CERTIORARI.

See JURISDICTION, A, 11.

CONSTITUTIONAL LAW.

1. A statute of a State, which enacts that every railroad corporation,
owning or operating a railroad in the State, shall be responsible in
damages to the owner of any property injured or destroyed by fire
communicated, directly or indirectly, by locomotive engines in use
upon its railroad; and which provides that it shall have an insurable
interest in the property upon the route of its railroad, and may pro-
cure insurance thereon in its own behalf; does not violate the Con-
stitution of the United States, as depriving the railroad company of
its property without due process of law, or as denying to it the equal
protection of the laws, or as impairing the obligation of the contract
made between the State and the company by its incorporation under
general laws imposing no such liability. St. Louis & San Francisco
Railway Co. v. Mathews, 1.

2. Where a suit is brought against defendants who claim to act as officers
of a State and under color of an unconstitutional statute commit acts
of wrong and injury to the property of the plaintiff, to recover money
or property in their hands unlawfully taken by them in behalf of the
State, or for compensation for damages, such suit is not an action
against the State within the meaning of the Eleventh Amendment to
the Constitution of the United States. Scott v. Donald, 58.
3. The statute of South Carolina of January 2, 1895, entitled "an act to
further declare the law in reference to, and further regulate the use,
sale, consumption, transportation and disposition of alcoholic liquids
or liquors within the State of South Carolina, and to police the same,"
recognizes liquors and wines as commodities which may be lawfully
made, bought and sold, and which must therefore be deemed to be
the subject of foreign and interstate commerce, and is an obstruction
to and interference with that commerce, and must, as to those of its
provisions which affect the plaintiffs, stand condemned. Ib.

4. That statute is not an inspection law, and is not within the scope of the
act of August 8, 1890, c. 728. Ib.

5. Whether those provisions of the act which direct that so-called contra-
band liquors may be seized without warrant by any state constable,
sheriff or policeman, while in transit or after arrival, whether in pos-
session of a common carrier, depot agent, express agent or private
person, and which subject common carriers to fine and imprisonment
for carrying liquors in any package, cask, jug, box or other package,
under any other than the proper name or brand known to the trade,
and which forbid the bringing of any suit for damages alleged to arise
by seizing and detention of liquors would be lawful in an inspection
law otherwise valid, is not decided. Ib.

6. So far as these actions are concerned, the damages recovered were for
acts committed under the alleged authority of the act of 1895, and
cannot be affected by the provisions of the subsequent act of 1896,
even if the invalidities of the former act were thereby remedied—a
matter on which no opinion is expressed.

Ib.

7. Where a suit is brought against defendants who claim to act as officers
of a State, and, under color of an unconstitutional statute, commit
acts of wrong and injury to the property of the plaintiff, to recover
money or property in their hands unlawfully taken by them in behalf
of the State; or for compensation for damages; or, in a proper case,
for an injunction to prevent such wrong and injury; or for a manda-
mus in a like case to enforce the performance of a plain legal duty,
purely ministerial; such suit is not, within the meaning of the Elev-
enth Amendment to the Constitution, an action against the State.
Scott v. Donald, 107.

8. Circuit Courts of the United States will restrain a state officer from
executing an unconstitutional statute of the State when to execute it
would be to violate rights and privileges of the complainant that had
been guaranteed by the Constitution and would do irreparable damage
and injury to him. Ib.

9. In re Tyler, 149 U. S. 164, affirmed and followed on these points. Ib.
10. The act of the legislature of Texas of April 5, 1889, which provides

