Ct. Rep. 714; Lake Shore & M. 8. R. Co. v. with their cattle on account of the difficulOhio, 173 U. S. 285, 292, 43 L. ed. 702, 705, ties and losses above mentioned. Nor does 19 Sup. Ct. Rep. 465; Holden v. Hardy, 169 the failure of the owners to reach the Sioux[299) U. S. 376, 392, 42 L. ed. 781, 791, 18 Sup. City market result in sending all the cattle Ct. Rep. 383. The books contain almost of the "stockers and feeders" class, which countless cases where the question of the would otherwise go to that market, to Minpolice power of the states and its proper lim-neapolis or St. Paul, which would give the itations and conditions have arisen, but long haul for those cattle to the road of the those above cited are sufficient for the pur-plaintiff in error. The evidence is that St. poses of this case. Paul and Minneapolis are much poorer mar. The argument favoring the invalidity set kets for the above named cattle than Sioux up by the plaintiff in error, so far as it is City because of the absence of feed in those founded upon the provisions of the judg-markets, which is present in large quantiment in question, is directed to two alleged ties and at cheaper prices at Sioux City. facts, the first of which is that by making The result has therefore been that this lack track connections the plaintiff in error may of facilities at Hanley Falls has materially be deprived of a long haul of a certain kind injured trade in this particular class of catof cattle, and may be compelled to deliver tle by parties west of Hanley Falls, while 1298]them in a car to be drawn by the *Willmar the plaintiff in error does not secure any road from Hanley Falls to Sioux City. substantially greater amount of such transThis long haul exists, as stated, in transportation for the Minneapolis or St. Paul porting the cattle from Hanley Falls direct- market, for the reason just stated. ly east for about 100 miles to Merriam, near Minneapolis, then, south for another 100 miles, and then westerly to Sioux Falls, 180 miles further, consuming in the transit forty-six to forty-eight hours, when, if the car were placed on the Willmar & Sioux Falls road at Hanley Falls, the transportation would cover but 180 miles, and the time consumed in transit would be but fourteen hours. Second, as to the wood. It seems that there is very little wood along and near the line of the road of the plaintiff in error east of Hanley Falls, and the supply is being rapidly exhausted, but that which yet remains is being brought in decreasing quantities, and comes so dear to the inhabitants of towns west of Hanley Falls that, rather than purchase it they will and do drive from 10 to 15 miles to get to a station on the Willmar road, and there buy wood which they bring back for less than it costs to buy wood on the line of the road of the plaintiff in error coming from stations east of Hanley Falls. The country west of Hanley Falls is rolling prairie and produces no wood. The inhabitants of those towns are buying more wood, and yet are taking less from the The other fact referred to relates to the wood transportation. There is now very little wood left along the line of the road of the plaintiff in error east of Hanley Falls, from which to supply consumers west of that station, and the price is dearer than the wood from northern Minnesota along the stations of the Willmar road. But the complaint is that the enforcement of this judg-road of the plaintiff in error. They obtain ment would compel the plaintiff in error to receive wood from the Willmar road at Hanley Falls, which would thus permit the latter road to enter into competition at stations west of that place with the wood taken from along the line of the road of the plaintiff in error east of that station. In truth, however, competition in the case of either cattle or wood lies more in assertion than in substantial fact. wood as stated by drawing it from stations on the Willmar road anywhere from 10 to 15 miles away. To furnish facilities therefore at Hanley Falls so that the wood from the forests of northern Minnesota may be brought there on the Willmar road and transferred in cars to the road of the plaintiff in error, and transported to stations west of Hanley Falls, is not in fact to compete or provide for competition with the plaintiff First, as to the cattle. This long haul of in error in the article of wood. It is simply 380 miles necessarily causes a great loss in affording facilities to people along the line weight in the cattle, and much greater lia- of its road west of Hanley Falls to obtain bility arises of the lighter cattle being wood by a short haul on the road of the trampled upon and killed by the heavier plaintiff in error, which without such faones in the same car. Such liability in-cilities would be obtained by many people[300] creases the longer the transportation exists. These facts act almost as a complete bar to the traffic in that kind of cattle called "stockers and feeders," from stations west of Hanley Falls