upremc Court of % United Stales. ' 
 
 JVo. 1063, 
 
 THE COUNTY OF SAN MATEO, Plaintiff in Error, 
 
 vs. 
 
 THE SOUTHERN PACIFIC RAILROAD COMPANY, 
 
 Defendant in Error. 
 
 ARGUMENT OF S. W. SANDERSON, Esq., COUNSEL FOR DE- 
 FENDANT. 
 
 Mr. Sanderson said : 
 
 May it please the Court, before commencing my argu- 
 ment, I desire to make one or two observations in relation 
 to certaiu misconceptions of counsel in the very able and 
 forcible arguments which have been made upon the other 
 side. Counsel have put us in the position of maintaining 
 propositions which we do not "maintain. We have been 
 misunderstood or misrepresented. It has been assumed 
 upon the other side, first, that we maintain the proposi- 
 tion that this question of " due process of law " imports 
 into the taxing system of the States judicial proceedings 
 or methods in the matter of making assessments or ascer- 
 taining the value of property for the purposes of taxation. 
 We maintain no such doctrine. On the contrary, we ad- 
 mit that " due process of law " does not require a resort 
 to judicial proceedings in the matter of assessments; that 
 
taxes may be levied and collected in a summary manner 
 by administrative boards and officers without the interven- 
 tion of any of those proceedings which are appropriate, 
 and which, in the administration of justice, are generally 
 employed by the courts. All we claim on that head is 
 this : that at some stage of the proceedings, between the 
 commencement and the time at which the assessment be- 
 comes final, the taxpayer shall have notice, or an oppor- 
 tunity to be heard as to the value of his property, before 
 the assessor, or before some other officer or board ap- 
 pointed by law. 
 
 Again, we have been placed in the position of claiming 
 that it* is an indispensable feature in tax laws that a board 
 of equalization should be provided, before which tax- 
 payers may go for the purpose of having their assessments 
 as made by the assessor reviewed. We have contended 
 for no such proposition. Our position on that head is 
 this : that if the State creates a board of equalization for 
 a portion of its taxpayers, and enables them to have a re- 
 view before such board of the action of the assessor, then 
 we say it is the duty of the State also to furnish a board 
 of equalization for all other taxpayers. 
 
 It is also stated upon the other side that we claim that 
 the Fourteenth Amendment to the Federal Constitution 
 prohibits the States from passing any laws, except such as 
 shall act equally and uniformly upon all persons and upon 
 all things in the State. We make no such claim. Our 
 position upon that point is, that the Fourteenth Amend- 
 ment requires that State legislation shall operate equally 
 and uniformly upon all persons and upon all things upon 
 which it is designed to operate at all ; that is to say, upon 
 all persons and all things which stand in the same category, 
 or stand in the same relation to the law. 
 
 For example, a law in relation to bishops, and affecting 
 bishops only, is a general law ; and if it operates upon 
 bishops only, and yet operates equally upon them all, there 
 
3 
 
 can be no objection to it on the score of validity. We 
 only hold in this respect, that tax laws shall operate equally 
 and uniformly upon the property which is taxed, and 
 upon the owners of such property; not that they shall 
 operate universally upon all persons or upon all kinds of 
 property. We do not claim that it is not within the power 
 of the States to select certain kinds or classes of property 
 for taxation, and exempt from taxation all other property. 
 All we claim is that when a State has selected property for 
 the purpose of taxation, it must employ the same system, 
 mode, and method, in ' ascertaining the value of all such 
 property, and must impose upon all of it, without discrimi- 
 nation, the same burden, or rate of taxation. This much 
 in explanation of the propositions for which we contend. 
 
 May it please the Court, there is a preliminary question, 
 presented by the record in this case which, so far, has not 
 been considered by counsel, and to which it is necessary to 
 call the attention of the Court for a few moments. The 
 question is, whether a certain apparent statute of the State 
 of California is law or is not law. If your honors will 
 turn to page 12 of my brief you will find there quoted 
 section 3664 of the political code of the State of California. 
 On page 14, a little below the middle of the page, you will 
 find a bracket, the next word being " respectively." The 
 validity of the remainder of that section, from the bracket 
 on, is challenged by us. The history of this bill is this : 
 In 1880 the legislature passed an act 
 
 The Chief Justice — Is all before that bracket good and 
 valid ? 
 
 Mr. Sanderson — Yes, sir. 
 
 The Chief Justice — It is only this part after the bracket 
 that has been disputed ? 
 
 Mr. Sanderson — Yes, sir. It may seem strange that we 
 should question the validity of a portion of the act and not 
 the whole, for it would seem that if a portion of the act was 
 invalid the whole would be; that I am about to explain. 
 
In 1880 an act was passed amending certain enumerated 
 sections of the political code and adding two new sections. 
 The constitution of California requires that the title to a bill 
 shall state the subject; that the bill shall have but one 
 object, and that such object shall be expressed in its title. 
 Now, it did not appear clearly in the title to this bill to 
 what subject these two new sections related, nor to what 
 code they were to be added, and therefore it was considered 
 doubtful w T hether the title of the bill satisfied the calls of 
 the constitution in that respect. The question was mooted 
 whether this legislation was valid legislation or not; and 
 hence, at the next session of the legislature, it was proposed 
 to amend the title of the act so as to make it conform to the 
 requirements of the constitution. A bill was introduced in 
 the assembly — a verbatim copy of the act of 1880, with the 
 exception of the title — which was amended so as to express 
 the subject of these two new sections and the code to which 
 they were to be annexed. It passed the assembly in that 
 form and was transmitted to the senate. The senate 
 amended section 3664 by adding that portion of the section 
 which, in my brief, is inclosed in brackets. It was then re- 
 turned to the assembly for their concurrence. Upon a call 
 of the ayes and noes, it received only forty votes in the 
 affirmative, but the speaker declared that it was carried. 
 
 Now your honors will see that the first part of the bill of 
 1881 consists of previous legislation. After the passage of 
 the bill of 1881, the Supreme Court held that there was no 
 defect in the title to the bill of 1880, and therefore that such 
 previous legislation was valid. 
 
 The Chief Justice — Did the Governor approve the 
 original bill ? 
 
 Mr. Sanderson — Yes, sir, he approved the original and 
 also approved this. But if this whole bill be regarded as 
 unconstitutional still the old law has been decided to be 
 constitutional by the Supreme Court, and it is therefore only 
 
the validity of that portion included in brackets which 
 comes to this Court for consideration. 
 
 The constitution of the State of California requires that 
 every bill before it shall become a law shall be read three 
 times, shall be passed upon a call of the ayes and noes, and 
 shall not become a law unless it receives a concurrence of 
 a majority of all the members elected to each house. The 
 constitution fixes the number of members of the senate at 40, 
 and the number of members of the assembly at 80. 
 Therefore, in order to pass a bill through the assembly, it 
 is necessary that it should receive the concurrence of 41 
 members, if 80 members have been elected. The journals 
 and statutes show that the assembly was full; that there 
 were 80 members. The certified copy, which I have intro- 
 duced, of the written journal shows that the 'measure re- 
 ceived only 40 votes, being one less than a constitutional 
 majority. 
 
 The Chief Justice — What was the extract which you 
 have put into your original brief, taken from? 
 
 Mr. Sanderson — That was taken from the printed journal. 
 
 The Chief Justice — And your claim now is that the 
 printed journal differed from the written journal ? 
 
 Mr. Sanderson — Yes ; the printed journal differed in 
 this : the count, as given in both the printed and written 
 journal, is 39, and is erroneous. A count of the names in 
 the printed journal shows 41, which is enough to pass the 
 bill. In the written journal a count of the names shows 40. 
 That is one more than the count, as there stated, shows, 
 but not enough to pass the bill. 
 
 Mr. Justice Gray — Is there any provision in the con- 
 stitution as to reviewing that matter by the courts, or any 
 decision by the Supreme Court as to how far that is matter 
 of judicial investigation? 
 
 Mr. Sanderson — There has been no decision by the 
 court on that subject. Our constitution is young yet, and 
 
6 
 
 this question has not been before them, or at least has not 
 been decided, so tar as I am advised. 
 
 Mr. Justice Gray — And there was no such provision in 
 your former constitution ? 
 
 Mr. Sanderson — There was no such provision in the old 
 constitution. The new constitution and the codes provide 
 that journals shall be kept of the proceedings of the legis- 
 lature, in which shall be entered minutes of transactions as 
 they occur, and that they shall be read each morning by 
 the secretary, and approved and signed by the presiding 
 officers — the Speaker of the Assembly, or the President of 
 the Senate, as the case may be. The Code of Civil Pro- 
 cedure provides that these journals shall be competent evi- 
 dence to prove the transactions of the legislature. They 
 are evidence of a better character, and of a higher grade 
 than the printed statutes. Therefore, there can be no ques- 
 tion but what the constitution and the legislation of the 
 State of California, in relation to this subject, was intended 
 to provide additional safeguards in respect to the passage 
 of bills which had not been provided in the old constitu- 
 tion. 
 
 The history of legislative bodies in this country shows 
 that bad measures sometimes become laws through vicious 
 practices and methods. Measures have been allowed to 
 pass by the mere vote of a majority of a quorum. Hence, 
 to obviate this mischief, real or supposed, these provisions 
 of the new constitution were inserted; and the only ques- 
 tion is, can the courts go behind the printed statutes and 
 behind the enrolled bills deposited in the office of the Sec- 
 retary of State for the purpose of ascertaining whether a 
 law has been enacted in the manner and by the vote re- 
 quired by the constitution ? There is no question about 
 the fact that a bill which does not receive the constitu- 
 tional majority cannot become a law. The only question 
 is, may you look into the journals for the purpose of ascer- 
 taining what did and what did not become a law ? 
 
