ing the name of the Chicago & Michigan Lake | present case, although it is a case of bonds isShore Railroad Company. The point was sued by a county court in the State of Missouri taken, in this court, that the bonds were void on behalf of a township of the county. In the because they were delivered to a company to articles of association of the St. Louis, Chilliwhich they were not voted. This court said: cothe & Omaha Railroad Company it was de"The only remaining objection to the judg-clared that the object of the association was to ment is that the bonds were delivered to the construct, maintain and operate a railroad for consolidated company, when they were not public use from Chillicothe to such point on voted to that company. We concur with the the boundary line between Missouri and Iowa court below in holding that the aid voted must as should be deemed, after actual survey, to be be deemed to have been given in view of the on the most direct and feasible route for conthen existing statute, authorizing two or more structing, maintaining and operating a railroad railroad companies forming a continuous or between Chillicothe and Omaha, in Nebraska; connected line to consolidate and form one cor- and, by the same articles, it was provided that poration, and investing the consolidated com- the association was organized under and subpany with the powers, rights, property and ject to the laws of the State of Missouri, confranchises of the constituent companies. Nu- tained in chapters 62 and 63 of title XXIV of gent v. Putnam Co. Supervisors, 86 U. S. 19 the General Statutes of Missouri of 1865, posWall. 241 [22: 83]; Scotland Co. v. Thomas, sessing all and singular the powers therein conand East Lincoln v. Davenport, 94 U. S. 682, tained. The St. Louis, Council Bluffs & 801 (24:219, 322]; Wilson v. Salamanca, 99 U. Omaha Railroad Company, in Iowa, was S. 504 [25: 331]; Empire v. Darlington, 101 U. formed in September, 1870, to construct a railS. 87 [25: 878]; Menasha v. Hazard, 102 U. S. road from Council Bluffs, in Iowa, to the state 81 [26: 83]; Harter v. Kernochan, and Tipton | line between Iowa and Missouri, at a point Co. v. Rogers Locomotive & M. Works, 103 U. where the Chillicothe & Omaha Railroad S. 562, 523 [26: 411, 340]. The bonds were, should reach such state line, and, in the event therefore, rightfully delivered to the new or of the consolidation of the Iowa corporation consolidated corporation." This court affirmed with the Chillicothe & Omaha Railroad Comthe judgment against the township. pany (which was the new and changed name of the St. Louis, Chillicothe & Omaha Railroad Company), then, in connection with that company, "to form a continuous line of railroad from the City of Omaha, in the State of Nebraska, and the City of Council Bluffs, in the State of Iowa, to the City of St. Louis, in the State of Missouri." The consolidation thus contemplated took place. The new company was called the St. Louis, Council Bluffs & Omaha Railroad Company, and the bonds were issued to it. They were issued as negotiable securities, to pay for the subscription voted to the stock of the Missouri corporation. The vote was that they should be issued in accord

The new trial which was directed by this court in County of Bates v. Winters, 97 U. S. 83 [24: 933], took place and resulted in another judgment against Bates County, which was brought before this court in Bates County v. Winters, 112 U. S. 325 [28: 744], at October Term, 1884, The bonds were issued by the county court on behalf of the township. This court held that, at the second trial, an acceptance by the Lexington, Chillicothe & Gulf Railroad Company, of the subscription to its stock, had been shown, which made the subscription complete and binding as a subscription to the stock prior to the consolidation, the judgment in County of Bates v. Winters, 97 U. S. 83 [24; 933], having been re-ance with the law regulating subscriptions by versed because it did not appear that the county court had actually subscribed to the capital stock of the Lexington, Chillicothe & Gulf Railroad Company before the consolidation. This court held in the case in 112 U. S. 325 [28: 744], that the valid subscription made prior to the consolidation rendered unnecessary a subscription to the stock of the consolidated company, which latter subscription it had held, in Harshman v. Bates County, 92 U. S. 569 [23: 747], and County of Bates v. Winters, 97 U. S. 83 [24: 933], to have been invalid. In the case in 112 U. S. 330 [28: 746], this court went on to say: "As the Lexington, Chillicothe & Gulf Company was organized under the general Railroad Law of Missouri, which authorized consolidations, the subsequent consolidation of that company with another organized under the same law did not avoid the subscription which was made to its stock on the 17th of June, and the bonds in payment of the subscription were properly delivered to the consolidated company. That has been many times decided. New Buffalo v. Iron Co. 105 U. S. 76 [26: 1025], and the cases there cited." This court held the bonds to be valid.

