party, then the cesser clause will only apply so far as the lien which can be exercised by the shipowner is commensurate with such liability." [1894] 1 Q. B. 617, 618. In short, in a charter party which contains a clause for cesser of the liability of the charterers, coupled with a clause creating a lien in favor of the shipowner, the cesser clause is to be construed, if possible, as inapplicable to a liability with which the lien is not commensurate. the vessel, and "were duly assigned and delivered to the Companhia Industrial do Brazil, and by them assigned and delivered to" the partnership of da Cruz & Filho, "who thereby became consignees of the cargo." Upon this state of facts, the rights of the shipowners against those consignees depended altogether on the contract created by the bills of lading, except so far as that contract referred to the charter party. Bags of Linseed (1861) 1 Black, 108, sub nom. Sears v. Wills, 17 L. ed. 35. As observed by Mr. Justice Peckham, when delivering a judgment of the court of appeals of the state of New York, in regard to a bill of lading containing a clause exactly like that in the bills of lading in the case at bar: "It would be a wide stretch to hold that by this language of the bill of lading, which plainly referred only to the provisions of the charter party as to the freight money, a consignee would become liable to demurrage if he accepted the cargo under such a bill." Dayton v. Parke, 142 N. Y. 391, 400, 37 N. E. 642. The necessary consequence is that the responsibility of the charterers to the shipowners for demurrage according to the charter party is not affected by the cesser clause. The other principal question is of the validity of the defense that the delay in discharging the cargo was caused by the acts of the public enemy, and not by any default of the charterers. Upon this question the courts below differed in opinion, the district court holding that the defense pleaded was a good one, and the circuit court of appeals holding that it In the case at bar, the provision of the charter party, which requires "the bills of lading to be signed as presented, without prejudice to this charter," while it obliges the master to sign bills of lading upon request of the charterers, does not mean that the bills of lading, or the consignee holding them, shall be subject to all the provisions of the charter, but only that the obligations of the charterers to the ship and her owners are not to be affected by the bills of lading so signed. Gledstanes v. Allen (1852) 12 C. B. 202. The bills of lading, as already mentioned, provide only for "paying freight for said lumber as per charter party dated 7th March, 1893, and average accustomed." They do not mention demurrage, or refer to any provisions of the charter, other than those concerning freight and average. It is well settled that a bill of lading in such a form does not subject an indorsee thereof, who receives the goods under it, to any of those other provisions of the charter. It does not give him notice of, or render him liable to, the specific provisions of the charter, which require a discharge of a certain quantity of lumber per day, or, in default thereof, the payment of a specific sum for a longer detention of the vessel; but he is enThis defense, as set up in the amended antitled to take the goods within a reasonable time after arrival, and is liable to pay dam-swer filed in the circuit court of appeals, is ages for undue delay in taking them, ac- that, when the vessel arrived at Rio Janeiro, cording to the ordinary rules of law which the owners of the cargo used all reasonable govern in the absence of specific agreement. diligence in and about receiving and removChappel v. Comfort (1861) 10 C. B. N. S. ing it; that the shipowners were prevented 802; Gray v. Carr (1871) L. R. 6 Q. B. 522; from discharging the cargo, and the responPorteus v. Watney (1878) L. R. 3 Q. B. Div. dents were prevented from receiving it, any 534, 537; Serraino v. Campbell [1891] 1 Q. sooner than they did, "by reason of the acts B. 2S3; Dayton v. Parke (1894) 142 N. Y. of the public enemy, to wit, certain vessels 391, 37 N. E. 642. of war which were then in the harbor of Rio Janeiro, and were engaged in firing upon the forts in said harbor, and making war upon the government of Brazil; and that the fir-* ing between said vessels of war and the said forts made it impossible to discharge the said cargo or to receive it from the said vessel, any sooner than it was discharged or received; that the said cargo was delivered according to the custom of said port of Rio Janeiro, and that the detention alleged in the libel, if any such there be, was caused by said acts of the public enemy, and not by any default of the respondents." In McLean v. Fleming (1871) L. R. 2 H. L. