loss or injury caused by the use of dangerous instruments should rest upon the railroad company, which employs the instruments and creates the peril for its own profit, rather than upon the owner of the property, who has no control over or interest in those instruments. The very statute, now in question, which makes the railroad company liable in damages for property so destroyed, gives it, for its protection against such damages, an insurable interest in the property in danger of destruction, and the right to obtain insurance thereon in its own behalf; and it may obtain insurance upon all such property generally, without specifying any particular property. Eastern R. Co. v. Relief Fire Ins. Co., 98 Mass. 420. The statute is not a penal one, imposing punishment | for a violation of law, but it is purely remedial, making the party, doing a lawful act for its own profit, liable in damages to the innocent party injured thereby, and giving to that party the whole damages, measured by the injury suffered. Railroad Co. v. Richardson, 91 U. S. 454, 472; Huntington v. Attrill, 146 U. S. 657, 13 Sup. Ct. 224. The statute is a constitutional and valid exercise of the legislative power of the state, and applies to all railroad corporations alike. Consequently, it neither violates any contract between the state and the railroad company, nor deprives the company of its property without due process of law, nor yet denies to It the equal protection of the laws. Judgment affirmed. (165 U. S. 144) HUSSMAN v. DURHAM. FEDERAL QUESTION-TAX TITLES-VALIDITY-LAND WARRANTS-ASSIGNMENT-CANCELLATION 1. A decision of the supreme court of a state denying the validity of an equitable title apparently conveyed by proceedings in the United States land office, and of tax titles based thereon, involves a federal question. 2. Under the tax law of Iowa, there is no privity between one holding a tax title to land and the holder of the fee. 3. A conveyance by the United States of the legal title to land does not operate by relation back of the time when the consideration for the land was paid. 4. A certificate of location was issued in 1858, but nothing was in fact paid to the government for the land until 1888. During this period the land was sold for taxes assessed against it in the name of the locator. Held, that the title remained in the government until 1888, and therefore the land was not, prior to that time, subject to state taxation, and the tax deeds were void. 5. The fact that a finding of the secretary of the interior that an assignment of a land warrant, was a forgery, and his order canceling the warrant, were made without notice to the assignee, does not constitute a valid objection by a defendant not in privity with the assignee, but claiming under a sale of the land for taxes after the cancellation, where the assignee had accepted the adjudication of the secretary as binding, and the fact that the assignment was forged is admitted by defendant. In Error to the Supreme Court of the State of Iowa. * This case comes up on error to the supreme* court of the state of Iowa. The facts are these: On May 19, 1858, Robert Craig located bounty land warrant No. 27,911, issued to William Long under the act of congress of March 3, 1855 (10 Stat. 701), upon the land in controversy, and obtained from the proper land officer a certificate of location. This certificate was recorded in the office of the recorder of Carroll county, the county in which the land is situated. No patent was issued thereon. On February 1, 1864, the secretary of the interior canceled the land warrant, under authority of an act of congress of date June 23, 1860 (12 Stat. 90). This act provided that whenever it should appear that any land warrant was lost or destroyed, whether the same had been sold or assigned by the warrantee or not, the secretary of the interior should cause a new warrant to be issued, which new warrant should have all the force and effect of the original, and upon such action the original warrant was to be deemed and held to be null and void, and any assignment thereof fraudulent; and, further, that "no patent shall ever issue for any land located therewith, unless such presumption of fraud in the assignment be removed by due proof that the same was executed by the warrantee in good faith and for a valuable, consideration." The second section authorized the secretary to prescribe such rules and regulations as might be appropriate for carrying the act into effect. It was alleged in the petition filed in this case that, the assignment on the warrant purporting to be that of Long, the warrantee, was a forgery, and this allegation was admitted by the defendant. The action of the secretary