I will not spend any time on that question. This provi- 
 sion of our constitution was borrowed from the constitu- 
 tion of the State of Illinois. The decisions in that State 
 are numerous and conclusively with us on that subject. 
 They are cited in my brief. There are also two decisions 
 by this Court to the same effect — both, I think, by Mr. Jus- 
 tice Miller — in which he holds substantially : that it is 
 the duty of the courts to find and declare the common law, 
 and that it is no less their duty to find and declare the writ- 
 ten or statutory law. Therefore, it is their duty, in investi- 
 gating that question, to examine all competent testimony — 
 made so by legislation — for the purpose of ascertaining and 
 determining whether a law has passed a legislative body in 
 conformity with constitutional requirements. These cases 
 are also cited in my brief. It has been held everywhere — 
 where similar provisions exist — that this may be done. 
 The authorities cited upon the other side, from the State of 
 California, were rendered under the old constitution, which, 
 as already stated, contained no provisions similar to those 
 which are found in the new constitution. Those authori- 
 ties are, therefore, not in point. It has been held in States 
 where such constitutional provisions do not exist, that you 
 cannot go behind the enrolled bills; but where these pro- 
 visions do exist, it has been universally held that you may 
 go behind the enrolled bills and read the journals. 
 
 Mr. Justice Bradley — You are aware of the case in 
 New Jersey, I suppose ? 
 
 Mr. Sanderson — I do not remember the case. 
 
 Mr. Justice Bradley — I contended very strenuously, as 
 you do, that the journal should decide the case, but the 
 court of appeals reversed me. 
 
 Mr. Sanderson — Are there any su2h constitutional pro- 
 vision in New Jersey as we have here ? 
 
 Mr. Justice Bradley — Exactly the same. 
 
 Mr. Sanderson — Then I think your honor was right, and 
 the court of appeals was wrong. The question as to the va- 
 
8 
 
 lidity of this part of section 3664 becomes important when 
 you come to consider the question whether the taxing system 
 of the State of California affords the defendant an opportu- 
 nity to be heard at some stage of the proceedings, because it 
 is in that portion of section 3664 that the proceedings are 
 authorized upon which the other side, in the court below, 
 chiefly relied for the purpose of showing that an opportunity 
 to be heard is given. 
 
 It is claimed by the counsel upon the other side that we 
 are not within the guaranties of the Fourteenth Amend- 
 ment, first, because we are not a " person" ; second, because 
 we are not a colored person; and third, because the laws 
 of which we complain are not the laws referred to in that 
 amendment. 
 
 The proposition, may it please the Court, that corpora- 
 tions are not included in the word " person " as used in 
 that amendment, is at least a startling one. I have been to 
 the trouble of collecting some facts in relation to the number 
 of corporations in the country and the amount and value of 
 their assests or property. Of course it was a difficult matter 
 to ascertain fully and with entire satisfaction, but from the 
 returns which I was able to reach, I found that the insurance 
 companies of this country number not less than 1,600, and 
 that their aggregate assets are not less than $99,000,000. 
 There are more than 5,000 mining corporations, the value 
 of whose claims and other property it is impossible to state. 
 
 There are more than 2,000 national banks, with assets 
 valued at more than $2,000,000,000. There are doubtless 
 a large number of other bank corporations which are not 
 national, and whose assets, or their value, I have no means 
 of ascertaining. 
 
 There are in the United States and Territories not less than 
 1,500 railroad corporations, operating not less than 110,000 
 miles of railroads, with property and assets of not less than 
 $6,000,000,000. 
 
 In addition to these business and trading corporations, 
 
9 
 
 there are scattered throughout the length and breadth of 
 the country, in every town, village, and city, educational, 
 religious, eleemosynary, and sanitary corporations without 
 number, with property of a value which we have no means 
 of knowing. Now, it may be that all these corporations 
 and all these stockholders are without the protection of the 
 Fourteenth Amendment; but, if it be so, there should be 
 some surer foundation for such a conclusion than the emas- 
 culating construction of the word "person." If we look 
 to the literature of the law, from time immemorial down to 
 the present time, we find that corporations are spoken of 
 and treated as legal persons. We find that Mr. Blackstone, 
 in his work upon the Rights of Persons, devotes a chapter 
 to corporations, and states that persons are divided into 
 classes — natural and artificial. That natural persons are 
 such as God has made us, and artificial persons are such as 
 the law has made them. 
 
 Chancellor Kent does the same. He gives a chapter to 
 corporations in his work on the Rights of Persons. 
 
 Nowhere has it ever been asserted that, in the matter of 
 the acquisition, possession, and enjoyment of property, a 
 corporation was not a person within the meaning of any 
 law, notwithstanding the word " corporation" was not em- 
 ployed. 
 
 Very little attention has been paid, if the Court please, to 
 the authorities upon this subject. I desire to refer your 
 honors to some of the authorities upon the question, which 
 I think are conclusive. In the time of Henry the Eighth 
 a statute was passed which imposed the burden of 
 building and repairing bridges upon the inhabitants 
 of the town, city, or county in which they were sit- 
 uated. Lord Coke, in commenting on that statute, 
 held that corporations were embraced within it, and 
 that a corporation was, within the purview and mean- 
 ing of that statute, an inhabitant of the town or 
 2s 
 
10 
 
 county. Chief Justice Marshall had occasion to refer to 
 this in the first case before this Court involving the ques- 
 tion as to what is the legal status of a corporation. Before 
 that, however, in Rex. vs. Gardner, Chief Justice Mansfield 
 had decided that a corporation was an " occupier," within 
 the meaning of a statute in regard to certain poor rates 
 which were not assessed against the occupant of the land, 
 because there was no occupant — the land belonging to a 
 corporation. He (Mansfield) held that a corporation was 
 an " occupier " within the meaning of that law. The com- 
 ment of Coke and the decision of Mansfield came before 
 this Court in the case of the United States vs. Deveaux, in 
 5 Cranch, 61. The question was whether a corporation 
 was a citizen of the United States within the meaning of 
 the constitutional provision which confers jurisdiction upon 
 the Federal courts over controversies between citizens of 
 different States ; and it was contended that a corporation 
 could not be regarded in any sense, as a citizen, and that 
 this Court had no jurisdiction over a controversy between 
 a corporation and tbe citizens of another State. Chief 
 Justice Marshall, however, swept the cobweb from his 
 path and looked behind the shadow at the substance, and 
 there he found natural persons, though a corporation, hav- 
 ing the rights of natural persons, which they were endeav- 
 oring to assert in their behalf; and he held that these per- 
 sons were not to be deprived of their rights as citizens of 
 the United States because they had organized themselves 
 into a corporation, and that they were " persons " within 
 the meaning of that clause of the Federal Constitution. 
 
 The same question came up again in the reverse form. 
 An attempt was made to bring the Baltimore and Ohio 
 Railroad Company into the circuit court of the United 
 States, and that corporation pleaded to the jurisdiction of 
 the court upon the ground that it was not a person, but was 
 a corporation, and, therefore, was not bound to answer in 
 
11 
 
 the Federal courts. Mr. Justice Grier disposed of that 
 question in a very summary manner. He said : 
 
 % 'A corporation, it is said, is an artificial person, a mere 
 legal entity, invisible and intangible." 
 
 Then he goes on and argues the question upon that head, 
 and he winds up with this language : 
 
 " But these important faculties, conferred on them by 
 State legislation, for their own convenience, cannot be 
 wielded to deprive others of acknowledged rights. It is not 
 reasonable that those who deal with such persons should be 
 deprived of a valuable privilege by a syllogism, or rather 
 sophism, which deals subtly with words and names, without 
 regard to things or persons they are used to represent." 
 
 It is a little singular, if true, that if a corporation, under 
 the laws of England, can be " an inhabitant," "an occupier," 
 can be a person, an individual, and an inhabitant under the 
 laws of some of our own States, and cease to be either 
 when we come to consider the question whether they are 
 " persons " under the Fourteenth Amendment. If they are 
 " persons " under one clause of this Constitution, they must 
 be " persons," also, under other clauses of the Constitution 
 which deal with the same or cognate subjects. Wherever 
 their rights are affected, wherever their property is affected, 
 they are persons, as was held by Mr. Justice Story in the 
 next case to which I shall refer. The case of the United States 
 vs. Amedy, 11 Wheaton, 392, was a criminal prosecution 
 under a law which made it a felony for any person to 
 destroy a vessel upon the high seas with the intent to injure 
 the underwriters. The underwriter in that case was a cor- 
 poration — the Boston Insurance Company. No mention 
 was made in the statute of a corporation. The language 
 was, " shall burn or destroy any ship or vessel, of which he 
 is owner in part or in whole, or in anywise direct or pro- 
 cure the same to be done, with intent or design to preju- 
 
12 
 
 dice any person or persons that hath underwritten or shall 
 underwrite," &c. 
 
 The question was whether this Boston Insurance Com- 
 pany being a corporation was a " person " within the mean- 
 ing of that statute. Mr. Justice Story in delivering the 
 opinion of the court, among other things, said : 
 
 " If there had been any settled course of decision on this 
 subject in criminal cases, we should certainly, in a prosecu- 
 tion of this nature, yield to such a construction of that act, 
 but there is no such course of decisions. The mischief in- 
 tended to be reached by the statute is the same whether it 
 respects private or corporate persons. That corporations 
 are in law for civil purposes deemed persons, is unquestion- 
 able." 
 