We do not think that the rigid rule laid down in the case of Harshman v. Bates County, 92 U. S. 569 [23: 747], ought to be applied to the

municipal townships to railroad companies, in payment of a subscription to be made on behalf of the Township of Chillicothe to the stock of the Missouri company. The object of the consolidation was stated in the articles of consolidation to be to consolidate the two companies into one "for the purpose of constructing, owning, maintaining, using and operating a continuous line of railroad from the City of Omaha, in Nebraska, and the City of Council Bluffs, in Iowa, to the City of Chillicothe, in Missouri, under the name of the St. Louis, Council Bluffs & Omaha Railroad Company." The vote of the people to subscribe to the stock, followed by the issue of the bonds, was an adoption of the articles of association of the Missouri company, not only with the powers and purposes expressed in those articles, and conferred by then existing statutes, but with all powers which had, prior to the vote, been conferred upon it by statute. The intention and purpose of the voters of the township in voting, and of the county court of the county in issuing the bonds, were fully carried out in what was done. The vote of the people contemplated and authorized the very thing that was done. The bonds were voted for the express purpose of constructing a road from Chillicothe to the boundary line between Missouri and Iowa,

with a view to continuing the road from such that not less than two thirds of the qualified boundary line to Omaha, in Nebraska. This voters voting at the election were in favor of the object was attained by means of the consolida- subscription to the stock of the railroad comtion. The road was constructed by the consol-pany, it should be the duty of the county court idated company from Chillicothe to the bound- to make the subscription in behalf of the townary line between Missouri and Iowa, through ship, according to the terms and conditions the counties of Missouri named in the articles thereof, and that if those conditions provided of association of the Missouri company, and for the issuing of bonds in payment of such was continued thence to Omaha, in Nebraska, subscription, the county court should issue such and has ever since been operated upon that bonds in the name of the county and deliver line. The object expressed in the articles of them to the railroad company. This imposed association of the Missouri company, of having a plain duty in the present case upon the county a continuous road from Chillicothe to Omaha, court, because the statute and the vote, taken was not only effectually accomplished by the together, authorized the subscription and the consolidation, but could not have been accom- issue of the bonds, and no formal order by the plished without it. The Missouri corporation county court to do those acts was necessary. could not have built the road in Iowa, from The acts were ministerial. The statute left no the state line to Council Bluffs, and a railroad discretion in the county court, but made it the extending only from Chillicothe to the state line duty of the court to make the subscription and would not have answered the purpose con- issue the bonds. The sole duty of the court templated. To say, therefore, that there has was to ascertain that the proper vote had been been any substantial diversion in the use of the had. The bonds state on their face that they bonds from the purpose contemplated by the are "issued under and pursuant to an order of vote of the people of the township, because of the County Court of Livingston County, authe consolidation and of the issuing of the thorized by a two thirds vote of the people of bonds to the consolidated company, which has Chillicothe municipal Township," and each made the very road intended, because the au- bond also states that the county has executed it thority conferred by the vote was nominally by the Presiding Justice of the County Court one only to issue the bonds to the Missouri cor- of the County, under an order of the court, poration, is not a sound proposition, in view signing his name to the bond, and by the clerk of the fact that the statute of Missouri express- of the court, under the order thereof, attesting ly authorized the consolidation which took the same and affixing thereto the seal of the place. Under the facts of the case, the pro- court, and it is so signed and attested and the vision for consolidation became a part of the seal is affixed. contract between the township and the railroad Moreover, the finding of the circuit court is company, and the vote to issue the bonds to that the records of the county court show that the company was an assent to the exercise by that court made an order, on the 21st of Febit of all the corporate powers, including that of ruary, 1877, stating that, under and by virtue of consolidation; with which it was invested at the statute of the State, approved March 23, the time of the vote. So true is this that if the 1868, the County of Livingston, for the use and Missouri company had never been consolidated in behalf of the municipal Township of Chilliwith the Iowa company, and the road had on-cothe, had issued and delivered the bonds in ly been built to the state line, and no extension of it through Iowa to Council Bluffs and Omaha had been made, it might well have been urged that the citizens of the township had been defrauded, and that the purpose in issuing the bonds had not been carried out.

question to the St. Louis, Council Bluffs & Omaha Railroad Company. It is also found as a fact by the circuit court that the County of Livingston had made eleven semi-annual payments of interest on the bonds, from the proceeds of taxes levied in each year on the taxable property of the township.

