This suit is brought against the defendants as the state board of equalizers, to enjoin the certification by them to the state comptroller of the assessed valuation on complainant’s property for taxation for 1897 and 1898, and in this method to. prevent the comptroller from certifying the apportioned valuations to the various counties and municipal corporations in the state entitled to collect taxes in proportion to the mileage of railway lying in such counties and municipal corporations. It appears from the allegations of the bill in this case, as it did in those in Railroad and Telephone Cases,
“(l) That the assessments were made by the state railroad commissioners, appointed under an act which, it is claimed, is unconstitutional, as violating the state -constitution, and the United States constitution, and these assessors could not, “therefore, lawfully make the assessments. (2) That the same property had been :already validly assessed and certified for the year 1897, and that a reassessment for the year 1897 is unauthorized and void. (3) That discrimination ¡Is made against railroad property, which, if sold for unpaid taxes, is not sold subject to redemption, while other property as a species or class is. This, 11 is claimed, is a denial of the equal protection of the law by the state. (4) Errors in receiving and rejecting evidence by the board are specified. (5) It is alleged that plaintiff has been deprived of the right of equalization under the laws applicable to railroad and telephone properties, while such equalization is provided for and allowed in respect to all other property in the state subject to taxation. It is alleged that, in consequence of the denial of this right, complainant’s property is assessed at 25 to 40 per cent, more in proportion to value than other classes of property in the state. This, it is said, is in violation of the state constitution, and also of Const. U. S. Amend. 14, wherein it is provided: ‘Nor shall any state deprive any person of life, liberty or property, without due process of law, nor deny to any person within its jurisdiction the ■equal protection of the laws.’ ”
Tbe provision of the state constitution is as follows:
“All property shall be taxed according to its value, that value to be ascertained •In such manner as the legislature shall direct, so that taxes shall be equal and uniform throughout the state. No one species of property from which a tax may be collected, shall be taxed higher than any other species of property of the same value.” Const. Tenn. art. 2, § 28.
In this connection the bill sets out, somewhat in detail, the provisions of the tax laws applicable to railroad and telephone properties as .a class, and those which apply to other property as a class, including the features which it is claimed are discriminating in character, stating. also the results of these laws in their practical administration.
The question as to the jurisdiction of this court, raised by the demurrer, must first be considered and decided, for it depends upon the disposition to be made of that question whether it is within the province of this court to determine any other issue presented in the case. This is the question to which the discussion has been ■ mainly directed, and relates to federal, as distinguished from state, jurisdiction. The argument has taken such a range as renders it necessary to examine at some length into the general jurisdiction of: the courts of the United States, original and appellate, over “suits of a civil nature at common law or in equity,” as shown by the decisions of the supreme court of the United States and the legislation of congress,, first referring to the constitutional grant or declaration of the judicial power, which lies at the very foundation of the whole matter. Among other specified cases, the national constitution declares that “the judicial power shall extend to all cases in law and equity arising under this constitution, the laws of the United states and treaties made, or which shall be made under their authority.” Const, art. 3, § 2. The constitution further ordains “that the judicial power of the United States shall he vested in one supreme court, and in such inferior courts as the congress may, from time to time, ordain and establish.” Id. § 1. The constitution expressly extended the original jurisdiction of the supreme court of the United States to certain named cases, and conferred on that court appellate jurisdiction over all other cases coming within the national judicial power, “with such exceptions, and under such regulations, as the congress shall make.” The constitution did not otherwise undertake to distribute the jurisdiction, — that subject being left to congress, — the constitution in that respect not being self-executing. It has consequently been held from the beginning that the appellate jurisdiction of the supreme court can only be exercised in accordance with the acts and regulations of congress upon that subject. Wiscart v. D’Auchy (1794)
■‘This cons¡Ltuiion and ¿lio laws of 1he United States, which snau be made in pursuance thereof, shall be the supreme law of the land.” Const. TJ. S art 6, cl. 2.
To preserve this supremacy, it was deemed necessary to invest the courts of the United tftates with the power of original or final determination of all causes of the classes specified in the constitution.
In Cohens v. Virginia,
“The general government, though limited as to its objects, is supreme wills respect to those objects. This principle is a part of the constitution, and, if there be any who deny its necessity, none can deny its authority.”
“One of the instruments by which this duty may be peaceably performed is the judicial department. It is authorized to decide all cases of every description arising under the constitution or laws of the United States.”