 Mark the last sentence — " That corporations are in law 
 for civil purposes deemed persons is unquestionable." Take 
 another case that occurred in those times when there was 
 no difficulty in holding that a corporation was a person, 
 when it had occasion to invoke the general principles of law 
 for the purpose of protecting its property. We find in 8 
 Wheaton another case which arose under the treaty of peace 
 between the United States and Great Britain, the sixth ar- 
 ticle of which provided : " That there should be no future 
 confiscation made nor any prosecution commenced against 
 any person or persons for or by reason of the part which he 
 or they may have taken in the war, and that no person 
 should, on that account, suffer any future loss or damage 
 either in his person, liberty, or property." 
 
 The word " person " is used here and such pronouns as 
 are employed in designating natural persons. The case 
 showed that an English corporation before the war had 
 owned land in the State of Vermont, that the State of Ver- 
 mont had confiscated that land and granted it to the town 
 of New Haven. The English corporation interposed, and 
 sought the protection of this sixth article of the treaty, and 
 its rights were contested upon the ground that it was not a 
 
18 
 
 " person " within the meaning of that treaty ; that the treaty 
 did not refer to corporations ; that the word " person " was 
 used in connection with pronouns which indicated a natural 
 person, and could have no application, grammatically, to an 
 artificial person. The court rejected that kind of logic and 
 held that a corporation in England was a " person " within 
 the meaning of that treaty, because the corporation was 
 within the reason and philosophy of that portion of the 
 treaty, in that it owned property, and the purpose of the 
 treaty was to protect that property against confiscation ; 
 and that it stood, so far as the merits of the question was 
 concerned, in precisely the same relation to the treaty in 
 which a uatural person stood, and was therefore entitled to 
 the same consideration and protection. 
 
 The authorities upon this subject are so numerous that it 
 seems like a waste of time to refer to them. I defy the 
 gentlemen upon the other side to produce a single case in 
 which it has been held that a corporation, in respect to the 
 possession and enjoyment of its property, whenever it 
 seeks to enforce its rights, or whenever the law seeks to 
 impose upon it any burdens or obligations, is not re- 
 garded as a person, whether the word) " corporation " occurs 
 in the law or not. 
 
 Take the case of The People vs. Utica Insurance Com- 
 pany, (15 Johnson, 508.) There the Supreme Court of New 
 York held that a statute restraining any person from doing 
 certain acts applied as well to corporations or bodies poli- 
 tic, although not mentioned. 
 
 In the case of The Planters' Bank vs. Andrews, (8 Porter, 
 404,) it was held that a corporation was a person within the 
 meaning of the attachment laws of Alabama, although cor- 
 porations were not named. 
 
 In The State vs. Nashville University, (4 Humphreys, 
 166,) it was held that a corporation fell within the meaning 
 of the word " person " in a statute which directed the Land 
 
14 
 
 Office to be opened for the reception of entries by all and 
 every person or persons. 
 
 This Court, in the Sinking Fund cases, has made no dis- 
 tinction between persons and corporations, but has placed 
 them in the same category. Mr. Chief Justice Waite, in 
 delivering the opinion of the Court in those cases, says: 
 
 " The United States cannot, any more than a State, inter- 
 fere with private rights except for legitimate governmental 
 purposes. They are not included within the constitutional 
 prohibition, which prevents States from passing laws im- 
 pairing the obligation of contracts; but, equally with the 
 States, they are prohibited from depriving persons or corpo- 
 rations of property without due process of law." 
 
 In this clause, as to " due process of law," wherever it 
 occurs, only the word " person " is used ; the word " cor- 
 poration" is not used. Nowhere in the books, nowhere in 
 Magna Charta, nowhere in any State constitution, nowhere 
 in the Constitution of the United States, do you find the 
 word " corporation " in the clause in relation to due pro- 
 cess of law. And yet no one has ever pretended until now 
 that it does not protect artificial as well as natural persons. 
 The research of counsel upon the other side has failed to 
 find a case in which any distinction has been made, in this 
 respect, between corporations and natural persons. This 
 failure is significant. 
 
 If the Court please, there are some authorities upon this 
 question directly in point, some of which are opposed to the 
 position which we take, and others in favor of it. And first 
 on the list is a case decided in Louisiana, in the circuit 
 court of the United States, by his honor Mr. Justice Woods. 
 That was a case in which the city of New Orleans had, by 
 ordinance, imposed a tax upon foreign insurance companies 
 doing business in that city to double the amount of that 
 which the ordinance imposed upon domestic insurance cor- 
 porations. A corporation organized under the laws of the 
 State of New York, engaged in the insurance business in 
 
 
15 
 
 New Orleans, contested the validity of that ordinance under 
 the Fourteenth Amendment, claiming that it was a "per- 
 son" within the meaning of that amendment; and that was 
 the only question which was considered by the court. Mr. 
 Justice Woods, in delivering the opinion in that case, said, 
 among other things : 
 
 " The word i person ' occurs three times in the first sec- 
 tion in the following connections : 4 All persons born or nat- 
 uralized in the United States;' * * * ' nor shall any 
 State deprive any person of life, liberty, or property, &c. ;' 
 ' nor' shall any State * deny to any person within its juris- 
 diction the equal protection of the laws.' The complainants 
 claim that this last clause applies to corporations — artificial 
 persons." 
 
 Now attend to the reasoning of the learned judge : 
 
 " Only natural persons can be born or naturalized ; only 
 natural persons can be deprived of life or liberty; so that it is 
 clear that artificial persons are excluded from the provisions 
 of the first two clauses just quoted. If we adopt the con- 
 struction claimed by complainants, we must hold that the 
 word 'person,' where it occurs the third time in this sec- 
 tion, has a wider and more comprehensive meaning than in 
 the other clauses of the section where it occurs. This 
 would be a construction for which we find no warrant in 
 the rules of interpretation. The plain and evident meaning 
 of the section is that the persons to whom the equal protec- 
 tion of the law is secured, are persons born or naturalized 
 or endowed with life and liberty, and consequently natural 
 and not artificial persons." 
 
 Now, with all due respect to the learned judge who de- 
 livered the opinion in that case, I think his reasoning is 
 subject to the criticism of Mr. Justice Grier in answering a 
 similar objection in the case of the Baltimore and Ohio 
 Railroad Company, where he said that persons were not to 
 be deprived of their constitutional rights by a syllogism or 
 sophism which deals cunningly with words to the disregard 
 of names and things. 
 
16 
 
 The reasoning of the learned judge is this : 
 
 " Persons are born or naturalized ; corporations are not 
 born or naturalized. Ergo, corporations are not persons." 
 
 Now, this is a syllogism, and syllogistic reasoning is un- 
 safe reasoning when we come to ascertain the meaning of 
 words contained in a statute or constitution. It is as apt 
 to lead to erroneous conclusions as a reference to grammat- 
 ical rules for the same purpose, or even more so. Now let 
 us test the virtue of this syllogism by applying it to a case 
 with which we are all familiar. According to Moses's ac- 
 count of the matter, Adam and Eve were not born nor natu- 
 ralized ; they were created. Vary the syllogism of the 
 learned judge and apply it to their case. Corporations are 
 not born or naturalized, but created ; Adam and Eve were 
 not born or naturalized, but created ; therefore Adam and 
 Eve were corporations. Such logic is not safe logic for the 
 purpose of ascertaining the meaning of language as used in 
 a statute or in a constitution. The judge says that corpor- 
 ations are not born. It is true that in a literal technical 
 sense they are not, and yet in a legal and figurative sense 
 they are. Bentham says : " Laws and property are born 
 and must die together. Before there were laws there was 
 no property; take away the laws and property ceases." 
 
 Mr. Justice Bradley — Do you contend that tfyat first 
 clause of the amendment relates to artificial persons ? 
 
 Mr. Sanderson — I am not done with that language yet. 
 The confusion, or whatever it may be called, thrown into 
 this amendment in the first clause, is due to the fact that 
 an amendment was tacked on to it which the committee 
 did not report. 
 
 Mr. Justice Bradley — I thought you were arguing that, 
 although the word person was used, it might to some ex- 
 tent be applied to corporations. 
 
 Mr. Sanderson — Yes, it may. If I understand your 
 honor, I think that the construction of the word " person " 
 
17 
 
 that the learned judge gives, where it occurs in the last two 
 clauses, claiming that it is the same in meaning as the word 
 "person" found in the first, is all wrong, for the reason 
 that the word " person " used in the first clause is accom- 
 panied by the associate words " born or naturalized," which 
 are a limitation upon the word " person " as there used, and 
 confines its meaning to those who are born and who are 
 naturalized, while the word '* person " in the last two 
 clauses is not associated with any qualifying words at all, 
 but is used in its generic sense, and embraces all persons 
 of all classes. The word "person " in the last two clauses 
 is broader and more comprehensive than the word "person" 
 contained in the first clause. As suggested by my asso- 
 ciate, Mr. Edmunds, an examination of the journal will 
 show that this first clause in relatiou to citizenship was a 
 political clause, which was not in the amendment at the 
 time it was reported to the House, but was added in the 
 Senate, and has no connection with, and was not intended 
 to have, any control over the subsequent parts. 
 
 Mr. Justice Bradley — I understand there was a great 
 controversy about citizenship; whether they belonged to 
 the State or the United States. 
 
