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Opinion of the Court.

ceedings, in whatever court pending, stayed until the question of his discharge was settled, subject to the condition that there was no unreasonable delay in endeavoring to obtain the discharge, and to the further condition that the court in which the action was pending, with leave of the bankruptcy court, could proceed for the purpose simply of ascertaining the amount of the debt, so that it could be proved in bankruptcy. If the bankrupt failed, in a case of that kind, to make his application for a stay of proceedings, the jurisdiction to proceed to final judgment against him, whether the action was pending in a state or in a federal court, was not impaired by, section 5106. Eyster v. Gaff, 91 U. $. 521; Davis v. Friedlander, 104 U. S. 570, 575; Hill v. Harding, 107 U. S. 631, 634; Dimock v. Revere Copper Co., 117 U. S. 559, 564; Boynton v. Ball, 121 U. S. 457, 466; In the matter of Schepeler & Co., 4 Ben. 68.

The present case falls distinctly under section 5105 as amended by the act of June 22, 1874. When Scott proved his debt in the bankruptcy court, he waived his right, pending the question of Ellery's discharge in the bankruptcy court, to take a deficiency decree against him in the court in Iowa ; and the discharge having been granted, the right to such a decree was lost altogether. The statute is susceptible of no other construction. It is of no consequence that Scott was without knowledge at the time the deficiency decree was rendered that Ellery had been discharged. By proving his debt in the bankruptcy court he became a party to the proceedings in bankruptcy, and surrendered the right to proceed in the Iowa suit until the question of Ellery's discharge was determined, and he was bound to know, when he took the deficiency decree, whether or not the bankrupt had in fact been discharged. After proving his debt in the bankruptcy court, he could not proceed in the Iowa suit unless Ellery was refused a discharge, or unless the proceedings in bankruptcy were determined without a discharge. And such would have been, no doubt, the view of the learned judge who rendered the deficiency decree, if he had been informed at the time that Scott had proved his debt or claim in the bank

Opinion of the Court.

ruptcy court, and that a discharge had been granted to the bankrupt.

The appellant lays some stress upon the fact that when the decree of foreclosure and sale was entered the cause was continued until the execution of that decree, and until the further order of the court. If by this is meant that Ellery was to be deemed as in court when the deficiency decree was rendered, and made no objection thereto, it is sufficient to say that the statute protected him against any personal decree in the court of Iowa, after Scott proved his debt in the bankruptcy court, and pending the question of his discharge, and that, after he was discharged, the right of Scott to a deficiency decree against him was gone. He was not bound, after Scott proved his debt in bankruptcy, to give attention to the suit in Iowa, or to assume that any steps would be taken in the Iowa court that were inconsistent with the statute. "If Scott intended, by what he did, to assert his right to a deficiency decree, whether Ellery was discharged or not in bankruptcy, he should have instituted a new suit, or given due personal notice of his purpose to apply for such a decree in the foreclosure suit; in either of which cases Ellery could have pleaded his discharge in bankruptcy. Neither of these courses was pursued, but a deficiency decree was obtained in violation of the statute, and without notice to Ellery. It was obtained under circumstances that amounted to a fraud in law, and the decree below, vacating it and enjoining the appellant from enforcing it, was clearly right.

Decree affirmed.

VOL. CXLII-25

Statement of the Case.

CHARLOTTE, COLUMBIA AND AUGUSTA RAIL

ROAD COMPANY v. GIBBES.

ERROR TO THE SUPREME COURT OF THE

STATE OF SOUTH

CAROLINA.

No. 41. Argued October 20, 1891. - - Decided January 4, 1892.

The provisions in c. 40 of the General Statutes of South Carolina of 1882,

requiring the salaries and expenses of the state railroad commission to be borne by the several corporations owning or operating railroads within the State, are not in conflict with the provision in the Fourteenth Amendment to the Constitution that a State shall not “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." It is again decided that private corporations are persons within the meaning

of that Amendment. Requiring the burden of a public service by a corporation, in consequence

of its existence and of the exercise of privileges obtained at its request, to be borne by it, is neither denying to it the equal protection of the

laws, nor making any unjust discrimination against it. The legislative and constitutional provision of the State of South Carolina

that taxation of property shall be equal and uniform and in proportion to its value, is not violated by exacting a contribution according to their gross income of the several railroads, in proportion to the number of miles of railroad operated within the State, in order to meet the special service required of the state railroad commission.

