LAMAR, J., dissenting.

223 U.S.

whether because they are only the premise for a general proposition of law, Prentis v. Atlantic Coast Line Co., 211 U. S. 210, 227, South Ottawa v. Perkins, 94 U. S. 260, Telfair v. Stead, 2 Cranch, 407, 418, or for any other reason, still there are many things that courts would notice if brought before them that beforehand they do not know. It rests with counsel to take the proper steps, and if they deliberately omit them, we do not feel called upon to institute inquiries on our own account. Laws frequently are enforced which the court recognizes as possibly or probably invalid if attacked by a different interest or in a different way. Therefore without prejudice to the question that we have suggested, when it shall be raised, we must conclude that so far as the present case is concerned the judgment must be affirmed.

Judgment affirmed.

MR. JUSTICE HUGHES Concurs in the result.

MR. JUSTICE LAMAR dissenting.

I dissent from the conclusions reached in the first branch of the opinion, because, in my judgment, the statute which is not a police but a revenue measure makes an arbitrary discrimination. It taxes some and exempts others engaged in identically the same business. It does not graduate the license so that those doing a large volume of business pay more than those doing less. On the contrary, it exempts the large business and taxes the small. It exempts the business that is so large as to require the use of steam, and taxes that which is so small that it can be run by hand. Among these small operators there is a further discrimination, based on sex. It would be just as competent to tax the property of men and exempt that of women. The individual characteristics of the owner do not furnish a basis on which to make a classification for

purposes of taxation. It is the property or the business which is to be taxed, regardless of the qualities of the owner. A discrimination founded on the personal attributes of those engaged in the same occupation and not on the value or the amount of the business is arbitrary. "A classification must always rest upon some difference which bears a reasonable and just relation to the act in respect to which the classification is proposed." Connolly v. Union Sewer Pipe Co., 184 U. S. 560.

NOBLE v. GALLARDO y SEARY.

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR PORTO RICO.

No. 147. Submitted December 22, 1911.-Decided January 22, 1912.

A court of equity being a novelty in Porto Rico, it would be unjust to apply its doctrines to the conduct of parties during the period that was not governed by any rules peculiar to chancery courts. The right to foreclose liens on crops under a mortgage executed in 1865, which is contested on the ground of laches, should be determined according to Spanish law as it prevailed during the time when laches is claimed to have taken place, and not according to the doctrines of our equity courts.

5 Porto Rico Fed. Rep. 10, reversed.

THE facts, which involve the construction of the law of liens on crops in Porto Rico, are stated in the opinion.

Mr. N. B. K. Pettingill for appellants.

There was no brief filed for the appellees.

MR. JUSTICE HOLMES delivered the opinion of the court.

This is a bill to foreclose a mortgage or lien executed in VOL. CCXXIII-5

Opinion of the Court.

223 U.S.

December, 1865, by which one Ramon Ruiz Gandia bound himself to pay a certain sum to William Noble with the proceeds of the first crops that might be ground from the next January at a certain plantation. The defendants pleaded laches apparent on the face of the bill and different statutes of limitation. The notarial document by which the lien was created is presented only in a translation which suggests doubts whether a further lien upon succeeding crops applied to this debt or only to another that is referred to and that was due to another man. There was also a petition for leave to intervene on the part of the representative of the other creditor, referring to documents not set out, but this was not acted upon except as affected by the disposition of the principal case. The court below expressed doubts whether any of the instruments bound the land, but held that in any event the plaintiffs were barred by laches and dismissed the bill.

As was observed by the court below, a court of equity is a novelty in Porto Rico. But, this being so, it would be unjust to apply its doctrines to the conduct of the parties during the many years that were not governed by any rule peculiar to chancery courts. The plaintiffs are not relying upon a merely equitable right; they are asserting a lien which they say the Spanish law gave them until it was barred by the statute of limitations. Whether the Spanish law had any doctrines of laches that in any aspect would be applicable to this case was not argued and we have not inquired. But it is to be observed that no change of position on the faith of, or seemingly influenced by, the quiescence of the plaintiffs and their predecessors is disclosed. It would be open to argument whether laches was made out, even under our law, sufficient to defeat the remedy usually given by equity to enforce a purely legal right; in other words whether mere lapse of time short of the statute of limitations, with nothing more, should defeat the foreclosure of a lien supposed still to

exist at law. But we express no opinion on that point because the matter must be decided by Spanish law, which prevailed during the time when the laches is supposed to have been shown.

The case is a hard one, no doubt, if the plaintiffs ultimately should prevail on the strength of the old law of prescription for mortgages and subsequent recognitions. It should be scrutinized with care, not only with reference to the property covered by the lien, but the nature of the recognitions during the time when the bond could not be denied, and the law. As we have intimated, the record leaves some doubt as to material facts, no argument was presented to us on behalf of the appellees, and upon the whole we think it will be more conducive to justice if the case be remitted to the District Court for further consideration. To that end the decree will be reversed.

Decree reversed without prejudice.

UNITED STATES v. WONG YOU.

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT.

No. 597. Argued January 12, 1912.-Decided January 22, 1912.

The Alien Immigration Act of February 20, 1907, c. 1134, § 36, 34 Stat. 898, 908, applies to Chinese laborers illegally coming to this country notwithstanding the special acts relating to the exclusion of Chinese.

To allow a subsequent general act its literal effect does not repeal, alter, or amend an earlier special law when the later law expressly provides that it shall not have that effect.

The omission from a later act of a clause contained in an earlier act on the same subject, excluding certain classes from its operation,

Argument for the United States.

223 U.S.

and inserting a provision applicable to such classes, signifies that Congress intended to include that class in the operation of the later act, notwithstanding the existence of other special legislation in regard thereto.

181 Fed. Rep. 313; 104 C. C. A. 535, reversed.

THE facts, which involve the construction of § 36 of the Alien Immigration Act of 1907 are stated in the opinion.

Mr. Assistant Attorney General Harr for the United States:

The application of the immigration laws to Chinese aliens is well settled. The immigration act of March 3, 1893, 27 Stat. 569, 571, provided: "That this act shall not apply to Chinese persons." But in the immigration act of March 3, 1903, 32 Stat. 1213, 1221, § 36, and in the act of February 20, 1907, 34 Stat. 898, 911, this clause was changed so as to read: "That this act shall not be construed to repeal, alter, or amend existing laws relating to the immigration or exclusion of Chinese persons or persons of Chinese descent." This change indicates the intent of Congress that the immigration act should apply to Chinese aliens, although not affecting the operation of the exclusion laws, and such has been the practical and judicial construction of this legislation.

In the opinion rendered June 24, 1903, Attorney General Knox held that the Alien Immigration Act of March 3, 1903, authorized the exclusion of a Chinese alien afflicted with a dangerous and contagious disease. 24 Op. Atty. Gen. 706, 708.

This view has been uniformly followed by the executive department and the courts. Ex parte Lee Shee Wing, 164 Fed. Rep. 506; Looe Shee v. North, 170 Fed. Rep. 566; Ex parte Li Dick, 174 Fed. Rep; 674; S. C, 176 Fed. Rep. 998; Haw Moy v. North, 183 Fed. Rep. 89.

No appearance for respondents.