 Mr. Sanderson — Yes, sir, that question was considered 
 by Mr. Justice Miller in the Slaughter-house Cases. 
 
 Mr. Justice Bradley — And the amendment was intended 
 to settle that question ? 
 
 Mr. Edmunds — Yes, but it was a political consideration 
 that the Senate suggested to the House after the main body 
 of private rights had been disposed of in the House of Rep- 
 resentatives. 
 
 Mr. Sanderson — To continue my remarks upon the 
 Louisiana case. The reasoning in that case interpolates 
 words — adds words to the language of the Fourteenth Amend- 
 ment which were not employed by the statesmen who 
 framed it. According to the reasoning in that case the first 
 3s 
 
18 
 
 section — if the meaning attributed to it be fully expressed 
 in words — would read thus : 
 
 "All persons born or naturalized in the United States, 
 and subject to the jurisdiction thereof, are citizens of the 
 United States and of the State wherein they reside; * * * 
 nor shall any State deprive any person (born or naturalized 
 in the United States) of life, liberty, or property, without 
 due process of law ; nor deny to any person (born or 
 naturalized in the United States) within its jurisdiction the 
 equal protection of the laws." 
 
 To thus interpolate words is not sanctioned by any rule 
 of construction. To thus interpolate words is to make laws 
 and not to construe them. No court can lawfully do this. 
 Jus diseere 7ion jus dare is the measure of judicial power. 
 You may declare the law but you cannot make it. Had 
 Congress intended the meaning which the learned judge 
 has given to the word " person " they would have prefixed 
 to it the word "such," so that these clauses would have 
 read as follows : 
 
 " Nor shall any State deprive any (such) person, &c. ; nor 
 deny to any (such) person, &c." 
 
 And the fact that no euch qualifying word or words were 
 used conclusively shows that no such limitation upon the 
 meaning of the word " person " was intended. 
 
 There are two other cases in which the same conclusion 
 was reached. One was decided by the supreme court of 
 California, and the other by a judge of a circuit court of the 
 State of Illinois. The former gave no reasons for the faith 
 that was in them, but blindly followed the Louisiana case. 
 The Illinois judge adopted the reasoning, substantially, of 
 Mr. Justice Woods. 
 
 In opposition to the doctrine announced in these cases 
 there have been several decisions by the Federal judges on 
 the Pacific coast, and by United States circuit Judge Drum- 
 mond, of Illinois, in which it has been held that corpora- 
 
19 
 
 tions are as much entitled to protection under the Fourteenth 
 Amendment as natural persons. These decisions are cited 
 in my brief. I have no time for comment. There is also 
 a case by the supreme court of Illinois, in which it is held 
 that no distinction can be made between corporations and 
 natural persons in the presence of constitutional guaranties. 
 This case is not cited in my brief. It is reported in 76 
 Illinois Reports, at page 447. I trust your honors will read 
 it. 
 
 These decisions we must presume were perfectly familiar 
 to the statesmen who framed the Fourteenth Amendment. 
 They were familiar with the fact that the word person in- 
 cluded corporations, and if any layman in either House of 
 Congress had moved to amend by adding the word " corpo- 
 ration " in addition to the word " person," every lawyer in 
 the House would have told him that it was entirely unnec- 
 essary. If he had moved to amend by adding "any other 
 association, firm, co-partnership, or joint stock company," 
 they would have told him that the word person in connec- 
 tion with civil rights always includes corporations and 
 other legal associations. I think you can find no case in the 
 books to the contrary. Suppose that certain negroes down 
 in South Carolina, having acquired means suflicient, should 
 conclude to build a theatre or some other place of amuse- 
 ment and should build it. We all agree, I think, that the 
 Fourteenth Amendment protects the negro against State 
 action if it does not the white man. Now suppose that 
 these persons after having built their theater should 
 come to the conclusion that it would be advantageous 
 for them to take on the form of a corporation for 
 carrying on their business, and should organize them- 
 selves into a corporation so that you would have in fact 
 a colored corporation instead of colored natural persons. 
 Would such a corporation be within the protection of the 
 Fourteenth Amendment ? Could the State of South Caro- 
 lina despoil them of their theatre upon the ground that they 
 
20 
 
 were a corporation, while they could not be despoiled of 
 their theatre so long as they remained in their capacities as 
 natural persons? It cannot be that a great constitutional 
 provision of this character can be rendered inoperative sim-. 
 ply by a change in the legal attitude which the parties may 
 assume. If the constitution would protect such property 
 from State action, while its owners were individuals or nat- 
 ural persons, it must necessarily do the same thing when 
 they take on the form of a corporation, or else this eonsti- 
 tional amendment fails to accomplish in part one of the 
 great purposes which all concede was intended to be sub- 
 served by its adoption — namely, protection for the negro 
 race. 
 
 A short time before this case came up in California an 
 item appeared in the newspapers which illustrates the ab- 
 surdity of holding that a corporation is not included within 
 the word " person " as used in this amendment. A certain 
 firm doing a large and extensive business, which they had 
 been conducting for several years, concluded that it would 
 be more convenient to organize themselves into a corpora- 
 tion to carry on precisely the same kind of business. They 
 formed a corporation, and they published in the newspapers 
 the fact that they had formed a corporation, and that the 
 corporation would continue the business as before, and that 
 the interest of each member would be the same in the cor- 
 poration as it had been in the firm. Now, take that case. 
 While they remained in their capacities as natural persons, 
 no one pretends that they were not within the protection of 
 the Fourteenth Amendment, if that amendment applies at 
 all to white people. But the moment they laid aside their 
 natural capacity and assumed that of a corporation, accord- 
 ing to the logic of our friends upon the other side, they for- 
 feited all their rights under the Fourteenth Amendment. 
 Thereafter there was no restraint upon the State in respect 
 to them, though prior to that time there had been. By this 
 simple transmutation of private persons into a corporation, 
 
21 
 
 the meaning, force, and effect of this constitutional pro- 
 vision, if counsel upon the other side be correct, was en- 
 tirely changed and reversed. 
 
 Another consideration, may it please the Court. Corpo- 
 rations are composed of natural persons. They pay in their 
 money; the assets of the corporation are furnished by them- 
 selves. The whole property is contributed by themselves. 
 The corporation is the mere representative or agent of its 
 stockholders. During the life of the corporation its stock- 
 holders are entitled to share in its earnings, if there be any, 
 in the way of dividends. Upon the dissolution of the cor- 
 poration they are entitled to share in the surplus fund, after 
 the payment of creditors, if there be any. Now, this inter- 
 est which the stockholder has in the property, and assets of 
 the corporation, is property. It has a commercial, exchange- 
 able value. It is transferred from person to person by the 
 transfer of certificates representing shares. It is property. 
 If a man dies it descends to his personal representative for 
 the purpose of administration, and if there be any left after 
 administration it goes to his heirs ; and it is in view of these 
 legal conditions that the courts hold that stockholders' bills 
 , may be entertained for the purpose of protecting the stock- 
 holder against the mal-administ ration of the directors. Is 
 it to be presumed that property of this character was not 
 intended to be protected by the clause in relation to due 
 process of law as much as any other property belonging to 
 a natural person? I, as a natural person, own certain spe- 
 cies of property. The Federal Constitution protects that 
 from the unjust legislation of the State. I also own an un- 
 divided interest in the assets of a corporation, which is also 
 property. That property, the learned gentleman upon the 
 other side informs us, the Fourteenth Amendment will not 
 protect against confiscation on the part of the State. Can 
 it be possible that the Fourteenth Amendment can be so 
 construed as to lead to these contradictory and absurd re- 
 sults ? Can it be that it was not intended to protect all 
 
22 
 
 kinds and descriptions of property belonging to natural 
 persons, whether it be that which is under his own absolute 
 control or that to which the title is invested in some third 
 party as trustee to hold for his benefit? Can a mere differ- 
 ence in circumstances and condition between the first and 
 second kinds of property referred to create a difference in 
 rule in the constitutional law of the country ? I most re- 
 spectfully submit that it does not; and therefore, for the 
 purpose of carrying out the command and behest of the 
 Federal Constitution, you are required to do what? The 
 command is that no State shall deny to any person the 
 equal protection of the laws; no State shall deprive any 
 person of life, liberty, or property, except by due process of 
 law — all property — any property which he holds in his 
 own right, in his own name, or in the name of another; the 
 word is " property," the broad generic term which covers 
 and includes everthing which man may acquire, possess, 
 and enjoy — all property. The language is, no State shall 
 deprive any person of life, liberty, or property — that is to 
 say, any property — except by due process ot law. 
 
 Now, if that is what it means, then, in order to protect 
 the interests of the stockholder in the assets of the cor- 
 poration, you must protect the corporation. To accomplish 
 the principal purpose you must subserve the minor. You 
 cannot, because a man has deposited his property in the 
 hands of another, hold it subject to confiscation by a State 
 in the presence of such a provision of the Federal Consti- 
 tution. 
 