was taken without, so far as appears, any notice to Robert Craig. Nothing was done, either in the local land office or in the land department at Washington, to formally cancel the certificate of location. Up to the year 1886 the records of the land department showed on their face a full, equitable title passing to Robert Craig by virtue of his certificate of location, and payment therefor in a land warrant. During these years the land was subjected to taxation by the officers of Carroll county, Iowa, and was sold for nonpay. ment of taxes; and the titles under such tax sales passed to Bernhard Hussman, defendant below. In 1886 William H. Durham, plaintiff below, having obtained conveyances from Craig, applied to the land department for leave to purchase the land upon payment of the regular price. This application was granted under authority of rule 41 of the department of the interior, published on Jrly 20, 1875, which reads as follows: "When a valid entry is withheld from patent on account of the objectionable character of the warrant located thereon, the par ties in interest may procure the issuance of a patent by filing in the office for the district in which the land is situated an acceptable substitute for the said warrant. The substitution must be made in the name of the original locator, and may consist of a warrant, cash or any kind of scrip legally applicable to the class of lands embraced in the entry." The money, $150, was paid by Durham in 1888, and a patent issued, of date October 3, 1889, to Robert Craig, his heirs and assigns. It recited a payment by "F. M. Hunter, trustee for Robert Craig," and was delivered to said trustee, to be held until the rights of these parties could be judicially determined. Thereupon Durham commenced this suit in the district court of Carroll county, Iowa, to quiet his title as against the defendant, holding the tax titles. The district court entered a decree in his favor, which was affirmed by the supreme court. 88 Iowa, 29, 55 N. W. 11. C. C. Cole, for plaintiff in error. C. C. Nourse, for defendant in error. Mr. Justice BREWER, after stating the facts in the foregoing language, delivered the opinion of the court. A motion to dismiss was submitted by the defendant in error, but as the supreme court of the state held that the equitable title apparently conveyed by the proceedings in the United States land office in 1858 was of no effect, and the tax titles based thereon of no validity, it is apparent that a right claimed under the authority of the United States was denied, and therefore this court has jurisdiction. On the merits of the case, we remark that while it is undoubtedly true that when the full equitable title has passed from the government, even prior to the issue of a patent conveying the legal title, the land is subject to state taxation (Carroll v. Safford, 3 How. 441; Witherspoon v. Duncan, 4 Wall. 210), yet until such equitable title has passed, and while the land is still subject to the contol of the government, it is beyond the reach of the state's power to tax (Railway Co. v. Prescott, 16 Wall. 603; Railway Co. v. McShane, 22 Wall. 444; Tucker v. Ferguson, 22 Wall. 527, 572; Colorado Co. v. Commissioners, 95 U. S. 259). Therefore the validity of the tax titles held by plaintiff in error depends upon the question whether the equitable title to the land had passed from the government to Craig. We remark, in the second place, that, under such a tax law as exists in Iowa, there is no privity between the holder of the fee and one who claims a tax title upon the land. The latter title is not derived from, but in antagonism to, the former. The holder of the latter is not a privy in estate with the holder of the former. Neither owes any duty to the other, nor is estopped from making any claim as against the other. Hef ner v. Insurance Co., 123 U. S. 747, 751, 8 Sup. Ct. 337; Turner v. Smith, 14 Wall. 553; Crum v. Cotting, 22 Iowa, 441; Burroughs, Tax'n, 346. Neither can it be said that on the issue of a patent the title by relation always dates of the time when the certificate of location was issued. A title by relation extends no further backward than to the inception of the equitable right. If no equitable right passed by the surrender of the land warrant and the certificate of location in 1858, but only by the payment of the money in 1888, the legal title created by the issue of the patent has no relation back of this later day. In other words, the United States does not part with its rights until it has actually received payment, and if, by mistake, inadvertence, or fraud, a certificate of location (which is equivalent to a receipt) is issued when in fact no consideration has