from the alleged discrimination made between retail dealers who are individuals and retail dealers who are companies, or wholesale dealers in such machines, where the tax required has not been paid by the manufacturing companies, as the taxes, to enjoin the collection of which this suit was instituted, have been paid by the complainant since the decree dismissing the bill was entered. This appears from the certificate of the comptroller general and the representation of the attorney general of the State, accompanied by copies of the writs of execution on which they were collected, with the receipts of the sheriff endorsed thereon. The taxes being paid, the further prosecution of this suit to enjoin their collection would present only a moot question, upon which we have neither the right nor the inclination to express an opinion.
This subject was considered somewhat at length in Little v. Bowers, 134 U. S. 547. The payment of the taxes was, it is true, made under protest, the complainant declaring at the time that they were illegal, and that it was not liable for them; that the payment was made under compulsion of the writs; and that it intended to demand, sue for and recover back the amounts paid. If this enforced collection and protest were sufficient to preserve to the complainant the right to proceed for the restitution of the money, upon proof of the illegality of the taxes, such redress must be sought in an action at law. It does not continue in existence the equitable remedy by injunction which was sought in the present suit. The equitable ground for the relief prayed ceased with the payment of the taxes.
The appeal must therefore be dismissed; and it is so ordered.
ADMIRALTY.
See LIMITED LIABILITY.
ADULTERY.
See JURISDICTION, E, 1.
AGENCY.
See CONTRACT, 9, 11. CORPORATION, 2.
See COURTS OF THE UNITED STATES.
AMENDMENT.
See PRACTICE, 6.
APPEAL.
See PRACTICE, 2, 5.
ASSUMPSIT.
See CONTRACT, 2.
1. Pullman's Palace Car Co. v. Pennsylvania, 141 U. S. 18. Pullman's Palace Car Co. v. Hayward, 36.
2. Western Union Telegraph Co. v. Attorney General of Massachusetts, 125 U. S. 530, followed. Massachusetts v. Western Union Telegraph Co., 40.
3. The same questions are presented here that were determined in McAl- lister v. United States, 141 U. S. 174, and it is affirmed on the authority of that case. Wingard v. United States, 201.
4. Delano v. Butler, 118 U. S. 634, and Aspinwall v. Butler, 133 U. S. 595, affirmed and applied. Pacific National Bank v. Eaton, 227.
5. Pacific National Bank v. Eaton, 141 U. S. 227, affirmed and applied.
6. Pacific National Bank v. Eaton, 141 U. S. 227, and Thayer v. Butler, 141 U. S. 234, affirmed and applied to this case. Butler v. Eaton, 240. 7. The decision below in these cases is reversed on the authority of Fowler v. Equitable Trust Co., 141 U. S. 384. Fowler v. Equitable Trust Co. (2), 408.
8. It being conceded that this case comes within the rules laid down in Ackley School District v. Hall, 113 U. S. 135, and in New Providence v. Halsey, 117 U. S. 336, this court adheres to the doctrines enunciated in those cases. Cross v. Allen, 528.
9. Red River Cattle Co. v. Needham, 137 U. S. 632, affirmed, and applied to the circumstances of this case. Rector v. Lipscomb, 557.
10. Ferry v. King County, 141 U. S. 668, followed. Ferry v. King County, 673.
11. McLish v. Roff, 141 U. S. 661, affirmed and followed.
Paul &c. Railway v. Roberts, 690.
12. Little v. Bowers, 134 U. S. 547, followed. Singer M'f'g Co. v. Wright, 696.
Barrow v. Hunton, 99 U. S. 80; Johnson v. Waters, 111 U. S. 640; and Arrowsmith v. Gleason, 129 U. S. 86, distinguished from Nougué v. Clapp, 101 U. S. 551, and Graham v. Boston, Hartford & Erie Railroad, 118 U. S. 161. Marshall v. Holmes, 589.
CHINA, TREATIES WITH.
See JURISDICTION, B, 1, 2.
CIRCUIT COURTS OF APPEALS. See JURISDICTION, B.
COMMON CARRIER.
See LIMITED LIABILITY.
CONFLICT OF LAW.
See USURY, 1.
1. A statute of a State, imposing a tax on the capital stock of all corpora-
tions engaged in the transportation of freight or passengers within the State, under which a corporation of another State, engaged in running railroad cars into, through and out of the State, and having at all
times a large number of such cars within the State, is taxed by taking as the basis of assessment such proportion of its capital stock as the number of miles of railroad over which its cars are run within the State bears to the whole number of miles in this and other States over which its cars are run, does not, as applied to such a corporation, vio- late the clause of the Constitution of the United States granting to Congress the power to regulate commerce among the several States. Pullman's Palace Car Co. v. Pennsylvania, 18.
