Respondent Tateum is also a member of the House and Speaker thereof, and respondent Miller is clerk of that body. Senator Turnbull, on the 15th day of February, 1893, asked leave to present a protest against certain proceedings of the Senate, and to have the same spread upon the journal; but the president of the Senate, respondent Giddings, ruled that the protest offered was out of order, as reflecting on the honor of the Senate. The decision of the president was appealed from on the ground that the ruling was "contrary to the constitutional guaranty." Upon vote taken, the ruling of the president was sustained.

On February 9, 1893, during a session of the House of Representatives, the relator in the second case, Representative Barkworth, presented his protest against the passage of a certain resolution; but the speaker, respondent Tateum, declared the protest to be out of order, as reflecting on the House, and refused to receive the same or print it in the journal. Mr. Barkworth appealed from the decision of the speaker on the ground that the ruling was "contrary to the constitutional guaranty." Upon a vote had by yeas and nays, the decision of the speaker was sustained. On the 3d day of March following, Mr. Barkworth reoffered his protest, but the speaker repeated his ruling, and the same was not received; and thereupon Mr. Barkworth requested respondent Miller to receive said protest, and print the same as a part of the journal, but said Miller, "relying upon the decision of the said speaker of the House, refused and neglected to receive the protest."

Orders to show cause were issued, and respondents appear without answer, and move to dismiss the proceedings.

The motion to dismiss must be granted. Section 10, art. 4, of the constitution provides that

"Each house shall keep a journal of its proceedings, and publish the same, .except such parts as may require secrecy. The yeas and nays of the members of either house, on any question, shall be entered on the journal at the request of one fifth of the members elected. Any member of either house may dissent from and protest against any act, proceeding, or resolution which he may deem injurious to any person or the public, and have the reason of his dissent entered on the journal.”

It will be observed that the constitution imposes the duty of keeping the journal upon the house, and not upon president or speaker, secretary or clerk. In both cases an appeal to the house was taken, and each house adopted the ruling of its presiding officer, refusing to receive the protest, or to print it in the journal. It is true that the rules make it the duty of the secretary and clerk to keep the journal, but this is not a delegation of the control of the journal to either officer. The rules also provide for the reading of each day's journal, and the correction thereof. The corrections are made at the instance and direction of the body to which the journal

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is read. The duty imposed by the rules is the mere clerical duty of placing upon the journal such matter as each house may determine shall be placed thereon. The secretary and clerk are therefore the mere creatures of the respective bodies.

It is not sought by this proceeding to reach something which is in the possession of the agent, who defends his possession by setting up title in his principal, nor is it a proceeding to restrain an agent from doing an unlawful act under an order from his principal, and who sets up the immunity of his superior. It is not the existence in another of mere interest that is here pleaded. It is affirmative action that is sought to be enforced and it is want of power to comply with or give effect to an order, if made, that is pleaded. It is sought to compel persons, whose duties are purely clerical to perform duties which are imposed upon their superiors. We are asked to compel the secretary of the Senate and clerk of the House to insert in the journals matter which the Senate and House have not only refused to allow to be printed therein, but have refused to consider or receive.

The writ of mandamus neither creates nor confers authority upon the officer to whom it is directed. It merely directs the exercise of existing powers. It should be directed to those who are to execute it, or whose duty it is to do the thing required. It must also clearly appear that the person to whom it is directed has the absolute power to execute it; otherwise, it will not be issued. Mos. Mand. 199; High, Extr. Rem. § 32; Merrill, Mand. §§ 57, 58, 60, and cases cited.

The duty sought to be enforced is imposed by the constitution upon the Senate and House, and, those bodies having refused to receive or enter the protests, neither the president of the Senate nor the speaker of the House has the power, without the concurrence of the body over which he presides, to execute the order if made.

It is unnecessary to discuss the other questions raised.

Inasmuch as the proper parties are not before the Court, the proceedings must be dismissed, and the writs denied, but without costs.

CHAPTER IV.

THE LEGISLATIVE DEPARTMENT.

SECTION I.- TAXATION.

a. Subjects of Taxation.

STATE TAX ON FOREIGN HELD BONDS.

[RAILROAD Co. v. PENNSYLVANIA.]

15 Wallace, 300. 1872.

[THE State of Pennsylvania sought to collect from the Railroad Company, incorporated in the State, a tax on interest payable by the Railroad Company to bondholders who were not citizens or residents of the State. Judgment was rendered against the Company, and affirmed by the Supreme Court of the State, and the Company brought the case to this court for review.]

MR. JUSTICE FIELD, after stating the facts of the case, delivered the opinion of the court as follows:

The question presented in this case for our determination is whether the eleventh section of the act of Pennsylvania of May, 1868, so far as it applies to the interest on bonds of the railroad company, made and payable out of the State, issued to and held by non-residents of the State, citizens of other states, is a valid and constitutional exercise of the taxing power of the State, or whether it is an interference, under the name of a tax, with the obligation of the contracts between the non-resident bondholders and the corporation. If it be the former, this court cannot arrest the judgment of the State court; if it be the latter, the alleged tax is illegal, and its enforcement can be restrained.