been received, no equitable title is passed thereby; and a conveyance of the legal title does not operate by relation back of the time when the actual consideration is paid. These views have been recognized in Iowa, as elsewhere. Thus, in Reynolds v. Plymouth Co., 55 Iowa, 90, 7 N. W. 468, it appeared that certain forged and counterfeit agricultural college scrip was located upon a tract of land, and that after the issue of the certificate of location, and before any patent, state taxes were assessed and levied thereon. Thereafter the forgery was discovered, the locator substituted genuine scrip or money, and a patent was issued. The court held that the taxes thus assessed and levied during the interval between the original illegal entry and location and the subsequent substitution of genuine scrip or money were invalid, saying: "In order to protect a title, or to attain the ends of justice, the courts will, under the doctrine of relation, which is a fiction of law, hold that a title began at the date of an entry or location upon the public lands. But this doctrine cannot be invoked to burden the holder of a title, and require him, in violation of justice, to pay taxes when he held neither the equity nor title of the lands." A similar doctrine was announced in Calder v., Keegan, 30 Wis. 126. See, also, Gibson v. Chouteau, 13 Wall. 92,*in which this court, on page 101, said: "The error of the learned court consisted in overlooking the fact that the doctrine of relation is a fiction of law adopted by the courts solely for the purposes of justice, and is only applied for the security and protection of persons who stand in some privity with the party that initiated proceedings for the land, and acquired the equitable claim or right to the title. The defendants in this case were strangers to that party and to his equitable claim, or 'equitable title,' as it is termed, not connecting themselves with it by any valid transfer from the original or any subsequent holder." *150 It is, however, said by counsel for plaintiff in error that, as it does not appear that any notice was given to Craig, the finding of the secretary of the interior that the assignment was a forgery, and the order directing the cancellation, cannot be regarded as binding upon Craig, or affecting the rights vested in him by the surrender of the land warrant and the issue of the location certificate. In other words, as in this respect the secretary of the interior is a tribunal with limited and special jurisdiction, proof of notice to the parties interested is essential to sustain the validity of any adjudication. Not questioning the proposition of law as thus stated, there are two sufficient answers to its applicability to the present case: First, as Craig and those claiming under him thereafter dealt with the government upon the assumption that the adjudication was binding, one who is not in privity with them cannot challenge their acceptance of that adjudication; and, secondly, on the record the parties hereto have admitted that the assignment of the warrant by Long to Craig was a forgery. Craig therefore had no title to the warrant, and this formal surrender by him of the instrument was an invalid act, neither defeating the title of Long, nor releasing the government from its promise to convey to Long or his genuine assignee the specified number of acres. * The case therefore stands in this way: Confessedly, though a formal certificate of location was issued in 1858, there was then in fact no payment for the land, and the government received nothing until 1888. During these intervening years, whatever might have appeared upon the face of the record, the legal and the equitable title both remained in the government. The land was therefore not subject to state taxation. Tax sales and tax deeds issued during that time were void. The defendant took nothing by such deeds. No estoppel can be invoked against the plaintiff. title dates from the time of payment in 1888. The defendant does not hold under him, and has no tax title arising subsequently thereto. His With respect to the suggestion of counsel that it is a hardship that one who has changed wild land into a farm, and greatly improved it, should, after the lapse of many years, be deprived of the benefit of those improvements by reason of an undisclosed defect in the record title, it is sufficient to say that there is nothing in this record to indicate that the defendant ever made any improvements, or expended a dollar otherwise than in paying for the tax title. We cannot, of course, take the intimation of counsel in the brief as evidence of a fact not appearing on the record. Further, so far as the money paid for taxes is concerned, it is familiar law that a purchaser of a tax title takes all the chances. There is no warranty on the part of the state. Beyond this, the statutes of Iowa contemplate a return of taxes when it is disclosed that the land was not subject to taxation. 