Dissenting Opinion: Bradley, Harlan, Lamar, Brown, JJ.

gress as is the power to regulate commerce with foreign nations and with the Indian tribes. It is given in the same clause and couched in the same phraseology; but if it may be exercised by the States, it might as well be expunged from the Constitution. We think it a power not only granted to be exercised, but that it is of first importance, being one of the principal moving causes of the adoption of the Constitution. The disputes between the different States in reference to interstate facilities of intercourse, and the discriminations adopted to favor each its own maritime cities, produced a state of things almost intolerable to be borne. But, passing this by, the decisions of this court for a number of years past have settled the principle that taxation (which is a mode of regulation) of interstate commerce, or of the revenues derived therefrom, (which is the same thing,) is contrary to the Constitution. Going no further back than Pickard v. Pullman's Southern Car Co., 117 U. S. 34, we find that principle laid down. There a privilege tax was imposed upon Pullman's Palace Car Company, by general legislation it is true, but applied to the company, of $50 per annum on every sleeping car going through the State. It was well known, and appeared by the record, that every sleeping car going through the State carried passengers from Ohio and other northern States, to Alabama, and vice versa, and we held that Tennessee had no right to tax those cars. It was the same thing as if they had taxed the amount derived from the passengers in the cars. So also in the case of Leloup v. The Port of Mobile, 127 U. S. 640, we held that the receipts derived by the telegraph company from messages sent from one State to another could not be taxed. So in the case of the Norfolk and Western Railroad v. Pennsylvania, 136 U. S. 114, where the railroad was a link in a through line by which passengers and freight were carried into other States, the company was held to be engaged in the business of interstate commerce, and could not be taxed for the privilege of keeping an office in the State. And in the case of Crutcher v. Kentucky, 141 U. S. 47, we held that the taxation of an express company for doing an express business between different States was unconstitutional and void. And

Dissenting Opinion: Bradley, Harlan, Lamar, Brown, JJ.

in the case of Philadelphia &c. Steamship Co. v. Pennsylva nia, 122 U. S. 326, we held that a tax upon the gross receipts of the company was void because they were derived from interstate and foreign commerce. A great many other cases might be referred to, showing that in the decisions and opinions of this court this kind of taxation is unconstitutional and void.

We think that the present decision is a departure from the line of these decisions. The tax, it is true, is called a tax on a franchise. It is so called, but what is it in fact? It is a tax on the receipts of the company derived from international transportation.

This court and some of the state courts have gone a great length in sustaining various forms of taxes upon corporations. The train of reasoning upon which it is founded may be questionable. A corporation, according to this class of decisions, may be taxed several times over. It may be taxed for its charter; for its franchises; for the privilege of carrying on its business; it may be taxed on its capital; and it may be taxed on its property. Each of these taxations may be carried to the full amount of the property of the company. I do not know that jealousy of corporate institutions could be carried much further. This court held that the taxation of the capital stock of the Western Union Telegraph Company in Massachusetts, graduated according to the mileage of lines in that State compared with the lines in all the States, was nothing but a taxation upon the property of the company; yet it was in terms a tax upon its capital stock, and might as well have been a tax upon its gross receipts. By the present decision it is held that taxation may be imposed upon the gross receipts of the company for the exercise of its franchise within the State, if graduated according to the number of miles that the road runs in the State. Then it comes to this: A State may tax a railroad company upon its gross receipts in proportion to the number of miles run within the State, as a tax on its property; and may also lay a tax upon these same gross receipts, in proportion to the same number of miles, for the privilege of exercising its franchise in the State! I do not know what else it may

Statement of the Case.

not tax the gross receipts for. If the interstate commerce of the country is not, or will not be, handicapped by this course of decision, I do not understand the ordinary principles which govern human conduct.

We dissent from the opinion of the court.

MARTIN v. GRAY.

APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF KENTUCKY.

No. 1065. Submitted December 7, 1891.- Decided December 21, 1891.