over the road of the plaintiff in error to Sioux City. It may be said, therefore, that competition between the roads for the transportation of such cattle to Sioux Falls does not exist. Those who own these cattle and are near enough to Hanley Falls to drive them to that station and there load them upon the Willmar & Sioux Falls Railway do so, but those who are so far off as to make that impracticable have largely given up the attempt to reach Sioux Falls by drawing it in their own conveyances from stations on the Willmar road. These are the facts upon which the plaintiff in error must rest its argument, that to enforce the judgment would compel it to pay its share in the cost of the construction of a track to be used for the purpose of depriving the company of its traffic, and transferring it to its competitor. The facts do not afford a fair foundation for the argument. As has been seen, it is not a case, so far as the cattle are concerned, where the plaintiff in error is deprived of its traffic and compelled to transfer it to another and com peting company. The question is whether this company in its effort to compel owners of this class of cattle to transport them over its road to Minneapolis, which is a less favorable market, can rightfully refuse to make track connections with another company, by which the owners of the cat tle can reach the more favorable market of Sioux City at such a cost as will render the transportation profitable. In the consideration of this question the further fact must be borne in mind that the failure to get to Sioux City with such cattle does not necessarily result in sending them over the road of the plaintiff in error to either Minneapolis or St. Paul, but the lack of facilities at Hanley Falls simply tends to diminish, if not to extinguish, the trade in such cattle west of that station. Other kinds of cattle would still be sent to St. Paul or Minneapolis the same as ever. Can it be possible that a railroad chartered and built primarily for the accommodation and in the interests of the public can under such facts legally refuse the track connections directed in this case? Can it refuse to obey the commands of the legislature in such case upon the sole ground that it may thereby somewhat lessen the earnings of its road? Or can it refuse to make such connections because, if they were made, wood could be brought from the forests of northern Minnesota to all towns along its line west of Hanley Falls, and there sold for a less price than can now be done, when without such connection being made the demand for the wood along the line of the road of the plaintiff in error is nevertheless constantly decreasing, owing to its quality and price? We think these questions [801]should receive a negative answer. The interests of the public should not be thus wholly, and it seems to us unjustifiably, ignored. public, and that it does not, regard being had to the facts, unduly, unfairly, or improperly affect the pecuniary rights or interests of the plaintiff in error. As we have said, it is unnecessary in this case to determine the question of the validity of the whole act with regard to all its provisions and details. We need express no opinion upon that subject. We simply here determine that the judgment actually rendered, directing this track connection to be made and thus affording track facilities at Hanley Falls, does not violate the constitu tional rights of the plaintiff in error. The distinction between this case and that of Lake Shore & M. S. R. Co. v. Smith, 173 U. S. 684, 43 L. ed. 858, 19 Sup. Ct. Rep. 565, is plain. There we held that the statute in question was not a reasonable regulation of the business of the company; that it was the exercise of a pure, bald, and unmixed power of discrimination in favor of a *few of the[302) persons having occasion to travel on the road, permitting them to do so at a less expense than others, provided they could buy a certain number of tickets at one time. It was not legislation for the safety, health, or proper convenience of the public, but an arbitrary enactment in favor of the persons spoken of, who, in the legislative judgment, should be carried at a less expense than the other members of the community, and there was no reasonable ground upon which the legislation could be rested, unless the simple decision of the legislature should be held to constitute such reason. In this case the provision is a manifestly reasonable one, tending directly to the accommodation of the public, and in a mats ner not substantially or unreasonably detri mental to the ultimate interests of the cor poration itself. Although to carry out the judgment may require the exercise by the plaintiff in error of the power of eminent domain, and will also result in some, comparatively speaking, small expense, yet neither fact furnishes an answer to the application of defendant in error. Worcester v. Norwich & W. R. Co. 109 Mass. 112; People ex rel. Green v. Dutchess & C. R. Co. 58 