579.

As to injunction against criminal proceedings -see Crighto v. Dahmer (Miss.) 21 L. R. A. 84, and note.

As to what constitutes due process of law see Kuntz v. Sumption (Ind.) 2 L. R. A. 655, and note; Re Gannon (R. I.) 5 L. R. A. 359, and note; Ulman v. Baltimore (Md.) 11 L. R. A. 224, and note; Gilman v. Tucker (N. Y.) 13 L. R. A. 304, and note. And see notes to People v. O'Brien (N. Y.) 2 L. R. A. 258; Pearson v. Yewdall, 24 L. ed. U. S. 436; Wilson v. North Carolina ex rel. Caldwell, 42 L. ed. U. S. 865.

On Federal jurisdiction of suits against a state--see notes to Tindall v. Wesley, 13 C. C. A. 165, and Hans v. Louisiana, 33 L. ed. U. S. 842.

Unconstitutional inequality or discrimination in state regulation of tolls or rates.

These suits were subsequently ordered by the court to be consolidated, and were thereafter proceeded in as one.

The plaintiffs respectively alleged that they were stockholders of the Kansas City Stock-Yards Company, and that the suits were brought in their own behalf and that the purpose of fixing their rates was sustained in Chicago, B. & Q. R. Co. v. Iowa, 94 U. S. 155, sub nom. Chicago, B. & Q. R. Co. v. Cutts, 24 L. ed. 94, against the claim that it denied equal privileges or immunities to some of the railroad companies.

Power of the legislature to classify railroads in the regulation of fares and freights according to the length of their lines is also sustained in Dow v. Beidelman, 125 U. S. 680, 31 L. ed. 841, 2 Inters. Com. Rep. 56, 8 Sup. Ct. Rep. 1028. And it is held that there is no violation of the equal protection of the laws if the same rule is applied to all railroads of the same

class.

To divide railroads into two classes according to the length of time they have been organized is not beyond the power of the legislature in prescribing rates. Ames v. Union P. R. Co. 4 Inters. Com. Rep. 835, 64 Fed. 165.

If the classification of railroads for the regulation of rates operates uniformly, the court cannot decide whether it is the best that could have been done or not. The court can decide only the question whether it tould be done at all and under any circumstances. If it could. the legislature must decide for itself whether the common good requires that it should be done. Dow v. Beidelman, 125 U. S. 680, 31 L. ed. 841, 2 Inters. Com. Rep. 56, 8 Sup. Ct. Rep. 1028; Chicago, B. & Q. R. Co. v. Iowa, 94 U. S. 163, sub nom. Chicago, B. & Q. R. Co. v. Cutts, 24 L. ed. 95.

But the fact that a statute gives a railroad commission, in addition to the authority to reA legislative classification of railroads for vise tariffs, the power, for undisclod reasons

of other stockholders having a like interest, | Thayer there was the following order, which who might thereafter join in the prosecu- was also embodied in the final decree: tion thereof. The main purpose of the suits was to have declared invalid a certain act of the legislature of the state of Kansas approved March 3, 1897, entitled "An Act Defining What shall Constitute Public Stock [80] Yards, Defining the Duties of the Person or Persons Operating the Same, and Regulating All Charges thereof, and Removing Restrictions in the Trade of Dead Animals, and Providing Penalties for Violations of This Act."

A temporary restraining order was granted, and subsequently a motion for a preliminary injunction was made. Pending that motion the court appointed a special master, with power to take testimony and report the same, with his findings, as to all matters and things in issue upon the hearing of the preliminary injunction prayed for. 79 Fed. 679. On August 24, 1897, the special master filed his report. On October 4, 1897, the motion for a preliminary injunction was heard on affidavits, the master's report, exceptions thereto on behalf of both parties, and arguments of counsel. The motion was refused and the restraining order, which had remained in

force in the meantime, was set aside. 82 Fed. 839.

A stipulation was thereupon entered into that the defendants should forthwith file their answers to the bills; that replications thereto should be immediately filed; and that the cases thus put at issue should be heard on final hearing, upon the pleadings, proofs, master's report, and exhibits, without further testimony from either party.

On October 28, 1897, after argument, the court dismissed the bills of complaint. 82 Fed. 850. In the opinion of Circuit Judge and without accountability to anyone, to give better rates to one corporation than to another, is held to make the statute unconstitutional. Louisville & N. R. Co. v. Railroad Commission, 19 Fed. 679.