that "any person in this State having a valid bona fide claim for per-
sonal services rendered or labor done, or for damages, or for over-
charges on freight, or claims for stock killed or injured by the train
of any railway company, provided that such claim for stock killed or
injured shall be presented to the agent of the company nearest to the
point where such stock was killed or injured, against any railway cor-
poration operating a railroad in this State, and the amount of such
claim does not exceed $50, may present the same, verified by his affi-
davit, for payment to such corporation by filing it with any station
agent of such corporation in any county where suit may be instituted
for the same, and if, at the expiration of thirty days after such pres-
entation, such claim has not been paid or satisfied, he may immedi-
ately institute suit thereon in the proper court; and if he shall finally
establish his claim, and obtain judgment for the full amount thereof,
as presented for payment to such corporation in such court, or any
court to which the suit may have been appealed, he shall be entitled
to recover the amount of such claim and all costs of suit, and in addi-
tion thereto all reasonable attorney's fees, provided he has an attorney
employed in his case, not to exceed $10, to be assessed and awarded by
the court or jury trying the issue," operates to deprive the railroad
companies of property without due process of law, and denies to them
the equal protection of the law, in that it singles them out of all
citizens and corporations, and requires them to pay in certain cases
attorney's fees to the parties successfully suing them, while it gives to

them no like or corresponding benefit. Gulf, Colorado & Santa Fé
Railway v. Ellis, 150.

11. The mere fact of classification is not sufficient to relieve a statute from
the reach of the equality clause of the Fourteenth Amendment, and
in all cases it must appear not merely that a classification has been
made, but also that it is based upon some reasonable ground
thing which bears a just and proper relation to the attempted clas-
sification, and is not a mere arbitrary selection. Tested by these
principles the statute in controversy cannot be sustained. Ib.

-some-

12. Section 2087 of the Compiled Laws of Utah, which provides that
"Any person who drives a herd of horses, mules, asses, cattle, sheep,
goats or swine over a public highway, where such highway is con-
structed on a hillside, shall be liable for all damage done by such
animals in destroying the banks or rolling rocks into or upon such
highway," is not in conflict with the Constitution of the United States.
Jones v. Brim, 180.

13. The decision of the Supreme Court of Ohio entertaining jurisdiction
of this case, and delivering a considered opinion, State v. Jones, 51
Ohio St. 492, adjudging the Nichols law to be valid under the con-
stitution of that State, will not be reviewed by this court. Adams
Express Co. v. Ohio State Auditor, 194.

lb.

14. Although the transportation of the subjects of interstate commerce, or
the receipts received therefrom, or the occupation or business of car-
rying it on, cannot be directly subjected to state taxation, yet property
belonging to corporations or companies engaged in such commerce
may be; and whatever the particular form of the exaction, if it is
essentially only property taxation, it will not be considered as falling
within the inhibition of the Constitution.
15. The property of corporations engaged in interstate commerce, situated
in the several States through which their lines or business extend,
may be valued as a unit for the purposes of taxation, taking into con-
sideration the uses to which it is put and all the elements making up
aggregate value; and a proportion of the whole fairly and properly
ascertained may be taxed by the particular State, without violating
any Federal restriction. Ib.

16. While there is an undoubted distinction between the property of railroad
and telegraph companies and that of express companies, there is the
same unity in the use of the entire property for the specific purposes,
and there are the same elements of value, arising from such use. Ib.
17. The classification of express companies with railroad and telegraph
companies, as subject to the unit rule, does not deny the equal pro-
tection of the laws; as that provision in the Fourteenth Amendment
was not intended to prevent a State from adjusting its system of
taxation in all proper and reasonable ways, and was not intended to
compel a State to adopt an iron rule of equal taxation. Ib.