The case before us is similar in its essential particulars to that of The Railroad Company v. Jackson, reported in 7 Wallace, 262. There, as here, the company was incorporated by the legislatures of two States, Pennsylvania and Maryland, under the same name, and its road extended in a continuous line from Baltimore in one State to Sunbury in the other. And the company had issued bonds for a large amount, drawing interest, and executed a mortgage for their

security upon its entire road, its franchises and fixtures, including the portion lying in both States. Coupons for the different instalments of interest were attached to each bond. There was no apportionment of the bonds to any part of the road lying in either State. The whole road was bound for each bond. The law of Pennsylvania, as it then existed, imposed a tax on money owing by solvent debtors of three mills on the dollar of the principal, payable out of the interest. An alien resident in Ireland was the holder of some of the bonds of the railroad company, and when he presented his coupons for the interest due thereon, the company claimed the right to deduct the tax imposed by the law of Pennsylvania, and also an alleged tax to the United States. The non-resident refused to accept the interest with these deductions, and brought suit for the whole amount in the Circuit Court of the United States for the District of Maryland. That court, the chief justice presiding, instructed the jury that if the plaintiff, when he purchased the bonds, was a British subject, resident in Ireland, and still resided there, he was entitled to recover the amount of the coupons without deduction. The verdict and judgment were in accordance with this instruction, and the case was brought here for review.

This court held that the tax under the law of Pennsylvania could not be sustained, as to permit its deduction from the coupons held by the plaintiff would be giving effect to the acts of her legislature upon property and effects lying beyond her jurisdiction. The reasoning by which the learned justice, who delivered the opinion of the court, reached this conclusion, may be open, perhaps, to some criticism. It is not perceived how the fact that the mortgage given for the security of the bonds in that case covered that portion of the road which extended into Maryland could affect the liability of the bonds to taxation. If the entire road upon which the mortgage was given had been in another State, and the bonds had been held by a resident of Pennsylvania, they would have been taxable under her laws in that State. It was the fact that the bonds were held by a, non-resident which justified the language used, that to permit a deduction of the tax from the interest would be giving effect to the laws of Pennsylvania upon property beyond her jurisdiction, and not the fact assigned. by the learned justice. The decision is, nevertheless, authority for the doctrine that property lying beyond the jurisdiction of the State is not a subject upon which her taxing power can be legitimately exercised. Indeed, it would seem that no adjudication should be necessary to establish so obvious a proposition.

The power of taxation, however vast in its character and searching in its extent, is necessarily limited to subjects within the jurisdiction of the State. These subjects are persons, property, and business. Whatever form taxation may assume, whether as duties, imposts, excises, or licenses, it must relate to one of these subjects. It is not possible to conceive of any other, though as applied to them, the

taxation may be exercised in a great variety of ways. It may touch property in every shape, in its natural condition, in its manufactured form, and in its various transmutations. And the amount of the taxation may be determined by the value of the property, or its use, or its capacity, or its productiveness. It may touch business in the almost infinite forms in which it is conducted, in professions, in commerce, in manufactures, and in transportation. Unless restrained by provisions of the Federal Constitution, the power of the State as to the mode, form, and extent of taxation is unlimited, where the subjects to which it applies are within her jurisdiction.

Corporations may be taxed, like natural persons, upon their property and business. But debts owing by corporations, like debts owing by individuals, are not property of the debtors in any sense; they are obligations of the debtors, and only possess value in the hands of the creditors. With them they are property, and in their hands they may be taxed. To call debts property of the debtors is simply to misuse terms. All the property there can be in the nature of things in debts of corporations, belongs to the creditors, to whom they are payable, and follows their domicile, wherever that may be. Their debts can have no locality separate from the parties to whom they are due. This principle might be stated in many different ways, and supported by citations from numerous adjudications, but no number of authorities, and no forms of expression could add anything to its obvious truth, which is recognized upon its simple statement.

The bonds issued by the railroad company in this case are undoubtedly property, but property in the hands of the holders, not property of the obligors. So far as they are held by non-residents of the State, they are property beyond the jurisdiction of the State. The law which requires the treasurer of the company to retain five per cent of the interest due to the non-resident bondholder is not, therefore, a legitimate exercise of the taxing power. It is a law which interferes between the company and the bondholder, and under the pretence of levying a tax commands the company to withhold a portion of the stipulated interest and pay it over to the State. It is a law which thus impairs the obligation of the contract between the parties. The obligation of a contract depends upon its terms and the means which the law in existence at the time affords for its enforcement. A law which alters the terms of a contract by imposing new conditions, or dispensing with those expressed, is a law which impairs its obligation, for, as stated on another occasion, such a law relieves the parties from the moral duty of performing the original stipulations of the contract, and it prevents their legal enforcement. The Act of Pennsylvania of May 1st, 1868, falls within this description. It directs the treasurer of every incorporated company to retain from the interest stipulated to its bondholders five per cent. upon every dollar and pay it into the treasury of the Commonwealth. It thus sanctions and commands a disregard of the express provisions