The same proposition was stated in. another form by the court in Whitten v. Tomlinson,
“By the judicial system of the United States, established by congress under the power conferred upon it by the constitution, the jurisdiction of the courts of the several states has not been controlled or interfered with, except so far as necessary to secure the supremacy of the constitution, laws, and treaties of the United States.”
.And so, in Osborn v. Bank,
“All governments which are not extremely defective in their organization must possess, within themselves, the means of expounding, as well as enforcing, their own laws. If we examine the constitution of the United States, we find that its framers kept this great political principle in view. The second article vests the whole executive power in the president, and the third article declares ‘that the judicial power shall extend to all cases in law.and equity arising under this constitution, the laws of the United States, and treaties made, or which shall be made under their authority.’ This clause enables the judicial department to receive jurisdiction to the full extent of the constitution, laws, and treaties of the United States; when any question respecting them shall assume such a form .that the judicial power is capable of acting on it. That power is capable of acting only when the subject is submitted to it by a party who asserts his rights in the form prescribed by law. It then becomes a case, and the constitution declares that the judicial power shall extend to all cases arising under the constitution, laws, and treaties of the United States.”
In the cases of Cohens v. Virginia,
It must be observed in the outset, and never forgotten, that the jurisdiction of the courts of the United States, depending on the subject-matter or character of the case, whether exercised' directly as original jurisdiction, or indirectly in the form of appellate jurisdiction over final judgments of the state courts, extends to and is limited by the class of cases specified in the constitution in which the jurisdiction depends upon the character of the case. The application of this proposition will appear further on.
In Osborn v. Bank,
“Original jurisdiction, so far as the constitution gives a rule, is eo-extensive with the judicial power. We find in the constitution no prohibition to its exercise in every ease in which the judicial power can be exercised. It would be a very bold construction to say that this power could be applied in its appellate form only to the most important class of cases to which it is applicable. The constitution establishes the supreme court, and defines its jurisdiction. It enumerates cases in which its jurisdiction is original and exclusive, and then defines that which is appellate, but does not insinuate that in any such case the power cannot be exercised in its original form by courts of original jurisdiction. It is not insinuated that the judicial power, in cases depending on the character of the cause, cannot be exercised in the first instance in the courts of-*173 Hie Union, but must first be exorcised in the tribunals of the slate; tribunals over which the government of the Union has no adequate control, and which may be closed to any claim asserted under a law of the United States. We perceive, then, no ground on which the proposition can be maintained that congress is incapable of giving the circuit courts original jurisdiction in any case to which the appellate jurisdiction extends.”
It is very true that congress, in the distribution of jurisdiction not otherwise distributed and extended by the constitution itself, may confer all or less than all of this jurisdiction on different courts of the Union, and may vest such jurisdiction in those courts in an original or appellate form, as it may think best; but in the distribution of jurisdiction the constitutional limit on jurisdiction must be respected, and cannot be exceeded. So that jurisdiction, original or appellate, as depending on the subject-matter or character of the litigation, must be limited to cases involving a federal question, and cannot be ex-iended to cases nonfederal in their character. Practically, and in suits of a civil nature, the cases coming within the jurisdiction of the courts of the United States divide themselves into two great classes: hirst, where the jurisdiction is founded on the character of the parties; and. second, where jurisdiction depends on the subject-matter or character of the suit. In regard to these hvo> classes of cases the supreme court, in Cohens v. Virginia, supra, said;
‘■In one description of cases tlie jurisdiction of tlie court Is founded entirely on tlie character of the parries, and the nature of the controversy is not contemplated by the constitution. The character of the parties is everything, the nature of the case nothing. In the other description of cases the jurisdiction is founded entirely on the character of the cast!, and the parties are not contemplated by the constitution. In these the nature of the case is everything, the character of the parties nothing.”
In the judiciary act of 1887, as corrected by the act of 1888 (25 Stat. 131), the provision with respect to the original jurisdiction of this court is:
•‘That the circuit courts of (he United States shall have original cognizance concurrent with the courts of the several states, of all suits of a civil nature, at common law or in equity, where the matter in dispute exceeds, exclusive of interest and costs, (he sum or value of two thousand dollars, and arising under the constitution or laws of the United States, or treaties made, or which shall be made under their authority.”