18. The statute of the State of Ohio of April 27, 1893, 90 Laws Ohio, 330,

66

(amended May 10, 1894, 91 Laws Ohio, 220), created a board of ap-
praisers and assessors, and required each telegraph, telephone and
express company doing business within the State to make returns of
the number of shares of its capital, the par value and market value
thereof, its entire real and personal property, and where located and
the value thereof as assessed for taxation, its gross receipts for the
year of business wherever done and of the business done in the State
of Ohio, giving the receipts of each office in the State, and the whole
length of the line of rail and water routes over which it did business
within and without the State. It required the board of assessors to
'proceed to ascertain and assess the value of the property of said
express, telegraph and telephone companies in Ohio, and in determin-
ing the value of the property of said companies in this State, to be taxed
within the State and assessed as herein provided, said board shall be
guided by the value of said property as determined by the value of
the entire capital stock of said companies, and such other evidence
and rules as will enable said board to arrive at the true value in
money of the entire property of said companies within the State of
Ohio, in the proportion which the same bears to the entire property
of said companies, as determined by the value of the capital stock
thereof, and the other evidence and rules as aforesaid." Held, (1)
That, assuming that the proportion of capital employed in each of
the several States through which such a company conducts its opera-
tions has been fairly ascertained, while taxation thereon, or deter-
mined with reference thereto, may be said in some sense to fall on
the business of the company, it does so only indirectly; and that the
taxation is essentially a property tax, and, as such, not an inter-
ference with interstate commerce; (2) That the property so taxed
has its actual situs in the State and is, therefore, subject to its juris-
diction; and that the distribution among the several counties is a
matter of regulation by the state legislature; (3) That this was not
taking of property without due process of law, either by reason of its
assessment as within the jurisdiction of the taxing authorities, or of
its classification as subject to the unit rule; (4) That the valuation
by the assessors cannot be overthrown simply by showing that it was
otherwise than as determined by them. Ib.

19. Section 4598 of the Revised Statutes is not unconstitutional by reason
of its authorizing justices of the peace to issue warrants to apprehend
deserting seamen, and deliver them up to the master of their vessel.
Robertson v. Baldwin, 275.

20. The judicial power of the United States is defined by the Constitution,
and does not prevent Congress from authorizing state officers to take
affidavits, to arrest and commit for trial offenders against the laws of
the United States, to naturalize aliens, and to perform such other duties
as may be regarded as incidental to the judicial power, rather than a
part of it. Ib.

21. Sections 4598 and 4599, in so far as they require seamen to carry out the
contracts contained in their shipping articles, are not in conflict with
the Thirteenth Amendment forbidding slavery and involuntary servi-
tude; and it cannot be open to doubt that the provision against involun-
tary servitude was never intended to apply to such contracts. lb.
22. The contract of a sailor has always been treated as an exceptional
one, and involving to a certain extent the surrender of his personal
liberty during the life of the contract. Ib.

23. The provision in § 11 of the act of March 6, 1893, c. 171, of the legis
lature of Indiana, that on the failure or refusal of a telegraph com-
pany "to pay any tax assessed against it in any county or township in
the State, in addition to other remedies provided by law for the col-
lection of taxes, an action may be prosecuted in the name of the
State of Indiana by the prosecuting attorneys of the different judicial
circuits of the State .. 9
and the judgment in said action shall
include a penalty of fifty per cent of the amount of taxes so assessed
and unpaid," does not, as to the penalty clause, contravene the Con-
stitution of the United States; and the question whether, in this case,
that penalty was properly included in the judgment rendered against
the telegraph company was for the determination of the state courts.
Western Union Telegraph Co. v. Indiana, 304.

24. The provisions in §§ 4, 5 and 7 of the act of September 19, 1890, c. 907,
conferring upon the Secretary of War authority concerning bridges
over navigable water-ways, do not deprive the States of authority to
bridge such streams, but simply create an additional and cumulative
remedy to prevent such structures, although lawfully authorized, from
interfering with commerce. Lake Shore & Michigan Southern Railway
Co. v. Ohio, 365.

25. The act of August 2, 1886, c. 840, imposing a tax upon, and regu-
lating the manufacture, sale, etc., of oleomargarine, required packages
thereof to be marked and branded; prohibited the sale of packages
that were not, and prescribed the punishment of sales in violation of
its provisions. It authorized the Commissioner of Internal Revenue
to make regulations describing the marks, stamps and brands to be
used. Held, that such leaving the matter of designating the marks,
brands and stamps to the Commissioner, with the approval of the
Secretary, involved no unconstitutional delegation of power. In re
Kollock, 526.

26. The provision in act No. 66 of the Louisiana laws of 1894 that any
person, firm or corporation
who in any manner whatever
does an act in that State to effect, for himself or for another, insur-
ance on property then in that State, in any marine insurance company
which has not complied in all respects with the laws of the State,
shall be subject to a fine, etc., when applied to a contract of insurance
made in the State of New York, with an insurance company of that
State, where the premiums were paid, and where the losses were to be