 It is next said, may it please your honors, that this pro- 
 vision of the Federal Constitution does not apply to white 
 men ; that it was intended to apply only to the negro race. 
 It is very clear, if we look back over the history of the past 
 twenty years, that this country has done a great deal for 
 the negro race. It has stricken the fetters from their ankles 
 and their hands, and it has endowed them with a second 
 manhood. It has made them free men; it has endowed them 
 
23 
 
 with the rights of citizenship, political and civil, and it has 
 placed them on a par and equality with the white man. 
 But that is none too much; we do not complain of that. 
 We only say that something should now be done for the 
 poor white man. We ask that he may be lifted up and put 
 upon a level with the negro. We ask that this Fourteenth 
 Amendment be so construed as to concede to the white man 
 equal rights under the Constitution of the United States 
 with the black man. Our claim is for universal equality 
 before the law. We claim that we should have no privi- 
 leged classes; that we should all stand, as regards the law, 
 upon the same broad and level platform. And, yet, my 
 friends upon the other side, by their construction of this 
 amendment, would create a privileged class. They have 
 demonstrated, if they have demonstrated anything, that 
 the negro race of America is a privileged class ; that it 
 stands higher upon the plane of legal rights than the white 
 man; that whenever his rights are invaded he finds a shield 
 and a protection in the Fourteenth Amendment to the 
 Federal Constitution ; but whenever a white man's rights 
 are invaded, whenever he is outraged by unjust State legis- 
 lation, we are told by the eloquent gentleman on the other 
 side that there is no shield for him to be found in the 
 Fourteenth Amendment; that the white man is without 
 protection in cases where the black man is protected ; in 
 other words, that the white man is not the equal of the 
 black man. The construction which they put on these 
 clauses of the Fourteenth Amendment leads us inevitably 
 to that conclusion. 
 
 I have been to the trouble of gathering a few statistics 
 upon this subject, for the purpose of illustrating what the 
 consequence of this doctrine would be should it receive 
 the sanction of this Court. On page 52 of my brief you 
 will find some information which I have gathered from the 
 census returns of 1870, and also from the census returns of 
 1880. In 1870 the negro population in Louisiana was 
 
24 
 
 364,210 and the white population 362,065 ; the excess of 
 blacks over whites was over 2,000. In 1880 the black popu- 
 lation of the same State was 483,794 and the white popula- 
 tion 455,007; an excess* of blacks over whites of 28,787. 
 In Mississippi the black population in 1870 was 444,201, 
 while the white population was only 382,896, making an 
 excess of blacks over whites of 61,305. In the same State 
 in 1880 the black population was 650,337 and the white 
 population 479,371 ; an excess of blacks over whites of 
 170,966. In the State of South Carolina the black popula- 
 tion in 1870 numbered 415,814, while the white population 
 in the same State was only 289,667; an excess of blacks of 
 126,147. In the same State in 1880 the black population 
 numbered 604,^75, while the w T hite population numbered 
 only 391,224 ; an excess of blacks of 213,051. 
 
 I refer, if the Court please, to these statistics for the pur- 
 pose of giving point to my illustration which I propose to 
 present for the purpose of showing that this constitutional 
 provision was not intended to be limited in its scope and 
 provision to the negro race alone. 
 
 Mr. Justice Miller — As we decided in the Slaughter 
 House cases, (although the argument was the other way,) 
 we say : "And so, if other rights are assailed by the 
 States which properly and necessarily fall within the pro- 
 tection of these articles, that protection will apply, though 
 the party interested may not be of African descent." 
 
 Mr. Sanderson — I am glad to know that, your honor. 
 
 Mr. Justice Miller — I do not know that anybody in 
 this Court — I have never heard it said in this Court or by 
 any judge of it — that these articles were supposed to be 
 limited to the negro race. 
 
 Mr. Sanderson — But there is a notion out among the 
 people, and our friends on the other side have cited several 
 cases for the purpose of showing that it was the intention 
 of this Court to give to this provision of the Constitution 
 as restricted and limited application as possible. 
 
25 
 
 Mr. Justice Miller — The purport of the general dis- 
 cussion in the Slaughter-House cases on this subject was 
 nothing more than the common, declaration that when you 
 come to construe any act of Congress, any statute, any con- 
 stitution, any legislative decjree, you must consider the 
 thing, the evil which was to be remedied, in order to un- 
 derstand fairly what the purpose of the remedial act was. 
 
 Mr. Sanderson — We agree perfectly, and I am not going 
 to urge that there is anything contained in the Slaughter- 
 House cases which admits of a different construction than 
 your honor now puts upon it. But I must confess that there 
 has been an impression thut the Slaughter-House cases nar- 
 rowed the provisions of the first clause, and also the provisions 
 of the two latter clauses — their scope, as one would naturally 
 understand them from reading their words. But, as I was 
 about to show when your honor interrupted me, the Slaughter- 
 House cases do not justify such an impression. Your honor 
 says, at page 72, " We do not say that no one else but the 
 negro can share in this protection. * * * 
 
 And so, if other rights are assailed by the States, which 
 properly and necessarily fall within the protection of these 
 articles, that protection will apply, though the party inter- 
 ested may not be of African descent." » 
 
 I am very glad to have any doubt which has existed in 
 the minds of the profession in regard to the purport and 
 meaning of that decision cleared up by an authoritative 
 opinion given in this public manner. I understand, then, 
 that we may consider, for the purposes of this case, so far 
 as your honor is concerned, that the color line has disap- 
 peared from American jurisprudence, that there are not 
 two constitutions in this country — one for the black man 
 and one for the white man — and that the white man is at 
 last on an equality with the negro. But, nevertheless, 
 in view of the fact that there are some judges on the bench 
 who were not here at the time the Slaughter-House cases 
 were considered, and who may, so far as I know, entertain 
 4s 
 
26 
 
 the idea that there are some clauses of this amendment 
 which confine its operation to the negro race, I do not 
 propose to discontinue my argument on this point. Let us 
 reverse the conditions presented by Mr. Justice Miller in 
 the Slaughter-House cases, in refereuce to the condition 
 of the negroes at the South, and the character of the 
 legislation which had been enacted against them for 
 the purpose of testing whether this constitutional re- 
 striction was intended to be confined exclusively to 
 them or not. I say, suppose in those three States, Missis- 
 sippi, Louisiana, and South Carolina, where the negro 
 population preponderated over the white, the negroes had 
 possessed the requisite intelligence and nerve to organize 
 themselves into a political party and had elected their own 
 men to office ; had filled the halls of legislation and the 
 halls of justice with persons of their own race ; suppose 
 they had enacted laws prohibiting white persons from re- 
 siding in the towns, except in the capacity of menial 
 servants, requiring them to reside upon the soil and till it, 
 but denying to them the right to purchase it, or own it; 
 had denied to them the right to testify in cases in courts of 
 justice where negroes were a party; had by the failure to 
 pass sufficient or to provide for the efficient administration 
 of the laws allowed the beating down of white men by 
 negroes, as is represented to have been done to negroes by 
 w r hite men in the Slaughter-House cases. Now, suppose 
 these poor whites had come to this Court, claiming protec- 
 tion against such legislation ; suppose they had come to this 
 Court and invoked for their protection against such out- 
 rages the provisions of the Fourteenth Amendment to the 
 Federal Constitution. Would this Court have closed its 
 doors in their faces ; would it have said to them " the Four- 
 teenth Amendment was intended to prohibit white men from 
 enacting such legislation against black men, but it was not 
 intended to prohibit black men from enacting such legisla- 
 tion against white men ? " I do not think the Court would 
 
27 
 
 have so answered ; I am now more satisfied than ever that 
 it would not. I am glad to know that we have not, in this 
 country, two constitutions, one for the black man and one 
 for the white man. I am glad to know, in advance, that 
 the color line is about to disappear from legislative and 
 judicial history in this country, and that all of us white, 
 as well as black, are to stand side by side upon the broad 
 platform of universal equality in the presence of the law of 
 the land. 
 
 But it is also said that we are not entitled to the benefits 
 of this provision of the Fourteenth Amendment because the 
 laws of which we complain are not within the operation of 
 the Fourteenth Amendment; are not the laws to which the 
 Fourteenth Amendment refers. In other words it was not 
 intended by the Fourteenth Amendment to vest the judi- 
 ciary of the United States with the power of reviewing the 
 revenue laws of the States to ascertain their purpose or to 
 ascertain whether they were consistent with the Constitution 
 of the United States or not. Where is there a warrant or 
 authority for such an assertion ? You do not find it in the 
 language, it is not there ; " nor shall any State deny to any 
 person equal protection " — of what? " of the laws " against 
 crime ; with the respect to the enjoyment of property; in 
 relation to proceedings in courts of justice; laws relating 
 to conveyancing and the thousand and one subjects of which 
 laws treat? Not at all. " No State shall deny to any person 
 the equal protection of the laws " — all laws — any law by 
 which a State may deny to anv person equal protection with 
 some other person. Now the subject-matter of the law is a 
 matter of the utmost indifference. It is not that against 
 which the Constitution of the United States is to provide 
 protection. No matter what the subject may be it is as to 
 the law itself — no matter what it relates to. That law 
 must operate equally. Each person must find who comes 
 in contact with it, equal protection at its hands no matter 
 in what department of the law it may be found. 
 
28 
 
 The Chief Justice — You have a half hour left to com- 
 plete your argument. 
 