The original cognizance here is “concurrent with the courts of the several states,” for the presumption in all cases is, and justly so, that ¡he courts of the states will do what the constitution and laws of the United States require. St. Louis, I. M. & S. R. Co. v. Southern Exp. Co.,
'Now, the first section of the act of 1887 relating to the original jurisdiction of the federal courts in this class of cases, where the federal question is the ground of jurisdiction, is identical in language and effect with the corresponding section of the act of 1875, except that the jurisdictional amount is increased: and, of course, the section in each act relating to the original jurisdiction of this court must receive the same construction. Removal of suits by defendants under section 2 of this act of 1887 is limited to suits “of which the circuit courts of the United States are given original jurisdiction by the preceding section.” The jurisdiction of the circuit court is therefore limited on removal by the defendant to such suits as might have been instituted in that court by the plaintiff under the first section, and the effect was to change and greatly restrict jurisdiction by removal. The result is that a case not depending upon the citizenship of the parties nor otherwise specially provided for, cannot be removed from a state court into a circuit court of the United States as one arising under the constitution or laws of the United States, unless that appears by the plaintiff’s statement of his own claim; and, if it does not so appear, the want cannot be supplied by any statement in the petition for removal, or any pleading subsequent to plaintiff’s statement of his own claim, as might have been done under the corresponding clause in the second section of the act of 1875. Chappell v. Waterworth,
Under the judicial system of the United States as now established by congress under the power conferred upon it by the constitution, the courts of the United Stales, besides their original jurisdiction, exercise jurisdiction in three different methods over proceedings ■ instituted in the courts of the states, and subsequently brought before the courts of the United States: First. Cases may be removed on writ of error to Anal judgments rendered by the highest court of a state in cases in which there is set up or claimed a right under the constitution, laws, or treaties of the United States, and the decision of the state court is against such right. Rev. St. § 709. In this class of cases the Anal judgments of the highest courts of the states may be re-examined and reversed or affirmed by the supreme court of the United Stales. Second. Cases may be removed into tbe circuit court of the United States from a state court under section 2 of the judiciary act of 1887 “of suits of a civil nature arising under the constitution or laws of the United States, or treaties made or which shall be made under their authority,” which has already been sufficiently referred to. Third. In the exercise of the power conferred on them, the supreme, circuit; and district courts may grant writs of habeas corpus for the purpose of inquiring into the cause of restraint of liberty of prisoners held in custody under authority of a state in violation of the constitution, laws, or treaties of the United States, and other specified cases. Whitten v. Tomlinson,
It is to be further observed that to sustain the original jurisdiction of this court, as well as the jurisdiction by removal of cases from a state court under section 2 of the judiciary act, where the jurisdiction depends on the existence of a federal question, the suit must be one arising directly under the constitution or laws of the United States,
“Before considering further this branch of the case, it is proper to notice the difference between the provisions of the act of 1875 for the removal of suits presenting federal questions, and those in section 709 of the Revised Statutes for the review by this court of the decisions of the highest courts of the states. Under the act of 1875, for the purposes of removal, the suit must be one ‘arising under the constitution or laws of the United States, or treaties made or which shall be made under their authority’; that is to say, the suit must be one in which- some title, right, privilege, or immunity on which the recovery depends will be defeated by one construction of the constitution, or a law or treaty of the- United States, or sustained by a contrary construction. Starin v. Oity of New York,115 U. S. 2 -18, 257, 0 Sup. Ct. 28, and cases there cited. But under section 709 there may be a review by this court of the decisions of the highest courts of the states in suits ‘where any title, right, privilege, or immunity is claimed under the constitution, or any treaty or statute of, or commission held or authority exercised under, the United States, and the decision is against the title, right, privilege, or immunity, specially set up or claimed by either party under such constitution, treaty, statute, commission, or authority.’ For the purposes of a removal, the constitution or some law or treaty of the United States must be directly involved, while for the purposes of review it will be enough if the right in question comes from a ‘commission held or an authority exercised under the United States.’ Cases, therefore, relating to the jurisdiction of this court for review, are not necessarily controlling in reference to removals.”
It is to be observed again that the distinction here pointed out, does not relate to any difference in the nature of the federal question on which jurisdiction depends, exercised in either form, but relates to a difference in the mode in which the question arises, and grows out of the more comprehensive language employed in reference to appellate jurisdiction under section 709 than in the judiciary act in which original jurisdiction is determined and defined. The class of cases, then, to which the appellate jurisdiction of the supreme court of the United States extends, is more comprehensive than the class coming' within the original jurisdiction of this court by reason of the manner in which the question is presented. This is so, however, only because congress has made it so, and not because, under the definition of federal jurisdiction, as contained in the constitution, the exercise of jurisdiction in the two methods might not have been made co-extensive as to the class of cases.