When a person, whose equity of redemption in mortgaged real estate is foreclosed, rests inactive for eleven years, with full knowledge of the foreclosure, and of the purchaser's rights claimed under it, and of his own rights, and with nothing to hinder the assertion of the latter, and then files a bill in equity to have the foreclosure proceedings declared void for want of proper service of process upon him, this court will at least construe the language of the returns so as to sustain the legality of the service, if that can reasonably be done, even if it should not regard it as too late to set up such a claim.

THE Court stated the case as follows:

On September 29, 1890, appellant filed his bill in the Circuit Court of the United States for the District of Kentucky, the object of which was to set aside a commissioner's deed to defendant, executed years before, in pursuance of certain proceedings in the District Court of the United States for that district. The facts as alleged were these:

Prior to May 2, 1879, the plaintiff, his mother, sister and brother, were the owners, each, of an undivided one-fourth of a lot in the city of Louisville, which lot was subject to a lease from the four owners to Thomas Slevin, who, as tenant, had built thereon houses of great value. On January 9, 1865, plaintiff had given to Thomas Slevin his note for two thousand dollars, payable in two years, and had secured the same by a mortgage of his undivided one-fourth of said property. Interest thereon was paid regularly until January 9, 1869, by the

Statement of the Case.

application of a part of the rents coming to plaintiff under the lease, but after that date Slevin failed and refused to so apply the rents, but claimed to set them off against goods sold to plaintiff. On February 21, 1877, Slevin was adjudged a bankrupt in proceedings in the United States District Court, and Stephen E. Jones was elected his assignee. On February 5, 1878, Jones, as assignee, commenced a suit in the same court to foreclose the mortgage, in which suit, besides plaintiff and his wife, the other joint owners were made parties defendant. In that suit, a decree of foreclosure was entered on May 22, 1879, and on August 11, 1879, the property was sold by R. H. Crittenden as special commissioner, and the sale having been confirmed on September 30, 1879, a deed was made to the purchaser, the present defendant, who thereupon took possession and has ever since collected the rents and profits.

In respect to the service of process on plaintiff, the bill alleged as follows:

"Your orator further says that he never appeared or answered in said cause, and no one appeared for him, as by the orders and record therein, still remaining in the District Court aforesaid, fully appears, nor was there any service of the subpœna upon him otherwise than that the following return appears upon the subpoena issued in said cause and which is on file with the papers thereof:

"J. C. Hays, S. H. C., is hereby appointed special bailiff to execute the within subpoena on J. S. Martin and Mary A. Martin, February 13, 1878.

"R. H. CRITTENDEN,

"U. S. Marshal.

"Executed the within spa. on J. S. Martin and Mary A. Martin by delivering a copy to each in person, February 14,

1878.

"R. H. CRITTenden,

"U. S. Marshal.

"J. C.. HAYS,

"S. H. C., Special Bailiff

Opinion of the Court.

"And that there was no such service also appears from the record and papers in said cause still remaining therein; yet, although your orator never appeared or answered in the cause and was never subpoenaed to answer therein, the complainant in said cause," etc.

Upon these facts the bill prayed for a decree setting aside the commissioner's deed, and for an accounting as to the rents and profits received by the defendant. A demurrer thereto was sustained, and the plaintiff electing to stand by the bill, a final decree was entered dismissing it. From this decree plaintiff appealed to this court.

Mr Lewis N. Dembitz for appellant.

Mr. B. F. Buckner and Mr. James S. Pirtle for appellee.

MR. JUSTICE BREWER, after stating the case, delivered the opinion of the court.

The contention of plaintiff is that the return on the subpoena is wholly worthless, and shows no service; and that the decree and decretal sale, based on such a return alone, are null and void. The following are the two rules in equity which regulate the manner of service:

"Rule XIII.

"The service of all subpoenas shall be by a delivery of a copy thereof by the officer serving the same to the defendant personally, or by leaving a copy thereof at the dwelling-house or usual place of abode of each defendant, with some adult person who is a member or resident in the family.

"Rule XV.

"The service of all process, mesne and final, shall be by the marshal of the district, or his deputy, or by some other person specially appointed by the court for that purpose, and not otherwise. In the latter case, the person serving the process shall make affidavit thereof."

It is insisted that the service in this case was not made by the marshal, or his deputy, but by J. C. Hays, who was not a