The court stated the case as follows:

The plaintiff below, and in error, The Charlotte, Columbia and Augusta Railroad Company, is a corporation existing under the laws of the States of North Carolina, South Carolina and Georgia. Its road and other property are situated in the county of Richmond, Georgia, and in the counties of Aiken, Edgefield, Lexington, Richland, Fairfield, Chester and York, South Carolina, and in the county of Mecklenberg, North Carolina.

By the legislature of South Carolina a general railroad law was passed in 1878, prescribing numerous provisions for the regulation and government of railroads in that State. That law, as amended in some particulars, was incorporated as

Statement of the Case.

chapter 40 in the General Statutes of the State, in 1882. It provides for the appointment by the governor of three railroad commissioners, charged to see to the enforcement of its various provisions, each of whom is to receive a salary of two thousand dollars a year, to be paid out of the treasury of the State in the manner provided by law for the salaries of other state officers; and also that, “the entire expenses of the railroad commission, including all salaries and expenses of every kind, shall be borne by the several corporations owning or operating railroads within this State according to their gross income proportioned to the number of miles in the State, to be proportioned by the comptroller general of the State, who on or before the first day of October in each and every year shall assess upon each and every corporation its just proportion of such expenses in proportion to its said gross income for the current year ending on the 30th day of June next preceding that on which the said assessment is made; and the said assessment shall be charged up against the said corporations, respectively, under the order and direction of the comptroller general, and shall be collected by the several county treasurers in the manner provided by law for the collection of taxes from such corporations, and shall be paid by the said county treasurers, as collected, into the treasury of the State in like manner as other taxes collected by them for the State.”

For the fiscal year of 1883 the plaintiff was charged on the books of the county treasurer of Richland County, in South Carolina, with the sum of $987.75, being the amount assessed as a tax against that company as its entire proportion of the salaries and expenses of the railroad commissioners of the State, and being its proportion for all the counties.

The plaintiff, deeming the same to be unjust and illegal, paid the same under protest, and instituted the present suit, under a law of the State, to obtain a judicial determination that it was wrongfully and illegally collected, and the certificate of the court that it should be refunded.

In its complaint it alleges that the tax is illegal because assessed in proportion to the gross income of the plaintiff instead of being in proportion to the value of its property;

Statement of the Case.

and because its imposition is in conflict with the constitution of the State in several particulars mentioned; and also in violation of the Fourteenth Amendment of the Constitution of the United States, by which each State is forbidden to deprive any person of property without due process of law, or to deny to any person within its jurisdiction the equal protection of the laws, in this, that the act and amendments authorizing it require railroad companies of the State, exclusively, to pay the salaries and expenses of three state officers, no other persons in the State being required to contribute any portion of the same, and require them to say a tax of a nature, character and amount not required of other corporations and persons within the jurisdiction of the State.

The attorney general of the State appeared for the treasurer of Richland County, and admitted that that officer, under the order and direction of the comptroller general of the State, had collected of the plaintiff the sum claimed, $987.75, as the just proportion of the entire expenses of the railroad commissioners of the State, assessed upon that corporation by hiin, and also the sum of $24.70, being the amount of costs and penalties charged against it by his direction, and that the same were paid under protest, denying, however, that the laws under which the amount was assessed against the plaintiff and collected were unconstitutional and void, or that the same was illegally and wrongfully collected.

The constitution of South Carolina declares that “all property subject to taxation shall be taxed in proportion to its value," and that its legislature “shall provide by law for a uniform and equal rate of assessment and taxation, and shall prescribe such regulations as shall secure a just valuation for taxation of all property," with certain specified exceptions not affecting the questions presented.

The case was heard by the Court of Common Pleas for Richland County, and, by its decree, the validity of the assessment and tax was sustained and the complaint dismissed. On appeal to the Supreme Court of the State the judgment was affirmed, and, to review that judgment, the case is brought here on writ of error.

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