In Mayor v. Cooper,
“As regards all courts of the United States inferior to this tribunal, two things are necessary, to create jurisdiction, whether original or appellate. The constitution must liave given to the court the capacity to take it, and an act of eon-*177 grass nmst have supplied it. Their concurrence is necessary to vest it It is the duty of congress to act for that purpose up to the limits of the granted power. They may fall short of it, hut cannot exceed it. To the extent that such action is not taken, the power lies dormant. It can he brought into activity in no other way. Jurisdiction, original or appellate, alike comprehensive in (>iiher case, may be given. The constitutional boundary line of both is the samo. Every variety and form of appellate jurisdiction, within the sphere of die power, extending as well to the courts of the states as to those of the nation, is permitted. * * * The jurisdiction here in question involves the same principle, and rests upon the same foundation, with that conferred by the twenty-fifth section of the judiciary act of 1789.”
It lias been seen that, while the appellate jurisdiction extends to a larger class of cases, the actual exercise of that jurisdiction is restricted to the federal question only. On the contrary, while the original jurisdiction of this court under section 1 of the judiciary act and its jurisdiction by removal under section 2 of the same act is limited to cases in which the federal question is directly involved, when the jurisdiction does properly attach, it extends to the'whole case, and to all of the issues raised, whether of a federal or nonfederal character, and the court has power to decide upon all questions. Osborn v. Bank,
This inquiry into the exercise of jurisdiction in different forms, as depending on a federal question, has been thought necessary in view of the ground on which the argument for defendants proceeds. The contention for defendants is that the federal questions on which original and appellate jurisdiction, under section 709, Rev. St., depend, are
“We entertain no doubt of the constitutionality of the jurisdiction given by the acts under which this case has arisen. The validity of the defense authorized to be made is a distinct subject. It involves wholly different inquiries. We have not had occasion to consider it. It has no connection whatever with the question of jurisdiction.”
And again, in Insurance Co. v. Needles,
“And our jurisdiction is not defeated because it may appear, upon examination of this federal question, that the statutes of Illinois are not repugnant to the provisions of that instrument. Such an examination itself involves the exercise of jurisdiction. The motion to dismiss the writ of error upon the ground that the record does not raise any question of a federal nature must, therefore, be denied.”
So, in Southern Pac. R. Co. v. California,
“Applying these rules, which must now be considered as settled, to the present case, it is apparent that the court below erred in deciding that the suit was not removable, for it distinctly appears that the right of the state to recover was made by the pleadings (to depend (1) on the power of the slate to tax the franchises of the corporation derived from the acts of congress, which were specially referred to, as well as the property used in connection therewith; and (2) on the effect of article 14 of the amendment of the constitution on the validity of the statutes under which the taxes sued for were levied. The first depended on the construction of the acts of congress, and the second on the construction of the constitutional amendment. If decided in one way, the state might recover; if in another, it would be defeated, at least in part. The right of removal does not depend upon the validity of the claim set up under the constitution or laws. It is enough if the claim involves a real and substantial dispute or controversy in the suit. In this case there can .be no doubt about that.”
The distinction was brought out clearly again in the recent case of Insurance Co. v. Austin,
“Of course, the claim must be real and colorable, not fictitious and fraudulent. The contention here made, however, is not that the bill, without color of right, alleges that the state law and city ordinances violate the constitution of the United States, but that such claim as alleged in the bill is legally unsound. The .argument, then, in effect, is that th@ right to a direct appeal to this court does*179 not exist where it is claimed that a state law violates tlie constitution of the United States, unless the claim he well founded. But it cannot he decided whether the claim is meritorious, and should he maintained, without taking jurisdiction of the case.”
The same distinction had been referred to, though in general terms, in Cohens v. Virginia,
“In such cases the constitution and the law must he compared and construed. This is the exercise of jurisdiction. It is the only exercise of it which is allowed in such a ease. * * * The whole merits of this case, then, consist in the construction of the constitution and the act of congress. The jurisdiction of the court, if acknowledged, goes no further. This we are required to do without the exercise of jurisdiction. The counsel for the state of Virginia have, in support of this motion, urged many arguments of great weight against the application of the act of congress to such a case as this; hut those arguments go to rhe construction of the constitution, or of the law, or of both, and seem, therefore, rather calculated to sustain their cause upon its merits than to prove a failure of jurisdiction in the court.”