N. Y. 152, 163; People ex rel. Kimball v. Boston & A. R. Co. 70 N. Y. 569; People v. New York, L. E. & W. R. Co. 104 N. Y. 58, 67, 58 Am. Rep. 484, 9 N. E. 856. Taking the facts which we have already enumerated into consideration, we think there is no justification furnished for the argument that the judgment, if enforced, would violate any of the constitutional rights of the plaintiff in error. In so deciding we do not at all mean to hold that under no circumstances could a judgment enforcing track connections between two railroad corporations be a violation of the constitutional rights of one or the other, or possibly of both such corporations. It would depend upon the facts surrounding the cases in regard to which the judgment was given. The reasonableness of the judgment with reference to the facts concerning each case must be a material, if not a controlling, factor Kenna dissented. upon the question of its validity. A statute, or a regulation provided for therein, The judgment of the Supreme Court of Minnesota is therefore affirmed. Mr. Justice White and Mr. Justice Me is frequently valid, or the reverse, according DULUTH & IRON RANGE RAILROAD as the fact may be, whether it is a reasonable or an unreasonable exercise of legislative power over the subject-matter involved. And in many cases questions of degree are the controlling ones by which to determine the validity, or the reverse, of legislative action. We think this case is a reasonable exercise of the power of regulation in favor of the interests and for the accommodation of the COMPANY, Plff. in Err., v. COUNTY OF ST. LOUIS. (See S. C. Reporter's ed. 302-305.) Constitutional law — contracts — impairing NOTE.-A8 to reserved power to alter, amend, or repeal-see note to Greenwood ▼. Union Freight R. Co. 26 L. ed U. S. 961. cannot be exercised so as to relieve the state power to alter, after the adoption of the constitutional The reserved power to alter, amend, or repeal [No. 173.] Argued October 17, 1900. Decided Decem- The facts are stated in the opinion. Mr. Frank B. Kellogg argued the cause, and, with Messrs. J. II. Chandler, H. J. Grannis, and C. A. Severance, filed a brief for plaintiff in error. Mr. W. B. Douglas argued the cause and filed a brief for defendant in error. [303] *Mr. Justice White delivered the opinion of the court: The lands granted to the plaintiff in error to aid in the construction of its line of railroad were swamp lands which had accrued to the state under the act of Congress of March 12, 1860. The granting act did not impose a gross-receipt tax or purport to make any contract with reference to a tax of that character, but provided, in § 2, in express terms, that the lands granted should be exempt. The proviso in question reads as follows: "None of the lands hereby granted shall be subject to taxation until the expiration of five years from the issuance of the patent by the state, unless previously sold or disposed of by said railroad company." Subsequently to the passage of this act the legislature of Minnesota, in 1873, enacted a law allowing railroad corporations which accepted the provisions thereof, to discharge the tax on all their property, real and personal, by the payment of a gross-receipt tax, with the condition, however, that the land which had been given by the state to aid in the building of the railroad should "be subject to taxation as soon as sold, leased, or contracted to be sold or leased." By this law the railroad property and granted lands of the company were, as the result of the payment of the gross-receipt tax, to be "forever exempt from all taxation and from all assessment." This law became operative 202 On If the case rested wholly upon the provisions in the act granting an exemption for a stated period, the issue for decision would be whether an express contract of exemption could lawfully have been made in view of the clauses of the Constitution of the state of Minnesota requiring equality and uniformity, and empowering the legislature to exempt only in certain specified cases. this question there would be no room for the assertion that prior decisions of the supreme court of the state of Minnesota relating to the validity of acts imposing gross-receipt taxes had recognized the power to make such contract, since such decisions of that court, whatever be the doctrine which they announced as to gross-receipt taxes, have uniformly and consistently denied the authority to grant an exemption. But the controversy which this case presents does not rest on the rights asserted to have been conferred by the exemption contained in the granting act, since the plaintiff in error accepted the provisions of the law of 1873, and has from the time of such acceptance paid the gross-receipt tax therein provided. Although it be that the law imposing the gross-receipt tax, and which was accepted by the corporation, did not give rise to an irrevocable contract protected from impairment by the contract clause of the Constitution of