The county court having been designated by the statute as the proper authority to determine that the conditions existed which authorized the making of the subscription, to be followed by the issuing of the bonds, the fact of the issue of the bonds by the county court, under its seal, with the recitals contained in the bonds, and the other facts above stated, estop the County from urging, as against a bona fide holder of the

We think that, in the present case, the rule applied in the cases before cited, of County of Scotland v. Thomas, 94 U. S. 682 [24:219]; East Lincoln v. Davenport, 94 U. S. 801 [24:322]; Wilson v. Salamanca, 99 U. S. 499 [25:330]; Menasha v. Hazard, 102 U. S. 81 [26:83]; Har ter v. Kernochan, 103 U. S. 562 [26:411]; New Buffalo v. Iron Company, 105 U. S. 73 [26: 1024]; and Bates County v. Winters, 112 U. S. 325 [28:744], is the more proper and salutary one, and that the doctrine laid down in Harsh-bonds and coupons, the existence of any mere man v. Bates County, 92 U. S. 569 [23:747], and in Bates County v. Winters, 97 U. S. 83 [24:933], that a county court in Missouri could not, on a vote by a township to issue bonds to a corporation named, issue the bonds to a company formed by the consolidation of that corporation with another corporation, would not be, if applied here, a sound doctrine.

(3) As to the objection that it does not appear by the finding of the circuit court that there was any formal order made by the county court for the issue of the bonds. By section 51 of the statute before cited, it was provided that if it should appear from the returns of the election

irregularity in the making of the subscription or the issuing of the bonds. On the foregoing facts, it must be presumed that the subscription to the stock was made by the county court in behalf of the township, and the County is estopped from asserting the contrary.

We are referred by the counsel for the plaintiff in error to the cases of State v. Garroutte, 67 Mo. 445; and Weil v. Greene County, 69 Mo. 281, as holding to the contrary of the views we have here announced. Independently of the fact that these decisions were made in 1878, many years after the bonds in the present case were issued, no such facts existed in those cases

Messrs. J. S. Hogg, Atty-Gen. of Texas, and W. L. Davidson, Asst. Atty-Gen., for defendant in error:

A tax on property that may be the subject
of commerce is not a tax on commerce.
Com. v. Holbrook, 10 Allen, 202; Cooley,
Tax. 62.

as exist in the present case. In the case in 6717 Cent. Rep. 357; Simmons Hardware Co. v. Missouri, the bonds were issued to the Hannibal McGuire, 2 South. Rep. 592; Ex parte Rosen& St. Joseph Railroad Company, to aid in build- blatt, 24 Rep. 570; Ficklen v. Shelby Co. 3 Ry. ing the Kansas City & Memphis Railroad, al- & Corp. L. J. 579; Ex parte Stockton, 33 Fed. leged to be a branch of the former road. The Rep. 95; Fargo v. Mich. 121 U. S. 230 (30: 888); main line had never been built. The court said Phila. & South. S. S. Co. v. Pa. 122 Ù. S. 326 that a branch road necessarily presupposed a (30: 1200); Leloup v. Port of Mobile, 127 U. S. main trunk line; and that the Kansas City & 640 (32: 311). Memphis Railroad was, for all practical purposes really a distinct and independent branch of the Hannibal & St. Joseph Railroad, the union existing merely in name but not in substance, and the branch road having separate stock and stockholders, president, directors and liabilities from the main road, so as to require, under the Constitution of Missouri of 1865, a vote of the people in favor of the issue of the bonds. There was no vote of the people in that case. In the case in 69 Missouri the bonds had been issued by Greene County to the Hannibal & St. Joseph Railroad Company, to aid in building the road through that county. The case did not show that there was any connection between the Hannibal & St. Joseph Railroad Company and the railroad to be built, nor what railroad it was, nor that Greene County had ever subscribed to the stock of any railroad .company.

The exceptions taken on the trial, as above set forth, do not present any question different from those which have been discussed. The bonds and coupons were properly read in evidence, and so were the certified copies of the tax levies.

As to the levying and collection of taxes, Congress has not exclusive jurisdiction, but that power belongs to the State.

Cooley, Tax. 384, 605; Loughborough v. Blake, 18 U. S. 5 Wheat. 317 (5: 98).

The States may tax subjects of commerce where Congress has not acted at all upon the subject.

Cooley v. Bd. of Wardens, 53 U. S. 12 How. 299 (13: 996); Crandall v. Nev. 73 U. S. 6 Wall. 35 (18: 745,; Cooley, Const. Lim. 605, 606.