2. Following Pullman's Palace Car Co. v. Pennsylvania, 141 U. S. 18, the judgment of the court below is affirmed. Pullman's Palace Car Co. v. Hayward, 36.
3. The tax imposed by the statutes of Massachusetts, (Pub. Stat. c. 13, §§ 40, 42,) requiring every telegraph company owning a line of tele- graph within the State to pay to the state treasurer "a tax upon its corporate franchise at a valuation thereof equal to the aggregate value of the shares in its capital stock," deducting such portion of that valu- ation as is proportional to the length of its lines without the State, and deducting also an amount equal to the value of its real estate and machinery subject to local taxation within the State, is in effect a tax upon the corporation on account of property owned and used by it within the State; and is constitutional and valid, as applied to a tele- graph company incorporated by another State, and which has accepted the rights conferred by Congress by § 5263 of the Revised Statutes. Massachusetts v. Western Union Telegraph Co., 40.
4. The act of the legislature of Kentucky of March 2, 1860, "to regulate agencies of foreign express companies," which provides that the agent of an express company not incorporated by the laws of that State shall not carry on business there without first obtaining a license from the State, and that, preliminary thereto, he shall satisfy the auditor of the State that the company he represents is possessed of an actual capi- tal of at least $150,000, and that if he engages in such business with- out license, he shall be subject to fine, is a regulation of interstate commerce so far as applied to a corporation of another State engaged in that business, and is, to that extent, repugnant to the Constitution of the United States. Crutcher v. Kentucky, 47.
5. The act of Virginia of March, 1867, (now repealed,) as set forth in c. 86, Code of Virginia, ed. 1873, providing that all flour brought into the State and offered for sale therein shall be reviewed, and have the Vir- ginia inspection marked thereon, and imposing a penalty for offering such flour for sale without such review or inspection, is repugnant to the commerce clause of the Constitution, because it is a discriminating law, requiring the inspection of flour brought from other States when it is not required for flour manufactured in Virginia. Voight v. Wright, 62.
6. A contract with a municipal corporation, whereby the corporation grants to the contractor the sole privilege of supplying the municipality with
water from a designated source for a term of years, is not impaired, within the meaning of the contract clause of the Constitution, by a grant to another party of a privilege to supply it with water from a different source. Stein v. Bienville Water Supply Co., 67.
See COURTS OF THE UNITED STATES;
JUDGMENT, 2;
JURISDICTION, A, 13.
LIMITED LIABILITY.
1. Where a contract with a municipal corporation is susceptible of two meanings, the one restricting and the other extending the powers of the corporation, that construction is to be adopted which works the least harm to the State. Stein v. Beinville Water Supply Co., 67. 2. When goods belonging to one party pass into the possession of another surreptitiously and without the knowledge of the latter, no contract of purchase is implied; and if the agent of the latter, who is a party to the surreptitious transfer, sells the goods and puts the proceeds into his principal's possession, but without his knowledge, the prin- cipal is not liable in an action for goods sold and delivered, whatever liability he may be under in an action for money had and received. Schutz v. Jordan, 213.
3. In determining whether an alleged promise is or is not a promise to answer for the debt of another, the following rules may be applied: (1) if the promissor is a stranger to the transaction, without interest in it, the obligations of the statute are to be strictly upheld; (2) but if he has a personal, immediate and pecuniary interest in a transaction in which a third party is the original obligor, the courts will give effect to the promise. Davis v. Patrick, 479.
4. The real character of a promise does not depend altogether upon form of expression, but largely upon the situation of the parties, and upon whether they understood it to be a collateral or direct promise. Ib. 5. When a contract is couched in terms which import a complete legal obligation, with no uncertainty as to the object or extent of the engagement, it is (in the absence of fraud, accident or mistake) con- clusively to be presumed that the whole engagement of the parties and the extent and manner of their undertaking were reduced to writing. Seitz v. Brewers' Refrigerating Co., 510.
6. Whether the written contract in this case fully expressed the terms of the agreement between the parties was a question for the court; and silence on a point that might have been embodied in it does not open the door to parol evidence in that regard. Ib.
7. When a known, described and definite article is ordered of a manufac- turer, although it be stated by the purchaser to be required for a particular purpose, yet, if the known, described and definite thing be
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