the United States, since the right to repeal, alter, or amend was reserved, the question yet remains whether the act of the legislature of Minnesota, which was submitted to a vote of the people, and which is here relied upon as manifesting the exercise of the reserved power to repeal, alter, or amend, has such effect. The repealing or amending act relied upon in this case is the same one which was involved in the case of Stearns v. Minnesota ex rel. Marr, just decided, and its text was fully stated in that case. Here, as there, to treat the act in question as a repeal, alteration, or *amend-[305] ment of the contract would be to preserve all the obligations of the corporation in favor of the state, and to take away from the corporation the consideration on the part of the state upon which the duty of the corporation to pay the gross-receipt tax rested. For this reason, we conclude that the act which, it is 179 U. & asserted, repealed or amended the contract, Statement by Mr. Justice Brown: was void, because a mere arbitrary exercise *This was an action originally instituted[306] of power giving rise, if enforced, not only to in the district court of Hunt county, Texas, a denial of the equal protection of the laws, by Ignatz Popper and Edward Popper (dobut to a deprivation of property without due ing business under name of I. Popper & process of law. The reasons by which we Brother), to recover upon a certain promisare led to this conclusion were fully ex-sory note executed May 26, 1891, by John H. pressed in the concurring opinion of four members of the court in Stearns v. Minnesota, and need not be here repeated. Judgment reversed, and case remanded for further proceedings not inconsistent with this opinion. Mr. Chief Justice Fuller, Mr. Justice Brewer, Mr. Justice Shiras, and Mr. Justice Peckham concur in the result. JOHN M. AVERY et al., Plffs. in Err., v. IGNATZ POPPER et al. Cooke and Mary E. Cooke, his wife, to An interest in the note to the amount of To secure the payment of such note John H. Cooke and wife, .on May 26, 1891, executed and delivered to King a chattel mortgage upon fifty cows, with their calves of that spring, which COWS were branded (See 8. C. Reporter's ed. 305-816.) "Cook" on the left side and "O K" on the left hip, the calves not being branded; also Error to state court-Federal question one bay-mare colt, one gray-horse colt and rights of purchaser on execution from Fed-one black-mule colt. This instrument was eral court. 1. The mere fact that the plaintiff in error was a purchaser at a marshal's sale of prop: erty sold under execution from a Federal court does not entitle him to a writ of error from the Supreme Court of the United States to a state court to bring up questions under state law with respect to the validity and priority of a chattel mortgage covering the same property or a part thereof, where there is no question as to the validity of the judgment or the regularity of the proceedings in the Federal court, and the question is as to the validity of a chattel mortgage upon property sold under the execution, as affected by the sufficient identification of the property. 2 The question whether a right of selection recognized as between mortgagor and mortgagee is also applicable as between a purchaser upon execution and the mortgagee is not a Federal question, even when a purchase has been made under an execution from a Federal court, if no discrimination be made against executions from those courts. [No. 72.] legally filed and registered as a chattel mort- On June 14, 1893, the marshal of the *On the following day, June 29, 1893, I.[307] Popper & Brother brought this action in the district court of Hunt county against John H. and Mary E. Cooke, W. W. Avery, and John M. Avery, to recover of the Cookes the amount of plaintiffs' interest in the note Submitted November 7, 1900. Decided De- ($775), and to foreclose against all the de fendants their mortgage upon the property and within a short time thereafter sold and At the time the mortgage was executed to secure the note, there were many more animals of the same description mingled with those upon which the mortgage was given; but the state court found the evidence sufficient to show that, just prior to the execution of the mortgage, the animals embraced in it were pointed out to Mr. Neyland, who represented King in taking the mortgage security and drafting the mortgage. But the animals covered by the mortgage were not separated from the others of the same description with which they were mingled, nor was there any such separation when the execution in favor of Neyland was levied upon the property in controversy. The court further found that the fifty head of cows described in the mortgage, as well as all others of like description mingled with them, were the separate property of Mary E. Cooke at the time the mortgage was executed, and continued to be her separate property until disposed of by Avery;, that the fifty calves were born during the