In determining a question of jurisdiction in courts of tbe United ¡átales great care should be exercised not to entertain jurisdiction upon too doubtful ground. The principle which should control the court’s action in respect to such a question was well stated in the case already referred to more than once, Cohens v. Virginia; Mr. Chief Justice Marshall saying:
“It Is most true (hat this court will not take jurisdiction if it should not, hut it is equally true llmt it must take jurisdiction if it should. The judiciary cannot, as the legislature may, avoid a measure because it approaches the confines of the constitution. We cannot pass it by because it is doubtful. With whatever doubts, with whatever difficulties, a case may be attended, we must decide it if it be brought before us. We have no more right to decline the exercise of jurisdiction which is given than to usurp that which is not given. The one or the other would be treason to the constitution. Questions may occur which we would gladly avoid; hut we cannot avoid them. All we can do is to exercise our best judgment, and conscientiously to perform our duty.”
It is conceded, and could not be controverted, that if the Railroad Tax Cases,
In Fraser v. McConway & Torley Co.,
“The court there, in discussing the prohibitions of the amendment, said: ‘Unequal exactions in every form or under any pretense are absolutely forbidden, and, of course, unequal taxation, for it is in that form that oppressive burdens are usually laid.’ ”
The cases havé also been cited by recent text writers as authority, without a suggestion anywhere that the doctrine of the cases has been questioned in subsequent decisions. I think it will be admitted that under such circumstances it is doubtful whether I could properly assume to deny the authority of these cases, unless the doctrine of the cases has been disapproved by a circuit court of appeals, or the supreme court of the United States, by clear implication, as it is admitted that no court has done so expressly.
In Bell’s Gap R. Co. v. Pennsylvania,
“All such regulations, and those of like character, so long as they proceed within reasonable limits and general usage, are within the discretion of the state legislature, or the people of the state in framing their constitution. But clear and hostile discriminations against particular persons and dasses, especially such as are of an unusual character, unknown to the practice of our governments', might be obnoxious to the constitutional prohibition. It would, however, be impracticable and unwise to attempt to lay down any general rule or definition on the subject that would include all eases. They must be decided as they arise.”
In Home Ins. Co. v. New York State,
The early cases of Cohens v. Virginia and Osborn v. Bank stated at great length the jurisdiction of the courts of the United States as depending on the subject-matter and arising under the constitution and laws of the United States. The former was a case of appellate jurisdiction on error to the state court, and the latter a case of original jurisdiction, brought before the supreme court by appeal from the circuit court of Ohio. Those cases made no distinction in the character of the federal question involved in the two distinct forms of exercising jurisdiction, nor has any distinction or difference been suggested in subsequent cases in which those cases have been repeatedly cited indiscriminately as defining a federal question either for original or appellate jurisdiction. In Cohens v. Virginia,
‘•If ii. Tie, 1o maintain that a case arising under the constitution or a law must lie one in which a party comes into court to demand something conferred on him by the constituí ion or a law. we think the const ruction l.oo narrow. A ease in law or equity consists of the right of the one party, as well as of the other, and may truly bo said to arise under the constitution or a law of the United States whenever its correct decision depends on the construction of either. Congress seems to have intended to give its own construction of this pait of the constitution in the twenty-fifth section of the judiciary act, and we ¿perceive no reason to depart from that construction.”
In Tennessee v. Davis,
•‘What constitutes a case thus arising' was early defined in the case cited from fi Wheat. 2(H. It is net merely one where a party comes into court to demand womelhing conferred upon him by the constitution or by a law or treaty. A case consists of the right of one party as well as the other, and may truly be said to arise under the constitution or a law or a treaty of the United States whenever its correct decision depends upon the construction of either. Oases arising under the laws of the United States are such as grow out of (he legislation of congress, whether they constitute the right or privilege, or claim or pro-tec lion, or defense of the party, in whole or in part, by whom they are asserted, btory, Const. § J.(i 17; Cohens v. Virginia,6 Wheat. 379 . It was said in Osborn v. Bank, 9 Wheat 788: ’When a question 1o which the judicial power of the Union is extended by the constitution forms an ingredient of the original cause, it is in the power of congress to give the circuit courts jurisdiction of that cause, although other questions of fact or of law may be involved in it.’ ”
In the ease of U. S. v. Old Settlers,
“As a ease arises under the constitution or laws of the United States whenever its decision depends upon the correct construction of either (Cohens v. Vir*182 ginia, 6 Wheat, 264, 379; Osborn v. Bank,9 Wheat. 737 , 824), so a case arising from or growing' out of a treaty is one inyolying rights given or protected by a treaty. Owings v. Norwood’s Lessee,5 Cranch, 344 , 348.”
