equivalent to fraud. It does not lie where the injury complained of arises only from the erroneous, but honest, judgment of the lawfully constituted tax tribunal.

The interference by the chancellor in the case at bar and in the Cummings Case rests on something equivalent to fraud in the tribunal imposing the tax. The various boards whose united action is by law intended to effect a uniform assessment on all classes of property are to be regarded as one tribunal, and the whole assessment on all classes of property is to be regarded as one judgment. If any board which is an essential part of the taxing system intentionally, and therefore fraudulently, violates the law, by uniformly undervaluing certain classes of property, the assessment by other boards of other classes of property at the full value, though a literal compliance with the law, makes the whole assessment, considered as one judgment, a fraud upon the fullyassessed property. And this is true although the particular board assessing the complainant's property may have been wholly free from fault of fraud or intentional discrimination. Therefore the injunction might issue against the assessment upon the fully-assessed property, as void altogether, until a new and uniform assessment upon all property according to law could be made. And such is the rule in some courts. Weeks v. Milwaukee, 10 Wis. 263; Hersey v. Board, 16 Wis. 192, 82 Am. Dec. 713; Smith v. Smith, 19 Wis. 619, 88 Am. Dec. 707. The inequity of allowing the taxpayer to escape altogether, and the intolerable inconvenience to the public in the delay incident to such a course, however, lead a court of equity to shape its order so as to allow only so much of the fraudulent judgment to be enforced against the complainant as may be done without imposing on him any inequality of tax burden.

We reach the conclusion, therefore, that the Circuit Court was right in enjoining the unjust, unequal, and (in the sense already explained) fraudulent assessment against the complainant; but we think the order should have required, as a condition of the issuing of the injunction, that the complainant should pay to the proper officers a tax upon the 75 per cent. of the assessment made by defendants. The evidence, taken with the averments of the bill, does not establish that the discrimination against the complainant's property really exceeds this. The condition imposed by the Circuit Court was the payment of the taxes on the assessment for 1897 by the state board of assessors and equalizers. That assessment, as we have found, was annulled by the act of 1897. The order of the court is that the order of injunction be modified as above stated, and that, as thus modified, it be affirmed, at the costs of the appellants.27

27 Other cases in this collection illustrating the appeal to the courts for relief against administrative action in the matter of taxation and revenue: Action against officer: Stetson v. Kempton, 13 Mass. 272, 7 Am. Dec. 145 (1816); Easton v. Calendar, 11 Wend. (N. Y.) 90 (1833); Chegaray v. JenFR.ADM.LAW-38

SECTION 75.-RAILROAD RATE REGULATION

CHICAGO, M. & ST. P. RY. CO. v STATE OF MINNESOTA ex rel. RAILROAD & WAREHOUSE COMMISSION. (Supreme Court of United States, 1890. 134 U. S. 418, 10 Sup. Ct. 462, 33 L. Ed. 970.)

Writ of error to review a judgment of the Supreme Court of the state of Minnesota awarding a writ of mandamus against the Chicago, Milwaukee & St. Paul Railway Company.

BLATCHFORD, J.28 The opinion of the Supreme Court is reported in 38 Minn. 281, 37 N. W. 782. In it the court, in the first place, construed the statute on the question as to whether the court itself had jurisdiction to entertain the proceeding, and held that it had. Of course, we cannot review this decision.

It next proceeded to consider the question as to the nature and extent of the powers granted to the commission by the statute in 'the matter of fixing the rates of charges. On that subject it said: "It seems to us that, if language means anything, it is perfectly evident that the expressed intention of the Legislature is that the rates recommended and published by the commission, assuming that they have proceeded in the manner pointed out by the act, should be not simply advisory, nor merely prima facie equal and reasonable, but final and conclusive as to what are lawful or equal and reasonable charges; that, in proceedings to compel compliance with the rates thus published, the law neither contemplates nor allows any issue to be made or inquiry had as to their equality and reasonableness in fact. Under the provisions of the act, the rates thus published are the only ones that are lawful, and therefore, in contemplation of law, the only ones that are equal and reasonable; and hence, in proceedings like the present, there is, as said before, no fact to