1 McClain's Rev. St. 1888, § 1387, p. 353. We see no error in the decision of the supreme court of Iowa, and it is therefore affirmed. (165 U. S. 150) GULF, C. & S. F. RY. CO. v. ELLIS. (January 18, 1897.) No. 133. CONSTITUTIONAL LAW-CLAIMS AGAINST RAILROAD COMPANIES-RECOVERY OF ATTORNEY'S FEES. Act Tex. April 5, 1889, providing that railroad companies failing to pay claims less than $50 for labor, damages, overcharges on freight, or for stock killed, within 30 days after presentation thereof, shall be liable for an attorney's fee not exceeding $10, is void as depriving such companies of the equal protection of the law. 26 S. W. 985, 87 Tex. 19, reversed. Mr. Chief Justice Fuller, Mr. Justice Gray, and Mr. Justice White, dissenting. In Error to the Supreme Court of the State, of Texas. On April 5, 1889, the legislature of the state of Texas passed this act: "Section 1. Be it enacted by the legislature of the state of Texas, that after the time that this act shall take effect, any person in this state having a valid bona fide claim for personal services rendered or labor done, or for damages, or for overcharges on freight, or claims for stock killed or injured by the train of any railway company, provided that such claim for stock killed or injured shall be presented to the agent of the company nearest to the point where such stock was killed or injured, against any railway corporation operating a railroad in this state, and the amount of such claim does not exceed $50, may present the same, verified by his affidavit, for payment to such corporation by filing it with any station agent of such corporation in any county where suit may be instituted for the same, and if, at the expiration of thirty days after such presentation, such claim has not been paid or satisfied, he may immediately institute suit thereon in the proper court; and if he shall finally establish his claim, and obtain judgment for the full amount thereof, as presented for payment to such corporation in such court, or any court to which the suit may have been appealed, he shall be entitled to recover the amount of such claim and all costs of suit, and in addition thereto all reasonable attorney's fees, provided he has an attorney employed in his case, not to exceed $10, to be assessed and awarded by the court or jury trying the issue." Supp. Sayles' Rev. Civ. St. p. 768, art. 4266a. On October 9, 1890, defendant in error commenced this action before a justice of the peace, to recover $50 for a colt killed by the railway company. The complaint alleged presentation and nonpayment, as required by the art. and demanded $10 attorney fee. The 2 company answered, admitting everything except the claim for the attorney fee. The case passed, after judgment in favor of the plaintiff for the amount claimed and an attorney fee of $10, through the district court and the court of civil appeals, to the supreme court of the state, by which, on May 10, 1894, the Judgment against the company was affirmed. 87 Tex. 19, 26 S. W. 985. To reverse such judgment the company sued out this writ of error. E. D. Kenna and J. W. Terry, for plaintiff in error. Mr. Justice BREWER, after stating the facts in the foregoing language, delivered the opinion of the court. The single question in this case is the constitutionality of the act allowing attorney fees. The contention is that it operates to deprive the railroad companies of property without due process of law, and denies to them the equal protection of the law, in that it singles them out of all citizens and corporations, and requires them to pay in certain cases attorney fees to the parties successfully suing them, while it gives to them no like or corresponding benefit. Only against railroad companies is such exaction made, and only in certain cases. We have not been favored with any argument or brief from the defendant in error. Doubtless he believed, and justly, that nothing could be added to the arguments so fully and strongly made in support of the constitutionality of this law in the respective opinions of the two highest courts of the state. The supreme court of the state considered this statute as a whole, and held it valid, and as such it is presented to us for consideration. Considered as such, it is simply a statute imposing a penalty upon railroad corporations for a failure to pay certain debts. No individuals are thus punished, and no other corporations. The act singles out a certain class