In Hamblin v. Land Co.,
“It is doubtful whether there is a federal question in this case. A real, and not a fictitious, federal question is essential to the jurisdiction of this court over the judgments of state courts. Millingar v. Hartupee,6 Wall. 258 ; New Orleans v. New Orleans Waterworks Co.,142 U. S. 79 , 87, 12 Sup. Ct. 142. In the latter case it was said that ‘the bare averment of a federal question is not in all cases sufficient. It must not be wholly without foundation. There must lie at least color of ground for such averment, otherwise a federal question might be set up in almost any case, and the jurisdiction of this court invoked simply for the purpose-of delay.’ ”
And in the case before referred to of Insurance Co. v. Austin,
In Cooke v. Avery, 147 U. g. 384, 13 Sup. Ct. 344, Mr. Chief Justice Fuller, giving the judgment of the court, used this language:
“Whether a suit is one that arises under the constitution or laws of the United States is determined by the questions involved. If from them it appears that some title, right, privilege, or immunity on which the recovery depends will be defeated by one construction of the constitution or a law of the United States, or sustained by the opposite construction, then the case is one arising under the constitution or laws of the United States. Osborn v. Bank,9 Wheat. 738 ; Starin v. City of New York,115 U. S. 248 , 257, 6 Sup. Ct. 28. In Carson v. Dunham,121 U. S. 421 , 7 Sup. Ct. 1030, it was ruled that it was necessary that the construction either of the constitution or some law or treaty should be directly involved in order to give jurisdiction, although for the purpose of the review of the judgments of state courts under section 709 of the Revised Statutes, it would be enough if the right in question came from a commission held or authority exercised under the States.”
City R. Co. v. Citizens’ St. R. Co.,
“There can be no doubt that the circuit court had jurisdiction of the case, notwithstanding the fact that both parties are corporations and citizens of the state of Indiana. It should be borne in mind in this connection that jurisdiction depended upon the allegations of the bill, and not upon the facts as they subsequently turned out to be. The gravamen of the bill is that under the act of the general assembly of 1861, and the ordinances of January 18,1864, and April 7, 1880, the Citizens’ Railroad Company had become vested with certain exclusive rights to operate a street railway in tire city of Indianapolis, either in perpetuity or for the term of thirty years or thirty-seven years, which the city had attempted to impair by entering into a contract with the City Railway Company to lay and operate a railway upon the same streets. All that is necessary to establish the jurisdiction of the court is to show that the complainant had, or claimed in good faith to have, a contract with the city, which the latter had attempted to impair.”
“Before, therefore, a, circuit court can be required to retain a cause under this jurisdiction, it must in some form appear upon the record, by a statement of facts ‘in legal and logical form.’ such as is required in good pleading (1 Chit. PI. 21R), that the suit is one which ‘really and substantially involves a dispute or controversy’ as to a right which depends upon the construction or effect of the constitution, or some law or treaty of the United States. If these facts sufficiently appear in the pleadings, the petition for removal need not restate them: but, if they do not, the omission must be supplied in some form, either by the petition or otherwise.”
In Spencer v. Merchant,
“The question submitted to the supreme court of the state was' whether this assessment on the plaintiff's lot was valid. He contended that the statute of 1881 was unconstitutional and void, because it was an attempt by the legislature to validate a void assessment, without giving the owners of the lands assessed ail opportunity to be heard upon the whole amount of the assessment. He thus directly and in apt words presented the question whether he had been unconstitutionally deprived of his property without due process of law, in viola lion of the first sect ion of the fourteenth amendment to the constitution of the United States, as well as of article 1, § T, of the constitution of New York; and no specific mention of either constitutional provision was necessary in order to entitle him to a decision of the question by any court having jurisdiction txv determine it. The adverse judgment of tiie supreme court, affirmed by the court, of appeals of the state, necessarily involved a decision against a right claimed under the fourteenth amendment to the constitution of the United States, which this court lias jurisdiction to review.”
Other cases might be referred to, but I do not regard this as necessary in view of the principle clearly dedneible from these cases, and in view of which, as applied to the facts found in the statement of this case, I feel constrained to hold that there is here really and substantially involved such a federal question as supports the jurisdiction of this court over the case, both in respect of the right claimed and the mode in which the right is set up in the bill.