kins, 5 N. Y. 376 (1851); Tracy v. Swartwout, 10 Pet. 80, 9 L. Ed. 354 (1836); Elliott v. Swartwout, 10 Pet. 137, 9 L. Ed. 373 (1836); Cary v. Curtis, 3 How. 236, 11 L. Ed. 576 (1845); action against municipality: Lincoln v. Worcester, 8 Cush. (Mass.) 55 (1851); Falls v. Cairo, 58 Ill. 403 (1871); Ætna Insur. Co. v. Mayor, 153 N. Y. 331, 47 N. E. 593 (1897); Dooley v. United States. 182 U. S. 222, 21 Sup. Ct. 762, 45 L. Ed. 1074 (1901); certiorari: People v. Board of Assessors, 39 N. Y. 81 (1868); People ex rel. Del. & H. Canal Co. v. Parker, 117 N. Y. 86, 22 N. E. 752 (1889); Tomlinson v. Board of Equalization, 88 Tenn. 1, 12 S. W. 414, 6 L. R. A. 207 (1889); injunction: Cleveland, etc., R. Co. v. Backus, 154 U. S. 439, 14 Sup. Ct. 1122. 38 L. Ed. 1041 (1894); Pittsburgh, etc., R. Co. v. Board of Public Works, 172 U. S. 32, 19 Sup. Ct. 90, 43 L. Ed. 354 (1898); Huling v. Ehrich, 183 Ill. 315, 55 N. E. 636 (1899); defense against enforcement: Hagar v. Reclamation District, 111 U. S. 701, 4 Sup. Ct. 663, 28 L. Ed. 569 (1884); appeal: Bureau County v. C., B. & Q. R. Co., 44 Ill. 229 (1867).

28 Only a portion of the opinion of Blatchford, J., is printed.

traverse, except the violation of the law in refusing compliance with the recommendations of the commission. Indeed, the language of the act is so plain on that point that argument can add nothing to its force."

It then proceeded to examine the question of the validity of the act under the Constitution of Minnesota, as to whether the Legislature was authorized to confer upon the commission the powers given to the latter by the statute. It held that as the Legislature had the power itself to regulate charges by railroads, it could delegate to a commission the power of fixing such charges, and could make the judgment or determination of the commission as to what were reasonable charges final and conclusive.

* * *

The construction put upon the statute by the Supreme Court of Minnesota must be accepted by this court, for the purposes of the present case, as conclusive, and not to be re-examined here as to its propriety or accuracy. The Supreme Court authoritatively declares that it is the expressed intention of the Legislature of Minnesota, by the statute, that the rates recommended and published by the commission, if it proceeds in the manner pointed out by the act, are not simply advisory, nor merely prima facie equal and reasonable, but final and conclusive as to what are equal and reasonable charges; that the law neither contemplates nor allows any issue to be made or inquiry to be had as to their equality or reasonableness in fact; that, under the statute, the rates published by the commission are the only ones that are lawful, and therefore, in contemplation of law, the only ones that are equal and reasonable; and that, in a proceeding for a mandamus under the statute, there is no fact to traverse except the violation of law in not complying with the recommendations of the commission. In other words, although the railroad company29 is forbidden to establish rates that are not equal and reasonable, there is no power in the courts to stay the hands of the commission, if it choses to establish rates that are unequal and unreasonable.

This being the construction of the statute by which we are bound in considering the present case, we are of opinion that, so construed, it conflicts with the Constitution of United States in the particulars. complained of by the railroad company. It deprives the company of its right to a judicial investigation, by due process of law, under the forms and with the machinery provided by the wisdom of successive ages for the investigation judicially of the truth of a matter in controversy, and substitutes therefor, as an absolute finality, the action of a railroad commission which, in view of the powers conceded to it by the state court, cannot be regarded as clothed with judicial functions, or possessing the machinery of a court of justice.

29 (Sic?) should be "commission."