"The great importance of the questions involved in these cases will doubtless occasion an appeal to the Supreme Court of the United States, where they will be finally settled and determined. If, on such appeal, the Kansas statute complained of should be adjudged invalid for any reason, and in the meantime the statutory schedule of rates should be enforced, the stock-yards company would sustain a great and irreparable loss. Under such circumstances, as was said in substance by the Supreme Court in Hovey v. McDonald, 109 U. S. 161, 27 L. ed. 891, 3 Sup. Ct. Rep. 136, it is the right and duty of the trial court to maintain, if possible, the status quo pending an appeal, if the questions at issue are involved in doubt, and equity rule 93 was enacted in recognition of that right. The court is of opinion that the cases at bar are of such moment and the [81] questions at issue so balanced with doubt as to justify and require an exercise of the power in question. Therefore, although the bills will be dismissed, yet an order will at the same time be entered restoring and continuing in force the injunction which was heretofore granted for the term of ten days, and if in the meantime an appeal shall be taken such injunction will be continued in force until the appeal is heard and determined in the Supreme Court of the United States; provided that, in addition to the ordinary appeal bond, the Kansas City StockYards Company shall make and file in this court its bond in the penal sum of $200,000, payable to the clerk of this court and his successors in office, for the benefit of whom it may concern, conditioned that in the event the decree dismissing the bills is affirmed it will, on demand, pay to the party or parties entitled thereto all overcharges merely inflicting a single penalty for a single offense, but placing the guilty railroad at the disadvantage of having a lower rate than its rivals. and depriving it of the equal protection of the laws. It cannot be just, it cannot be an equality of right or of protection, for an act to be unlawful if done by one railroad in Kentucky, and perfectly lawful if done by another railroad in the same state."

So, the fact that a statute regulating railroad rates burdens railroad corporations with pains and penalties not imposed on other persons operating railroads in competition with the corporations is held to make an unconstitutional discrimination against the corporations. Louisville & N. R. Co. v. Railroad Commission, 19 Fed. 679.

A somewhat similar objection to the Kentucky act of March 10, 1900, to prevent railroad companies from charging extortionate rates, was relied upon in Louisville & N. R. Co. v. McChord, 103 Fed. 216 (Reversed on other grounds in McChord v. Cincinnati, N. O. & T. P. K. Co. 183 U. S. 483, post, -), as a reason for enjoining, pendente lite, its threatened enforcement. This act, inter alia, provided that when complaint should be made to the railroad commission that a railroad had charged extortionate rates, or the commission had reason to believe such rates were being charged, it should hear and Elevator owners are not deprived of the determine the matter, and if it found that the equal protection of the laws by a statute regucompany had been guilty of extortion it should lating elevator charges in places having a popufix a just and reasonable rate, which the com-lation of 130.000 or more. Budd v. New York, pany should not exceed under a heavy penalty. The court said: "If one railroad should be convicted by the commission of having been 'guilty of extortion,' and if a lower rate should consequently be fixed by it, such rate is prescribed for the guilty railroad alone, and for none of the others. The effect of the determination that the railroad has been guilty of extortion is individual. This being so, the others are still at liberty to charge, as proper, a rate which, if charged by the one thus convicted, would be deemed extortion; thus not

143 U. S. 517. 36 L.. ed. 247, 4 Inters. Com. Rep. 45, 12 Sup. Ct. Rep. 468.

A turnpike company is not deprived of the equal protection of the laws by a statute fixing the rates which it may charge much lower than those Imposed upon other turnpike companies differently located, as it can only demand the right to receive such compensation as will be just both to itself and to the public under all the circumstances of the case. Covington & L. Turnp. Road Co. v. Sandford, 164 U. S. 578, 41 L. ed. 560, 17 Sup. Ct. Rep. 198.

"Sec. 4. It shall be unlawful for the owners, proprietors, or the employees of the owners or proprietors of any such public stock-yards within this state to charge for driving, yarding, watering, and weighing 150, 41 L. ed. 666, 17 Sup. Ct. Rep. 255. of stock greater prices than the following:sions forbidding unlawful discriminations by The evasion of the constitutional proviFor driving, yarding, watering, and weighing of cattle, 15 cents per head; calves, 8 cents per head; hogs, 6 cents per head; sheep, 4 cents per head; and there shall be but one yardage charged.

"Sec. 5. It shall be unlawful for the owner, owners, or proprietors, or their employees, of any such stock yards within this state, to sell and deliver at the rate of less than 2.000 pounds for a ton of hay, or any part thereof, the same to be of good quality, or to charge for or to sell the same at more than 100 per cent above the average market price or value of such hay upon the markets of the towns or cities wherein such stock yards are located, upon the day preceding Topeka v. Gillett, 32 Kan. 431, 4 Pac. 800; such sale and delivery; and it shall also be see also State ex rel. Helfer v. Simon, 53 N. unlawful for any such owners or proprie-J. L. 550, 22 Atl. 120; State ex rel. Richards tors or employees to sell and deliver less'v. Hammer, 42 N. J. L. 435; State ex rel.