It was said in the discussion at bar that the prohibitions of the fourteenth amendment are directed against state action only, and Hie correctness of this proposition is fully conceded, but a too limited definition and a too narrow view of what constitutes state action
In Osborn v. Bank,
“It is not unusual for a legislative act to involve consequences which are not expressed.”
In Scott v. McNeal,
“The fourteenth article of amendment of the constitution of the United States, after other provisions which do not touch this case, ordains: ‘Nor shall any state deprive any person of life, liberty or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.’ These prohibitions extend to all acts of the state, whether through its legislative, its executive, or its judicial authorities. Virginia v. Rives,100 U. S. 313 , 318, 319; Ex parte Virginia, Id. 339, 346; Neal v. Delaware,103 U. S. 370 , 397. And the first one, as said by Chief Justice Waite in U. S. v. Cruikshank,92 U. S. 542 , 554, repeating the words of Mr. Justice Johnson in Bank v. Okely,4 Wheat. 235 , 244, was intended ‘to secure the individual from the arbitrary exercise of the powers of government, unrestrained by the established principles of private rights and distributive justice.’ ”
So, too, in the late case of Chicago, B. & Q. R. Co. v. City of Chicago,
“But it must be observed that the prohibitions of the amendment refer to all the instrumentalities of the state, — to its legislative, executive, and juáieial au-*185 tlioritios, — aM, therefore, whoever by virtue of public position under a state government deprives another of any right protected by that amendment against deprivation by the state ‘violates the constitutional inhibition; and, as he acts in the name and for the state, and is clothed with the state’s power, his act is that of the state.’ This must be so, or, as we have often said, the constitutional prohibition has no meaning, and ‘the state has clothed one of its agents with power to annul or evade it.’ Ex parte Virginia,100 U. S. 339 , 346, 347; Neal v. Delaware,103 U. S. 370 ; Yick Wo v. Hopkins,118 U. S. 356 , 6 Sup. Ct. 1064; Gibson v. Mississippi,162 U. S. 565 , 16 Sup. Ct. 904.”
This doctrine is now fully established. Reagan v. Trust Co.,
It is not necessary, for the purpose of the present question, to review the decisions of the supreme court of the United HI a ten in relation to the proper construction of the fourteenth amendment and its application to the varying facts of different cases. That court itself, as has been seen, expressly declined to give an exhaustive definition of the amendment, preferring to deal with the cases as they arise, and allow the construction in this wav to develop as the cases call for judgment.
In Mobile & O. R. Co. v. Tennessee,
“AYe do not deem it necessary to consider the further point urged by counsel for defendants in error that the exemption clause in question is in conflict with the fourteenth amendment of tlie constitution of the United States. That amendment conferred no new and additional rights, but only extended the protection of the federal eonsiiration over rights of life, liberty, and property that previously existed under all state constitutions.”
In a recent case (State v. Holden,
“The last clause of section 1 of amendment .14 of the federal constitution declares that no state shall ‘deny to any person within its jurisdiction the equal protection of the laws.’ The slaves in the various states in which slavery existed having been liberated during the late war, congress deemed it necessary to make them citizens of the United States, and forbade the slates the denial to them the equal protection of the law. At that time the laws of all the states in terms gave equal protection to all white persons. This amendment, however, is general, and forbids the denial to any class of persons the equal protection of the laws by any state; and we have no doubt that class legislation is forbidden.” i
See, also, Munn v. Illinois,
Wliat must constitute a denial of the equal protection of the law will dependí, in this view, in a large measure, upon what rights have been conferred, or protection extended, under the constitution and laws of the particular state in which the question arises. As the constitution and laws of the states vary, the proposition that each case must, to an extent, depend upon its own facts, is specially applicable to this class of cases. When the state itself undertakes to deal with its citizens by legislation, it does so under certain limitations, and it may not single out a class of citizens, and subject that class to oppressive discrimination, especially in respect to those rights so important as to be protected by constitutional guaranty. That the prohibitions of that amendment are now regarded as protecting the citizen against a denial of the equal protection of the law, and against
In Loan Ass’n v. Topeka,
“Of all the powers conferred upon government that of taxation is most liable-to abuse. Given a purpose or object for which taxation may be lawfully used, and the extent of its exercise is, in its very nature, unlimited. * * * The power to tax is therefore the strongest, the most pervading, of all the powers of government, reaching directly or indirectly to all classes of the people. It was said by Chief Justice Marshall, in the ease of McCulloch v. Maryland, that the power to tax is the power to destroy. A striking instance of the truth of the proposition is seen in the fact that the existing tax of ten per cent, imposed by the United States on the circulation of all other banks than the national hanks drove out of existence every state bank of circulation within a year or-two after its passage. This power can as readily be employed against one class of individuals and in favor of another, so as to ruin the one class and give-unlimited wealth and prosperity to the other, if there is no implied limitation of the uses for which the power may be exercised.”