of debtors, and punishes them when, for like delinquencies, it punishes no others. They are not treated as other debtors, or equally with other debtors. They cannot appeal to the courts, as other litigants, under like conditions, and with like protection. If litigation terminates adversely to them, they are muleted in the attorney's fees of the successful plaintiff; if it terminates in their favor, they recover no attorney's fees. It is no sufficient answer to say that they are punished only when adjudged to be in the wrong. They do not enter the courts upon equal terms. They must pay attorney's fees if wrong. They do not recover any if right; while their adversaries recover if right, and pay nothing if wrong. In the suits, therefore, to which they are parties, they are discriminated against, and are not treated as others. They do not stand equal before the law. They do not receive its equal protection. All this is -obvious from a mere inspection of the statute. It is true, the amount of the attorney's fee which may be charged is small, but, if the state has the power to thus mulct them in a small amount, it has equal power to doso in a larger sum. The matter of amount does not determine the question of right, and the party who has a legal right may insist upon it, if only a shilling be involved. As well said by Mr. Justice Bradley in Boyd v. U. S., 116 U. S. 616, 635, 6 Sup. Ct. 524, 535: "Illegitimate and unconstitutional practices get their first footing in that way, namely, by silent approaches and slight deviations from legal modes of procedure. This can only be obviated by adhering to the rule that constitutional provisions for the security of person and property should be liberally construed. A close and literal construction deprives them of half their efficacy, and leads to gradual depreciation of the right, as if it consisted more in sound than in substance. It is the duty of courts to be watchful for the constitutional rights of the citizens and against any stealthy encroachments thereon. Their motto should be obsta principiis." While good faith and a knowledge of existing conditions on the part of a legislature are to be presumed, yet to carry that presumption to the extent of always holding that there must be some undisclosed and unknown reason for subjecting certain individuals or corporations to hostile and discriminating legislation is to make the protecting clauses of the fourteenth amendment a mere rope of sand, in no manner restraining state action. It is well settled that corporations are persons within the provisions of the fourteenth amendment of the constitution of the United States. Santa Clara Co. v. Southern Pac. R. Co., 118 U. S. 394, 6 Sup. Ct. 1132; Pembina Consol. Silver Min., etc., Co. v. Pennsylvania, 125 U. S. 181, 189, 8 Sup. Ct. 737; Railway Co. v. Mackey, 127 U. S. 205, 8 Sup. Ct. 1161; Railway Co. v. Herrick, 127 U. S. 210, 8 Sup. Ct. 1176; Railway Co. v. Beckwith, 129 U. S. 26, 9 Sup. Ct. 207; Railroad Co. v. Gibbes, 142 U. S. 386, 12 Sup. Ct. 255; Road Co. v. Sandford, 164 U. S. 578, 17 Sup. Ct. 198. The rights and securities guarantied to persons by that instrument cannot be disregarded in respect to these artificial entities called "corporations" any more than they can be in respect to the individuals who are the equitable owners of the property belonging to such corporations. A state has no more pow er to deny to corporations the equal protec tion of the law than it has to individual citizens. But it is said that it is not within the scope of the fourteenth amendment to withhold from states the power of classification, and that, if the law deals alike with all of a certain class, it is not obnoxious to the charge of a denial of equal protection. While, as a general proposition, this is undeniably true (Hayes v. Missouri, 120 U. S. 68, 7 Sup. Ct. 350; Railway Co. v. Mackey, 127 *150 U. S. 205, 8 Sup. Ct. 1161; Walston v. Nevin, 128 U. S. 578, 9 Sup. Ct. 192; Bell's Gap R. Co. v. Pennsylvania, 134 U. S. 232, 10 Sup. Ct. 533; Express Co. v. Seibert, 142 U. S. 339, 12 Sup. Ct. 250; Giozza v. Tiernan, 148 U. S. 657, 13 Sup. Ct. 721; Railroad Co. v. Wright, 151 U. S. 470, 14 Sup. Ct. 396; Marchant v. Railroad Co., 153 U. S. 380, 14 Sup. Ct. 894; Railway Co. v. Mathews, 165 U. S. 1, 17 Sup. Ct. 243), yet it is equally true that such classification cannot be made arbitrarily. The state may not say that all white men shall be subjected to the payment of the attorney's fees of parties successfully suing them, and all black men not. It may not say that all men beyond a certain age shall be alone thus subjected, or all men possessed of a certain wealth. These are distinctions which do not furnish any proper