 Mr. Sanderson — Then I will submit only one or two 
 more suggestions for the purpose of showing that tax laws 
 are within the operation of that amendment. We have 
 already agreed that the negro is within the meaning of 
 that amendment, and now we have all agreed that the white 
 man is within the meaning of that amendment.* There- 
 fore we have made some progress. Therefore I will 
 suppose, if there should be anybody who still adheres 
 to the color line theory, that South Carolina should 
 pass laws imposing a capitation tax upon persons within 
 its jurisdiction, say a capitation tax of $5 upon negroes 
 and $2.50 upon white men, would my friends upon the 
 other side, who say that the negro is shielded and pro- 
 tected by the Fourteenth Amendment, say that law r 
 is not within it because it was a law made in the exer- 
 ercise of the taxing power ? I think not. Suppose they 
 should pass a law by which the property of white men, 
 when sold for taxes, should be sold subject to redemption 
 at any time within one year. Suppose that they should 
 provide that in the case of black men the property so sold 
 should be sold absolutely, and not be subject to redemp- 
 tion at all. Would that be a case within the Fourteenth 
 Amendment ? Yet that would be a law in relation to tax- 
 ation. Why, it is hardly necessary, may it please the 
 Court, to illustrate this matter further. Tax laws are the 
 very laws of all others which are within the operation of the 
 Fourteenth Amendment. It is by the exercise of the tax- 
 ing power that oppression and tyranny has been visited 
 upon peoples and countries from the earliest ages down to 
 the present time. It is the one element of despotism and 
 tyranny yet left in every government of republican forms. 
 
 Mr. Justice Bradley — In former times, and I think at 
 present in some States, it was customary to impose special 
 taxes on objects. On a mill it was ten dollars on every mill 
 
29 
 
 in the State, and on every carding machine, and so on. 
 Various articles were specially taxed. In New Jersey they 
 were called specialties, and like all other property so as- 
 sessed, valued at a valuation and taxed pro rata. And at 
 present I presume that railroad property and railroads are 
 in some States taxed specially so much, perhaps, on their 
 income as a commutation of all other taxation. Now, do 
 you contend — do your principles require you to contend — 
 that a State has lost its power of thus taxing different 
 species of property in special lines ? 
 
 Mr. Sanderson — Not at all. 
 
 Mr. Justice Bradley — That has not been particularly 
 dwelt upon, and I did not know but what you did. 
 
 Mr. Sanderson — Not at all. We admit to the fullest 
 legal extent the power of a State to classify property for the 
 purpose of taxation. We have never contended for any- 
 thing else, and if there is anything in this case which puts 
 us in that attitude before the Court, it has come from coun- 
 sel on the other side in misapprehending our views. We 
 do not deny the power of the State to classify property for 
 the purpose of taxation, but we do deny that the State of 
 California has exercised that power, except to a very limited 
 extent, by exempting growing crops and exempting credits 
 equal to the amount of debts. It has made no classification 
 whatever of the property, but it has declared, on the con- 
 trary, that all property shall be taxed according to its value. 
 
 Mr. Justice Bradley — That is their constitution, but I 
 am looking at the Fourteenth Amendment. 
 
 Mr. Sanderson — The Fourteenth Amendment simply re- 
 quires equality ; that the law shall bear equally upon all 
 persons and things upon which it bears at all; that is our 
 position. You may cast the burdens of taxation upon one 
 species of property to the exclusion of another; such a law 
 affords equal protection to all upon whom it operates. To 
 illustrate: Suppose the State should levy a specific tax of 
 twenty-five cents upon the cows of A and fifty cents upon 
 
30 
 
 the cows of B. The power of selecting a cow for the pur- 
 pose of taxation, and levying a tax upon it, we admit. What 
 we deny is that you can levy a tax of twenty-five cents on 
 the cows of A and at the same time levy a tax of fifty cents 
 on the cows of B. And the Fourteenth Amendment, in 
 declaring that no State shall deny to any person the equal 
 protection of the laws, means that. It means that wherever 
 the law touches different individuals, wherever such indi- 
 viduals stand in the same relation to the law, where the 
 conditions and the circumstances are the same, the rule of 
 law shall also be the same. In the example which your 
 honor just cited of taxation in New Jersey, you do not tax 
 the mill of A so much and the mill of B so much more, and 
 so on. 
 
 Mr. Justice Bradley — No ; but it might be taxed higher 
 than other property of the same character. 
 
 Mr. Sanderson — We hold that when an ad valorem system 
 of taxation is adopted, or a specific system, (you can tax by 
 either process,) you cannot impose a greater rate upon the 
 property of A than upon the property of B of the same 
 kind : nor can you adopt one mode of valuation in the one 
 case not resorted to in the other, if the result be the laying 
 of a greater burden upon one person than another in re- 
 spect to the same kind of property. Such legislation, we 
 say, is prohibited by the Fourteenth Amendment. 
 
 Mr. Justice Bradley — In other words when the tax be- 
 comes personal in an invidious sense. 
 
 Mr. Sanderson — Yes, it is then a discrimination not be- 
 tween different kinds of property but between different own- 
 ners of the same kind of property. To illustrate: this case 
 shows that the defendant in error is the owner of about 
 eight million acres of land granted by the United States to 
 enable it to construct its road. It was granted each alter- ' 
 nate section to the number of ten on each side of the road per 
 mile. Now the even sections are owned by natural persons. 
 We will assume that a natural person has put a mortgage on 
 
31 
 
 his to one-half its value. We will assume that the mortgage 
 of the railroad company is also one-half of its value. Now 
 these lands are of identical quality and quantity and value. 
 They are the same in all respects; you cannot distinguish 
 one from the other. I will assume for the purposes of my 
 illustration that it is the same, and that you cannot distin- 
 guish one from the other on the score of value. Now if in 
 ascertaining the value of his land the natural person is al- 
 lowed to deduct the face value of the mortgage upon it and 
 to be assessed for the remaiuder only, and the defendant is 
 denied a deduction and made to pay taxes upon the full 
 value of its land without regard to the mortgage ; then, I say 
 it is not a discrimination between different kinds of prop- 
 erty ; the property is identically the same — I say it is a dis- 
 crimination between different owners of the same kind of 
 property. 
 
 Mr. Justice Harlan — You therefore deny the right of 
 the State to tax the land of the individual citizen without 
 allowing him to deduct the mortgage, and at the same time 
 allow the railroad owning similar laud to deduct the 
 mortgage. 
 
 Mr. Sanderson — Of course I do; that is simply reversing 
 the question, if I understand it. It results not in a discrim- 
 ination between different kinds of property for the purpose 
 of taxation, but in a discrimination between different owners 
 of the same kind of property. There has been some confu- 
 sion of ideas brought into this case, arising from the fact 
 that counsel on the other side are all the time talking about 
 railroad property, and speaking of it as property mentioned 
 in the fourth section of the 13th article of the constitution 
 of the State. Now, railroad property is not referred to at 
 all except when you come to the question of assessment. It 
 says, " except as to property," not as to railroads, but as to 
 the property of railroad and other quasi public corporations. 
 It is not an exception as to railroads only — they alone are not 
 taken out of the general rule and set apart by themselves — 
 
32 
 
 but property of every kind and description. It is the prop- 
 erty of railroad and other quasi public corporations that is 
 taken out of the operation of the general rule. Now, what 
 are quasi public corporations ? There are other than rail- 
 road corporations which come within the operations of this 
 rule — toll-bridge companies, ferry companies, steamship 
 and hotel companies, corporations engaged in any kind of 
 business which, under the Granger cases, is affected b} T 
 a public use — elevator business, for instance. Take an 
 elevator erected in Chicago 
 
 Mr. Justice Harlan — How about telegraph companies in 
 California; are they not public corporations? 
 
 Mr. Sanderson — They are. 
 
 Mr. Justice Bradley — I regret to interrupt you, but it 
 might throw light on a question which has arisen in my 
 mind. What objection have you to these corporations being 
 taxed the full value of the property, with the permission or 
 privilege of charging the encumbrance or mortgage? Rail- 
 road companies and other large corporations, if they should 
 put a mortgage on their property and issue innumerable 
 bonds, it would be hard to find those bonds to tax ; whereas, 
 in case of private individuals and their bonds and mortgages, 
 it is easy to tax property by itself and the bond and mort- 
 gage by itself. The bond and mortgage is recorded, but 
 railroad bonds are scattered all over the world. Now, as a 
 mode of getting at the tax on the whole property, what is 
 the serious objection to charging it all to the railroad, and 
 permitting them to charge against the bondholders, the 
 amount which would be due from them on the tax; or is not 
 that done in this law or in this constitution ? 
 
 Mr. Sanderson — No, sir; and that is just what is the 
 matter. If we were allowed, I do not know but what we 
 might be willing to serve as a tax-gatherer, although I do 
 not know that the Government has any power to impose 
 upon us that duty. But the difficulty here is that this 
 
33 
 
 mortgage on the property represents an undivided interest 
 in it for the purposes of taxation. 
 
 Mr. Justice Bradley — That is in private property. 
 
 Mr. Sanderson — But of course we claim that the rule 
 should be extended to quasi public property. Each has an 
 interest in the laud. The mortgagor and the mortgagee 
 are tenants in common. 
 
 Mr. Justice Bradley — I understand that. 
 
 Mr. Sanderson — Now, in the case of natural persons, 
 each interest is taxed to each tenant, but in the case of quasi 
 public corporations there is no such division or deduction 
 made. There is no pretense of assessing the mortgage 
 against the mortgagee as in the other case. If there were 
 there might be no objection to the companies collecting the 
 tax and paying it over, and therefore no valid objection to 
 the law. 
 
 Mr. Justice Bradley — The constitution is put in the 
 brief in piecemeals — in fragments — and I have not seen the 
 whole of it. Is there no provision allowing the railroad 
 company or other quasi public corporation to charge against 
 the encumbrancer the tax? 
 
 Mr. Sanderson — No, sir; none whatever. There is in 
 the case of natural persons. In the case of a railroad com- 
 pany or other quasi public corporation no such question 
 could arise, for the obvious reason that the mortgage is not 
 taken into account at all; it is ignored as a false quantity 
 in measuring the liability of a railroad or other quasi public 
 company under the taxing system. 
 