marriage of Cooke and wife, after the cows became the separate property of Mrs. Cooke, and were therefore, at the time the mortgage was given and the execution in favor of Avery levied, the community property of John H. and Mary E. Cooke. Also, that the horses and mule involved in this suit were the offspring of the [308]separate property of Mary E. Cooke during her marriage with John H. Cooke, and were likewise the community property of Cooke and his wife at the time the mortgage was given and the execution levied. The case appears to have been first tried in 1894, and judgment rendered against the plaintiffs in error; but on appeal by them the mortgage was held to be invalid, the judgment reversed, and the case remanded by the court of civil appeals for a new trial. Avery v. Popper, 34 S. W. 325. The case was again tried in October, 1897, and resulted in a judgment in favor of Popper & Brother against John H. Cooke in the sum of $1,637 and in favor of Neyland, whose suit was consolidated with the other, in the sum of $1,974. The mortgage was foreclosed on the fifty cows, one mare, one horse and one mule, and a further judgment rendered against John M. Avery and the sureties upon his replevin bond in the sum of $850, the value of the property disposed of by him. The court further found that as to the fifty calves the mortgage was invalid, and a foreclosure of the mortgage to that extent was and a judgment ordered in favor of Popper & Brother and Neyland against the plaintiff in error, John M. Avery, and his sureties in the sum of $850, interest and costs. 92 Tex. 337, 48 S. W. 572, 49 S. W. 219, 50 S. W. 122. The court found that "no right attached under the mortgage to specific animals, nor did it give a lien upon an undivided interest in the herd. The power was given to sell certain cows and their calves, which could only be done by selecting them from the herd, and it being necessary to the execution of the express authority to sell, the law will imply the authority to take the *fifty [309) cows and calves from the larger number. Oxsheer v. Watt, 91 Tex. 124, 41 S. W. 466. The chattel mortgage was valid between the parties to it. "Upon default in payment, King or the holders of the note had the right to select from John H. and M. E. Cooke's stock of cattle and sell fifty cows and calves corresponding to the description in the mortgage. If the right had been exercised while the calves of the spring of 1891 were following their mothers, the selection of the cow would have identified the calf. But having failed to exercise the right until in the course of nature the dam and the young would sepa rate, it has become impossible to identify the calves, and all claim upon them has failed, before Avery converted the stock." Whereupon Avery and his sureties sued out a writ of error from this court. Mr. John M. Avery submitted the cause for plaintiffs in error: The Supreme Court of the United States has jurisdiction of this case. Clements v. Berry, 11 How. 398, 13 L. ed. 745; Buck v. Colbath, 3 Wall. 334, 18 L. ed. 257; Stanley v. Schwalby, 162 U. S. 255, 40 L. ed. 960, 16 Sup. Ct. Rep. 754; Etheridge v. Sperry, 139 U. S. 266, 35 L. ed. 171, 11 Sup. Ct. Rep. 565; Pittsburgh, C. C. & St. L. R. Co. v. Long Island Loan & T. Co. 172 U. S. 493, 43 L. ed. 528, 19 Sup. Ct. Rep. 238; Bock v. Perkins, 139 U. S. 628, 35 L ed. 314, 11 Sup. Ct. Rep. 677; Collier v. Stanbrough, 6 How. 14, 12 L. ed. 324; Hurst v. Cobb, 61 Fed. Rep. 1. Mr. Benjamin F. Looney submitted the cause for defendants in error: There is no question raised in this case for the jurisdiction of this court, as the final judgment of the supreme court of the state of Texas did not draw in question the validity The case was again carried to the court of der, the United States, and there was no deof a statute of, or an authority exercised uncivil appeals by John M. Avery and his surecision by said court against any title, right, ties, which affirmed the judgment against denied. Cooke and wife, but increased the judgment privilege, or immunity set up or claimed by against John M. Avery and his sureties in plaintiffs in error under any statute or authe sum of $534, the value of seventeen two-thority under the United States. year old steers and thirty-two two-year old Day v. Gallup, 2 Wall. 97, sub nom. Derheifers. 45 S. W. 951. The court found the by v. Gallup, 17 L. ed. 855; Buck v. Colbath, district court to have been in error in hold- 3 Wall. 334, 18 L. ed. 257; Norton v. Brownsing that the mortgage executed by the hus-ville Taxing Dist. Comrs. 129 U. S. 506, 32 band and wife was not a lien upon all the L. ed. 785, 9 Sup. Ct. Rep. 331. property embraced in it, whether separate This court will respect the law of the or community. On appeal to the supreme state of Texas as decisive in respect to any court the judgments of the court of civil ap- case arising with reference to chattel mortpeals and of the district court were reversed, gages, as those questions are not of general |