basis for the attempted classification. That must always rest upon some difference which bears a reasonable and just relation to the act in respect to which the classification is proposed, and can never be made arbitrarily, and without any such basis. As well said by Black, J., in State v. Loomis, 115 Mo. 307, 314, 22 S. W. 350, 351, in which a statute making it a misdemeanor for any corporation engaged in manufacturing or mining to issue in payment of the wages of its employés any order, check, etc., payable otherwise than in lawful money of the United States, unless negotiable and redeemable at its face value in cash or in goods and supplies at the option of the holder at the store or other place of business of the corporation, was held class legislation and void: "Classification for legislative purposes must have some reasonable basis upon which to stand. It must be evident that differences which would serve for a classification for some purposes furnish no reason whatever for a classification for legislative purposes. The differences which will support class legislation must be such as, in the nature of things, furnish a reasonable basis for separate laws and regulations. Thus the legislature may fix the age at which persons shall be deemed competent to contract for themselves, but no one will claim that competency to contract can be made to depend upon stature or color of the hair. Such a classification for such a purpose would be arbitrary, and a piece of legislative despotism, and therefore not the law of the land." In Vanzant v. Waddel, 2 Yerg. 260, 270, Catron, J. (afterwards Mr. Justice Catron of this court), speaking for the supreme court of Tennessee, declared: "Every partial or private law, which directly proposes to destroy or affect individual rights, or does the same thing by affording remedies leading to similar consequences, is unconstitutional and void. Were this otherwise, odious individuals and corporate bodies would be governed by one rule, and the mass of the community, who made the law, by another." 17 S.C.-17 In Dibrell v. Morris' Heirs (Tenn.) 15 S. W. 87, 95, Baxter, Special Judge, reviewing at some length cases of classification, closes the review with these words: "We conclude upon a review of the cases referred to above that, whether a statute be public or private, general or special, in form, if it attempts to create distinctions and classifications between the citizens of this state, the basis of such classification must be natural, and not arbitrary." In Bell's Gap R. Co. v. Pennsylvania, 134 U. S. 232, 10 Sup. Ct. 533, the question was presented as to the power of the state to classify for purposes of taxation, and while it was conceded that a large discretion in these respects was vested in the various legislatures, the fact of a limit to such discretion was recognized, the court, by Mr. Justice Bradley, saying, on page 237, 134 U. S., and page 535, 10 Sup. Ct.: "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 classes, especially such as are of an unusual character, unknown to the practice of our governments, might be obnoxious to the constitutional prohibition." It is, of course, proper that every debtor should pay his debts, and there might be no impropriety in giving to every successful suitor attorney's fees. Such a provision would bear a reasonable relation to the delinquency of the debtor, and would certainly create no inequality of right or protection. But before a distinction can be made between debtors, and one be punished for a failure to pay his debts, while another is permitted to become in like manner delinquent without any punishment, there must be some difference in the obligation to pay, some reason why the duty of payment is more imperative in the one instance than in the other. If it be said that this penalty is cast only upon corporations, that to them special privileges are granted, and therefore upon them special burdens may be imposed, it is a sufficient answer to say that the penalty is not imposed upon all corporations. The burden does not go with the privilege. Only railroad of all corporations are selected to bear this penalty. The rule of equality is ignored. It may be said that certain corporations are chartered for charitable, educational, or religious purposes, and abundant reason for not visiting them with a penalty for the nonpayment of debts is found in the fact that their chartered privileges are not given for pecuniary profit. But the penalty is not imposed upon all business corporations, all chartered for the purpose of private gain. banking corporations, the manufacturing corporations, and others like them, are exempt. Further, the penalty is imposed, no The |