 It has been suggested — and I call the attention of the 
 Court to it in my brief — that we have, in support of our 
 view in relation to this question of whether tax laws are 
 within the operation of the Fourteenth Amendment, a legis- 
 lative construction on the part of Congress in the re-enact- 
 ment of the Civil Rights bill after the Fourteenth Amend- 
 ment was adopted. In this re-enactment Congress inserted 
 " taxes," " licenses," " burthens," and " exactions " of every 
 5s. 
 
34 
 
 kind and description, although they were not in the Civil 
 Rights bill originally, and probably were omitted for the 
 very reason for which counsel contend upon the other side, 
 that State tax laws were not then within the operation of 
 the Federal Constitution. Had the bill originally contained 
 this provision as to taxes, &c, it doubtless would have been 
 unconstitutional, but upon the adoption of the Fourteenth 
 Amendment such a provision became constitutional in the 
 judgment of Congress, and that body in re-enacting the 
 bill industriously inserted this provision in relation to taxes, 
 licenses, burthens, and penalties of every kind, and thus 
 gave to the Fourteenth Amendment a legislative construc- 
 tion. 
 
 The admonition of the Chief Justice that the time allowed 
 me is about to expire, compels rne to, pass, in silence, sev- 
 eral questions involved in this case — as to whether the con- 
 stitution and laws of California discriminate between quasi 
 public corporations on the one hand, and natural persons 
 and corporations not quasi public on the other hand; as to 
 whether the system of taxation in California can be consid- 
 ered as a classification of property for the purpose of taxa- 
 tion ; as to whether such system can be sustained as valid 
 on the ground that in adopting it the State was in the ex- 
 ercise of the power to alter and amend general laws in rela- 
 tion to corporations ; as to whether the guaranty of due 
 process requires notice and an opportunity to be heard in 
 the exercise of the taxing power of the States, and as to 
 what is meant by the equal protection of the laws guaran- 
 teed to every person by the Fourteenth Amendment. I re- 
 gret that I am denied, by the lapse of time, an opportunity 
 to discuss these most important questions. Fortunately my 
 associates have left nothing to be said upon these points. 
 They are pretty fully discussed in my brief, which I hope 
 your honors will read. 
 
 In closing what little I have been allowed to say as to the 
 construction of the Fourteenth Amendment, T take the lib- 
 
35 
 
 erty of adding that I have always believed and, in opposition 
 to the able arguments of my learned friends upon the other 
 side, I still believe, that by these two clauses of the Four- 
 teenth Amendment the principles of Magna Charta and of 
 the declaration of American Independence have been incor- 
 porated into our National Constitution, as a just and whole- 
 some restriction upon the power of the States. I believe 
 that the clause in relation to due process means the same 
 as it means in Magna Charta — the same as it means in 
 every State constitution — the same as it means in the 
 Fifth Amendment to the Federal Constitution, except that 
 there it is a restriction upon national power, while in the 
 Fourteenth Amendment it is .a restriction upon State 
 power. I believe that the clause in relation to equal pro- 
 tection means the same thing as the plain and simple 
 yet sublime words found in our Declaration of Indepen- 
 dence : "All men are created equal." JSTot equal in phy- 
 sical or mental power; not equal in fortune or social posi- 
 tion ; but equal before the law. I do not believe that the 
 two clauses in relation to due process, found — one in the 
 Fifth and the other in the Fourteenth Amendment of the 
 Federal Constitution, mean the one more or less than the 
 other. I do not believe that, like the witches in Macbeth, 
 they 
 
 11 Palter with us in a double sense — 
 Keep the word of promise to the ear 
 And brake it to the hope." 
 
 As they speak the same language, so, in my belief, they 
 declare the same intent. I believe that these two clauses 
 were the one stone lacking to complete the edifice. I be- 
 lieve them to be the crowning glory of the Federal Con- 
 stitution, and I regret that there is any disposition in any 
 quarter to dim their lustre or fritter away their substance 
 by a narrow and emasculating construction of their lan- 
 guage. 
 
 I pass to the last question presented by the record, and 
 
36 
 
 that is as to whether the franchise of the defendant is tax- 
 able under State laws or not, or whether it is protected 
 from State taxation by the supremacy clause of the Consti- 
 tution of the United States. That is the provision of the 
 Constitution to which we appeal for the purpose of showing 
 that this franchise — the right to be, the right to exist, the 
 right to maintain and operate this road — is beyond the reach 
 of the taxing power of the State of California. 
 
 The Chief Justice — The State of California incorporated 
 the Southern Pacific Railroad Company, did it not ? 
 
 Mr. Sanderson — Yes, sir. 
 
 The Chief Justice — And by act of Congress there has 
 been some additional franchises or grants? 
 
 Mr. Sanderson — Yes, sir. 
 
 The Chief Justice — It is in the same condition that the 
 Central Pacific was ? 
 
 Mr. Sanderson — Yes, sir. 
 
 This corporation was originally organized under the laws 
 of the State of California for the purpose of building a 
 road from the Bay of San Francisco down the coast of Cali- 
 fornia to San Diego, and thence eastward to connect with a 
 road to be constructed from the Valley of the Mississippi to 
 the Pacific ocean. At what particular point the road would 
 cross the eastern boundary of the State could only be con- 
 jectured. Hence the company fixed no point for the south- 
 eastern terminus of its road. Congress passed an act 
 authorizing the company to connect with the Atlantic and 
 Pacific Railroad at a point on the eastern boundary of the 
 State of California where that road should cross, and thence 
 build a road by the most eligible route to the City of San 
 Francisco. 
 
 I will state here, because I do not want to be misunderstood, 
 that I do not claim that it is necessary to establish the prop- 
 osition that w T e are a national corporation in order to secure 
 the exemption which we claim. While I propose to establish 
 that fact if I can, yet it is not indispensable, because the 
 
37 
 
 franchise of a State corporation becomes exempt from State 
 taxation, as we claim, whenever such corporation has been 
 selected by the United States to^serve the Government in 
 the capacity of an agent or means of carrying into execution 
 certain governmental powers of Congress. 
 
 But it makes a clearer cut case, if I establish the proposition 
 that this corporation is not a mere local State corporation 
 endowed with a life for fifty years only, but a national cor- 
 poration, selected by the Government of the United States, 
 adopted by the Government of the United States, for the 
 purpose of constructing, maintaining, and operating a post 
 and military road for all time, and to that end endowed 
 with immortality. 
 
 It is not necessary in creating a corporation, that there 
 should be an} 7 express grant of corporate powers. If the 
 words " erect," " establish," " create," &c, are not employed 
 it makes no difference. It requires no magic words, no set 
 or formal phrase to erect a body men into a corporation. 
 It may be done by implication. It may be done as summa- 
 rialy as in the days ot chivalry the honor of knighthood was 
 conferred — "Kneel down and rise up Sir Knight." All that 
 it is necessary for the legislature to do is to confer some 
 right or some grant on a body of men by a collective name 
 which cannot be enjoyed except by the exercise of corpo- 
 rate faculties, and that alone, by implication, endows the 
 association with corporate powers, endows them with im- 
 mortality, and with all the other powers which may be nec- 
 essary to carry out the purpose of the grant. If the king 
 makes a grant of land to the " Men of Islington " without 
 words of succession they become a corporation, for other- 
 wise the grant would fail. 
 
 I do not contend that in thus adopting a State corporation 
 it is necessary to sever its connection with the State. It is 
 not necessary to sever it. A corporation may have a dual 
 existence; it may be Janus-faced — one face turned toward 
 the State, and the other toward the United States. We are 
 
38 
 
 citizens of the United States and of the State in which we 
 reside. So corporations may be corporations of the United 
 States as well as corporations of the State in which they 
 reside, or have their principal place of business. What 
 has this Court said in support of the proposition that one 
 sovereign may adopt a corporation created by another sov- 
 ereign ? In 2 Black will be found a case where a railroad 
 corporation created under the laws of Indiana proposed to 
 extend its road to Cincinnati, Ohio, and to that end applied 
 to the Legislature of Ohio for a grant of corporate powers 
 and privileges to enable it to cross the border line, and 
 penetrate Ohio to Cincinnati. The Legislature of Ohio, in- 
 tending to grant them all the powers that were requisite in 
 order to accomplish that purpose, undertook to pass, and 
 did pass, substantially, the same charter — the same law 
 under which they were incorporated in Indiana. Very well, 
 what was the result of that? Was this corporation there- 
 after a mere corporation of the State of Indiana, or did it, 
 without losing its character as a corporation of the State of 
 Indiana, become also a corporation of the State of Ohio, 
 and entitled to enjoy the franchises and powers conferred 
 upon it by that State ? The question came up before this 
 Court in 2 Black. The corporation brought a suit in its 
 capacity as an Ohio corporation against certain citizens of 
 the State of Indiana. They interposed a plea to the juris- 
 diction of the court claiming that the corporation was a 
 citizen of the State of Indiana, and, therefore, could not 
 sue the citizen of Indiana in a Federal court. Answering 
 to the plea, this Court said in substance : 
 
 This body of men have a dual or double existence, and 
 they are a corporation within the State of Indiana, under 
 the laws of Indiaira. They are also a corporation of the 
 State of Ohio, under the laws of the State of Ohio. But 
 they cannot maintain their action, because it is a joint 
 action on the part of both corporations, and, therefore, they 
 must seek their remedy in State and not in Federal courts. 
 