A State can levy taxes upon business or property of nonresidents within that State.

Duer v. Small, 4 Blatchf. 263; Com. v. Mil ton, 12 B. Mon. 212, 218; Catlin v. Hull, 21 Vt. 152; Nathan v. La. 49 U. S. 8 How. 73, 82 (12: 996); Corfield v. Coryell, 4 Wash. C. C. 380.

The license issued by the Federal Govern We find no error in the record, and the judgment for revenue purposes does not supersede ment of the Circuit Court is affirmed.

WILLIAM G. ASHER, Plff. in Err.,

v.

STATE OF TEXAS.

(See S. C. Reporter's ed. 129–132.)

state regulations, and must be received subject to all such requirements of license fees as the State may have seen tit to impose.

McGuire v. Com. 70 U. S. 3 Wall. 388 (18: 226); Pervear v. Com. 72 U. S. 5 Wall. 475, 480 (18: 608); Com. v. Thorniley, 6 Allen, 445; Com. v. Keenan, 11 Allen, 262; Block v. Jacksonville, 36 Ill. 301; State v. Carney, 20 Iowa, 82; State v. Stutz, 20 Iowa, 488.

A law imposing a license tax on transient

Law imposing tax on commercial drummer, un persons doing business within the State does

Argued Oct. 11, 12, 1888. Decided Oct. 29, 1888.

ERROR to the Court of

of the

not violate the provisions of the Federal Constitution.

2 Desty, Taxn. 1389; Cole v. Randolph, 31 La. Ann. 535; State v. Shapleigh and State v. North, 27 Mo. 344, 464; Biddle v. Com. 13 Serg. & R. 405.

A state law imposing a license fee upon merchants who go from place to place soliciting orders is not unconstitutional.

2 Desty, v. State,

Istate of Texas, to review a judgment deny. Blackt. 590; Sears v. Warren Co. 36 Ind. 267,

ing a habeas corpus for the discharge of plaint-
iff in error, who was imprisoned for failure to
pay a fine imposed for a violation of the law in
regard to drummers. Reversed.

Reported below, 23 Tex. App. 662.
The facts are stated in the opinion.
Messrs. Abel Crook and John J. McElhone,
for plaintiff in error:

The State possesses the power to impose an occupation tax without discrimination upon its own citizens; but the statute imposing such tax, when applied to the citizens of other States, is unconstitutional.

Ward v. Md. 79 U. S. 12 Wall. 418 (20: 449); Robbins v. Shelby Co. Tax Dist. 120 U. S. 489 (30: 694); Re Hennick, 1 Inters. Com. Rep. 66,

Re Rudolph, 2 Fed. Rep. 65.

A State can levy taxes upon business or property of nonresidents within the State.

Duer v. Small, 4 Blatchf. 263; Com. v. Milton, 12 B. Mon. 212-218; Osborne v. Mobile, 83 U. S. 16 Wall. 479-483 (21: 470, 473).

Mr. Justice Bradley delivered the opinion of the court:

This is a writ of error to the Court of Appeals of the State of Texas in a case of habeas corpus. By an Act of the Legislature of Texas, passed May 4, 1882, it was provided that there shall be levied on and collected "from every commercial traveler, drummer, salesman or solicitor of trade by sample or

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...