Under section 8 of the statute, which the Supreme Court of Minnesota says is the only one which relates to the matter of the fixing by the commission of general schedules of rates, and which section, it says, fully and exclusively provides for that subject,30 and is complete in itself, all that the commission is required to do is, on the filing with it by a railroad company of copies of its schedules of charges, to "find" that any part thereof is in any respect unequal or unreasonable, and then it is authorized and directed to compel the company to change the same, and adopt such charge as the commission "shall declare to be equal and reasonable"; and to that end it is required to inform the company in writing in what respect. its charges are unequal and unreasonable. No hearing is provided for; no summons or notice to the company before the commission has found what it is to find, and declared what it is to declare; no opportunity provided for the company to introduce witnesses before the commission-in fact, nothing which has the semblance of due process of law; and although, in the present case, it appears that, prior to the decision of the commission, the company appeared before it by its agent, and the commission investigated the rates charged by the company for transporting milk, yet it does not appear what the character of the investigation was, or how the result was arrived at.

By the second section of the statute in question, it is provided that all charges made by a common carrier for the transportation of passengers or property shall be equal and reasonable. Under this provision, the carrier has a right to make equal and reasonable charges for such transportation. In the present case, the return alleged that the rate of charge fixed by the commission was not equal or reasonable, and the Supreme Court held that the statute deprived the company of the right to show that judicially. The question of the reasonableness of a rate of charge for transportation by a railroad company, involving, as it does, the element of reasonableness both as regards the company and as regards the public, is eminently a question for judicial investigation, requiring due process of law for its determination. If the company is deprived of the power of charging reasonable rates for the use of its property, and such depriva

30 Section 9 (f) of the act of Minnesota (Laws 1887, c. 10) provided: "Said commission may from time to time make or amend such general rules or orders as may be requisite for the order and regulation of proceedings before it, includings forms of notices and service thereof, which shall conform as nearly as may be to those in use in the courts of this state. Any party may appear before said commission and be heard in person or by attorney."

The opinion delivered by the Supreme Court of Minnesota (State v. Chicago, M. & St. P. Ry. Co., 38 Minn. 281, 37 N. W. 782 [1888]) made no reference to this provision.

The Supreme Court of the United States, in San Diego Land & Town Co. v. National City, 174 U. S. 749, 19 Sup. Ct. 804, 43 L. Ed. 1154 (1899), said: "Observe that this court based its interpretation of the statute of Minnesota upon the construction given to it by the Supreme Court of that state."

tion takes place in the absence of an investigation by judicial machinery, it is deprived of the lawful use of its property, and thus, in substance and effect, of the property itself, without due process of law, and in violation of the Constitution of the United States; and, in so far as it is thus deprived, while other persons are permitted to receive reasonable profits upon their invested capital, the company is deprived of the equal protection of the laws.

It is provided by section 4 of article 10 of the Constitution of Minnesota of 1857, that "lands may be taken for public way, for the purpose of granting to any corporation the franchise of way for public use," and that "all corporations, being common carriers, enjoying the right of way in pursuance to the provisions of this section, shall be bound to carry the mineral, agricultural, and other productions and manufactures on equal and reasonable terms." is thus perceived that the provision of section 2 of the statute in question is one enacted in conformity with the Constitution of Min

nesota.

The issuing of the peremptory writ of mandamus in this case was, therefore, unlawful, because in violation of the Constitution of the United States; and it is necessary that the relief administered in favor of the plaintiff in error should be a reversal of the judgment of the Supreme Court awarding that writ, and an instruction for further proceedings by it not inconsistent with the opinion of this court.

In view of the opinion delivered by that court, it may be impossible for any further proceedings to be taken other than to dismiss the proceeding for a mandamus, if the court should adhere to its opinion that, under the statute, it cannot investigate judicially the reasonableness of the rates fixed by the commission. Still, the question will be open for review; and the judgment of this court is that the judgment of the Supreme Court of Minnesota, entered May 4, 1888, awarding a peremptory writ of mandamus in this case, be reversed, and the case be remanded to that court, with an instruction for further proceedings not inconsistent with the opinion of this court.

BRADLEY, GRAY, and LAMAR, JJ., dissent.31

INTERSTATE COMMERCE COMMISSION v. ALABAMA MIDLAND RY. CO.

(Supreme Court of the United States, 1897. 168 U. S. 144, 18 Sup. Ct. 45, 42 L. Ed. 414.)

Appeal from the United States Circuit Court of Appeals for the Fifth Circuit.

On the 27th day of June, 1892, the Board of Trade of Troy, Ala., filed a complaint before the Interstate Commerce Commission, at Wash

31 See, also, Freund, Police Power, § 381.