It may be true that the proposition tbat a tax statute, or the tax laid under a statute, is in violation of the constitution of the state, is not of itself necessarily sufficient to constitute a violation of the fourteenth amendment; but when, in addition to the violation of the state constitution, the statute results in an arbitrary and oppressive-discrimination in regard to a large class of citizens, or a large species of property, it is such class legislation and such denial of the equal protection of the laws as renders it obnoxious to the fourteenth amendment. And the state constitution is important in determining what the rights of the citizen are, and whether equal protection of the law is being denied. If this be not so, the result is that the fourteenth amendment must be regarded as failing to afford protection in respect of the most important of all property rights, and the most dangerous of all powers.
In California v. Pacific R. Co.,
“Taxation is a burden, and may be laid so heavily as to destroy the thing taxed, or render it valueless. As Chief Justice Marshall said in McCulloch v. Maryland, ‘the power to tax involves the power to destroy.’ Recollecting the-fundamental principle that the constitution, laws, and treaties of the United States are the supreme law of the land, it seems to us almost absurd to contend that a power given to a person or corporation by the United States may be subjected to taxation by a state.”
So, in County of Santa Clara v. Southern Pac. R. Co.,
*187 “It is a. matter of history that unequal and discriminating taxation, leveled against special classes, has boon the fruitful means of oppressions, and the cause of more commotions and disturbance in society, of insurrections and revolutions, than any other cause in the world. It would, indeed, as counsel in the County of San Mateo Case,13 Fed. 145 , ironically observed, be a charming spectacle to present to the civilized world, if the amendment were to read as contended it does in law: ‘Nor shall any state deprive any porsou of his property without due process of law, except it he in the form of taxation, nor deny to any persou within its jurisdiction the equal protection of the laws, except it be by taxation.’ No such limitation can be thus ingrafted by implication upon the broad and comprehensive language used. The power of oppression by taxation without due process of law is not thus permitted, nor the power by taxation to deprive any person of the equal protection of the laws.”
In McCulloch v. Maryland,
“The only security against the abuse of this power is found in the structure of the government itself. In imposing a tax the legislature acts upon its constituents. This is, in general, a sufficient security against, erroneous and oppressive taxation.”
This view of the subject necessarily assumes that the tax burden .is laid on all equally and evenly, for otherwise the theory can no longer be sustained. If class discrimination can be accomplished directly or indirectly, the majority can easily destroy the minority, assuming that corporations are so far “constituents” as uot to be distinguished in this regard. It is not difficult, then, to see the wisdom of the state constitution in requiring equality in the burden of taxation. The organic law of Tennessee has brought every citizen in the state into one constitutional class for the purpose of taxation, and provided that taxes shall be assessed and levied on value only as the basis, and at a rate equal and uniform in proportion to value. It is not competent, under the form of classification, to divide up this class and violate the constitution. If the state has, then, by its own constitution, guarantied certain rights to all of its citizens alike, without discrimination, what just or valid objection can be offered to a restraint which deprives the state of the power to deny to a class of citizens the equal protection thus afforded? Is if to be assumed that the good of the state will ever require that it should do so, or that its people, through the legislative department, would ever understandingly undertake to adopt measures which would have that effect? To do so would not only be a great wrong, but violative of sound public policy and sound political economy. It would hardly he insisted that (lie good of any state requires that it should be left free 1o deny to its citizens the equal protection of its hiws in the forra of taxation, or to deprive any person of property without due process of law in that form. If the fourteenth amendment, as construed and applied, goes no further than to prevent such a result as this, what valid objection can be assigned to its application, to this extent, to the power of taxation as well as to state action in other respects? It seems to me that the argument for defendants in the denial that there is here a federal question proceeds upon grounds which deny the application of the fourteenth amendment to the state's power of taxation in any form and to any extent whatever. It will appear from what has been said that I do uot think this view cau be maintained. Certainly, the state Is left
The conclusion that the prohibitions of the fourteenth amendment! apply to the taxing power to the extent indicated, and that there is a federal question which gives jurisdiction, still leaves for disposition the questions here involved on their merits, which will- be treated separately, it being intended in this opinion to deal only with the question of jurisdiction.