39 
 
 Now, if the State of Ohio could thus adopt a corporation 
 of the State of Indiana, why may not the United States 
 adopt a corporation of any State of the Union and put it to 
 its uses in carrying into execution laws constitutionally en- 
 acted by Congress for the purpose of carrying into effect 
 the powers of the Federal Government? Why not? Is 
 there any impediment in the way ? That is precisely what 
 was do.ne in the Central Pacific case. Now, what was the 
 condition of that case? The Government proposed to es- 
 tablish a post and military road by which the Mississippi 
 Valley should be connected with the Pacific Ocean. It 
 was in time of war. Armies were marching through the 
 Republic. Blows were being struck at the vitals of the na- 
 tion ; and it was important that this road should be con- 
 structed " on time," to use a railroad phrase. What did 
 they do ? They created a corporation at this end of the 
 line — none being here offering their services — to construct 
 and operate and maintain the road. Over at the other end 
 was a little State corporation organized originally for the 
 purpose of building a railroad from Sacrameuto to the east- 
 ern boundary of the State of California, a distance of about 
 one hundred miles. It was an insignificant corporation, 
 but it was headed by men of energy, zeal, and determina- 
 tion. Instead of creating a corporation at that end of the 
 road for the purpose of building it, what did Congress do? 
 They found a corporation, organized under the laws of Cal- 
 ifornia, standing ready and willing to be selected by the 
 Government of the United States as its agent, and they se- 
 lected it. In creating the Union Pacific they endowed it 
 with immortality. They annexed certain conditions to the 
 construction and management of the road ; required it to 
 be built of a certain gauge, and to be operated as one con- 
 tinuous line. They authorized it and other companies to 
 consolidate. They conferred upon it divers powers, such as 
 are usually conferred upon corporations ; and finally pro- 
 vided that all the grants to the Union Pacific should inure 
 
40 
 
 to the benefit of the Central Pacific upon their complying 
 with the conditions of the act. The Central Pacific was 
 authorized to do what ? To build a road from Sacramento 
 to the summit of the Sierra Nevada mountains? No. But to 
 build a road from San Francisco east until it met the Union 
 Pacific buiding west. In other words, it was authorized to 
 cross the boundary line between the State of California and the 
 Territory of Nevada ; authorized to pass through Nevada 
 into Utah, there to connect with the Union Pacific at Ogden. 
 It was authorized to build a road in its own State where it 
 had no authority to build under its charter. It was autho- 
 rized to build a road in the Territory of the United States 
 where it had no authority to build a road under its charter. 
 It was required to build and maintain a road for all time, 
 although it can exist only fifty 3'ears under the laws of Cali- 
 fornia. It was authorized to build and maintain a link in 
 a post and military road, created and established by the 
 Congress of the United States in the exercise of the powers of 
 the Government of the Uuited States over the subjects of 
 commerce and war. Now, will the gentlemen answer me 
 who it is, and wholt was, that granted the franchise which the 
 Central Pacific Railroad Company is exercising ? If they 
 exist as a corporation in Nevada to-day, they do not so exist 
 by virtue of their organization under the laws of the State 
 of California. If they exist as a corporation in Utah, it is 
 not by virtue of the laws of California. They exist there if 
 at all, by virtue of their charter from Congress in 1862 ; that 
 is their only charter; their only authority ; the only thing 
 to which they can appeal for protection in case their rights 
 be invaded. 
 
 Now, suppose the State of Nevada should come to the 
 conclusion that it would be better for that State to put a 
 stop to the Central Pacific Railroad. Suppose its legislature 
 should instruct its attorney general to institute proceedings 
 by quo warranto for the purpose of testing the right of the 
 Central Pacific Railroad Company to use the franchise it is 
 
41 
 
 using in the State of Nevada. Suppose the State courts of 
 Nevada should come to the conclusion that the corpo- 
 ration is a mere State corporation ; that it has no powers 
 or existence outside of the State of California ; should 
 come to the conclusion that it is without a charter or au- 
 thority to exist or exercise franchises in that State, and 
 should declare it to be an usurper, and should enjoin it 
 forever from exercising any of the powers conferred upon 
 it by the act of Congress. Suppose that to be done to- 
 morrow; what would the Central Pacific Railroad Com- 
 pany say in reply ? Would they appeal to their California 
 charter? No ! No ! California never has — never can — con- 
 fer upon them the power to exist and operate a road in Nevada 
 or Utah. To what, then, would they appeal ? To the act 
 of Congress of 1862, and to tliat alone. That is their shield 
 and the only shield that can afford them any protection against 
 such action. Could they not continue to operate the road, 
 notwithstanding such a judgment by a court of the State of 
 Nevada? Is this Court willing to admit that the State of 
 Nevada has the power, under the conditions stated, to 
 destroy — not retard, embarrass, delay, burden — but actually 
 destroy and prevent the operation of the laws by which Con- 
 gress has sought to carry into execution some of the well- 
 understood and acknowledged powers of the Federal Gov- 
 ernment. I imagine, if such a case should ever occur, it would 
 result in establishing the proposition that the Government of 
 the United States may select State corporations as well as 
 natural persons, and constitute them their agents for the 
 purpose of carrying into effect the lawful orders of the Gov- 
 ernment of the United States in the exercise of constitutional 
 powers. 
 
 The Chief Justice— Your time has expired. 
 
 Mr. Sanderson. — I want about five minutes more to call 
 attention to what this Court has said upon this question 
 away back in the time of the United States Bank, an insti- 
 tution created on the same principle that the Union Pacific 
 6s 
 
42 
 
 Railroad was created, except for banking purposes. Of the 
 $37,000,000 capital of that bank, only $7,000,000 was con- 
 tributed by the United States. That bank was created for 
 the purpose of carrying into execution certain measures in 
 relation to finance ; to assist in transmitting money north 
 and south, east and west. It was a mere financial agent, 
 insignificant in comparison with the objects sought by the 
 construction of railroads across this continent, by which a 
 pathway over hill, mountain and dale is made for the com- 
 merce of the world. Now, what did Maryland do in rela- 
 tion to that bank? It imposed a trifling tax on paper 
 which that bank required for the purpose of printing its 
 bills. Chief Justice Marshall said — not because it pre- 
 vented the bank from carrying out the purpose of Congress, 
 but simply because it tended to that end — the existence 
 of such a power in the States would be destruction to the 
 supremacy of the United States. That the power to tax the 
 means employed by wmich to carry into execution the con- 
 stitutional powers of the National Government,was a power 
 by which such means could be destroyed, and therefore 
 such a power could not be recognized as existing in the 
 States. 
 
 What did Ohio do? It levied a license tax upon the 
 operation of the branch banks in that State — precisely what 
 is being done by the city of Los Angeles in regard to this 
 railroad, making it pay a license tax on every locomotive 
 and car passing through that city. It was a tax on the 
 operations or business of the bank. What said this Court? 
 It said, in effect : If you can tax it one per cent, you can tax 
 it two hundred per cent., and thus make it impossible for it 
 to carry on the business for which it was created. There- 
 fore, we cannot recognize the existence of such a power; it 
 is suicidal, it is fatal to the supremacy of the Government 
 of the United States, and it cannot be tolerated or recog- 
 nized at all ; not because Congress has said so, but because 
 the people of the United States have said the Constitution 
 
43 
 
 of the United States shall be the supreme law of the land, 
 any law or ordinance of any State to the contrary notwith- 
 standing — the supreme law, in the presence of which all the 
 States must stand uncovered. 
 
 In regard to the railroad cases, in which you have de- 
 cided that the tangible, visible property of a railroad 
 corporation does not fall within the rule of the cases which 
 I have cited, I have to say that in the last of them you have 
 expressly decided that a tax on tangible property is not a 
 tax upon the right of a company to exist, the right or fran- 
 chise of the company to do and transact the business for 
 which it was created. By implication you hold that, had 
 the tax been laid on these franchises, it would have come 
 within the rule announced in United States Bank cases and 
 other cases cited in my brief. By implication as strong 
 and conclusive as positive affirmation, you have admitted 
 that, if it (the tax) be a tax on the franchise — the power of 
 the company to exist and transact business as a corpora- 
 tion — it is within the reason of the rule announced in Mc-- 
 Culloch's case, and therefore invalid. We rely upon this 
 implication. 
 
 One word in relation to an error into which, in my judg- 
 ment, this Court has fallen in respect to the power of Con- 
 gress in respect to the taxation of Federal agencies by the 
 States. Chief Justice Chase, in the first railroad tax case, 
 said : u In the absence of any legislation by Congress pro- 
 hibiting the taxing of this road or permitting it to be 
 taxed," &c. Here for the first time it is suggested by this 
 Court that it is in the power of Congress to control this ques- 
 tion of the taxation of agencies provided by the Govern- 
 ment for carrying into execution its powers ; that Congress 
 has the power to permit the States to tax them or to pro- 
 hibit the States from taxing them. I deny that Chief Jus- 
 tice Marshall ever conceded for a moment that the Fed- 
 eral Congress had any power on this subject; it was held 
 to be a purely constitutional question, and that the Consti- 
 
44 
 
 tution of the United States interposed between its agents 
 and the hostile action of the States the shield of its su- 
 premacy. I deny the power of Congress to yield and 
 resign to the States the supremacy of the United States. 
 If the States are debarred from taxing a given thing, it is 
 by virtue of the Constitution of the United States, and not 
 by virtue of an act of Congress. If they are allowed to tax 
 a given thing, it is because they are not forbidden by the 
 Constitution of the United States, and not because they are 
 not forbidden by Congress. 
 
 
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