otherwise an annual occupation tax of thirty-this case and that of Robbins v. Shelby County five dollars, pavable in advance; to be Taxing District, decided in October Term, paid to the comptroller of public accounts, whose 1886, and reported in 120 U. S. 489 [30: 694]. ieceipts under seal shall be evidence of the pay- The Tennessee law in that case declared that ment of such tax;" and it was provided that "All drummers, and all persons not having a every such commercial traveler, drummer, etc., regular licensed house of business in the taxing 'shall, on demand of the tax collector of any district, offering for sale or selling goods ar county of the State, or any peace officer of said merchandise therein by sample, shall be recounty, exhibit to such officer the comptroller's quired to pay to the county trustee the sum of receipt;" and on refusal shall be deemed $10 per week or $25 per month for such priviguilty of misdemeanor and fined in a sum not lege;" and it was made a misdemeanor, punless than twenty-five nor more than one hun- ishable by fine, to exercise such occupation dred dollars." And by article 110, chap. 5, title without having first paid the tax or obtained 4 of the Penal Code of the State of Texas, it is the license required therefor. The plaintiff in provided that "Any person who shall pursue error in that case was a citizen of Ohio, and or follow any occupation, calling or profession, was convicted for selling goods by sample for or do any act taxed by law without first obtain- an Ohio firm without having paid the tax or ing a license therefor, shall be fined in any obtained the required license. The law was in sum not less than the amount of the taxes so all substantial respects the same and the cirdue, and not more than double that sum." cumstances were substantially the same as in the case now presented. Indeed, this is conceded by the Court of Appeals of Texas in its opinion. But it is strenuously contended by that court that the decision of this court in Robbins v. Shelby Taxing District is contrary to sound principles of constitutional construction and in conflict with well adjudicated cases formerly decided by this court and not overruled. Even if it were true that the decision referred to was not in harmony with some of the previous decisions, we had supposed that a later decision in conflict with prior ones had the effect to overrule them, whether mentioned and commented on or not. And as to the constitutional principles involved, our views were quite fully and carefully, if not clearly and satisfactorily, expressed in the Robbins Case. We do not propose to enter upon a renewed discussion of the subject at this time. If any further illustration is desired of the unconstitutionality of local burdens imposed upon inter

By a statement of facts agreed upon by the parties in the court below, it appears that Will iam G. Asher, the plaintiff in error, "is a resident and citizen of the City of New Orleans, State of Louisiana, and on the 27th day of May, A. D., 1887, and for about the period of one month prior thereto was engaged in the business of soliciting trade by the use of samples for the house for which he worked as drummer in the City of Houston, Harris County, State of Texas, said house being Charles G. Schulze, of New Orleans, Louisiana, who was a manufacturer of rubber stamps and stencils, for the sale of which said Asher was then and there soliciting orders or trade. While engaged in the act of drumming for said Charles G. Schulze, and for the claimed offense of not having taken out the required license for so doing said business, the defendant, William G. Asher, was arrested by one George Ellis, Sheriff of said County of Harris, State of Texas, and carried before the Hon. James A. Breed-state commerce by way of taxing an occupation ing, a Justice of the Peace of Precinct No. 1 of said County of Harris, State of Texas, and fined for the offense of pursuing the occupa tion of drummer without a license. It is admitted that Charles G. Schulze is engaged in manufacturing in New Orleans, State of Louisiana, and in selling rubber stamps and stencils, and that it was a line of such articles for the sale of which the said defendant, William G. Asher, was drumming at the time of his arrest; that the relator, Asher, was soliciting said orders and was making said sales for his said nonresident employers in the County of Harris and in the State of Texas."

directly concerned therein, reference may be made to the still more recent case of Leloup v. Port of Mobile, 127 U. S. 640 [32: 311], which related to a general license tax on telegraph companies, and was decided by the unanimous concurrence of the court.

The judgment of the Court of Appeals of Texas is reversed, and the cause remanded, with instructions to discharge the plaintiff in error from the imprisonment complained of.

THOMAS C. CHAPPELL, Piff. in Err.,

V.

JOHN B. BRADSHAW.
(See S. C. Reporter's ed. 132-134.,

Being imprisoned for failure to pay the fine imposed upon him, Asher applied to the court of appeals for a writ of habeas corpus to be discharged, on the ground that the law under which he was restrained of his liberty is uncon- Review of state judgment—when may be had.

stitutional and void, and contravenes the Constitution of the United States, being repugnant to that clause thereof which gives to Congress the power to regulate commerce among the several States and the laws of Congress passed thereunder. The writ of habeas corpus was issued and, the matter being argued before the court of appeals, judgment was given against the petitioner and he was remanded to the custody of the sheriff. To review that judgment this writ of error is brought.

We cannot perceive any distinction between

1. To give this court jurisdiction to review the judgment of a state court, under section 709 of the Revised Statutes, because of the denial by a state claimed under the Constitution or any treaty or court of any title, right, privilege or immunity statute of the United States, it must appear on the record that such title, right, privilege, or immunity in the proper way. was "specially set up or claimed" at the proper time

2. A writ of error in such case cannot be main

tained where the plaintiff in error did not set up or claim in the trial court the limitation, the benefit of which he now insists should have been accorded him.

should have limited the measure of damages to the value of the scow which occasioned the injury complained of, under the provisions of

[No. 1037]. Submitted Oct. 22, 1888. Decided Oct. 29, 1888. I Maryland, review of the ERROR to the Court of Appeals of the favor of Bradshaw for damages by fire to his schooner, resulting from defendant's negli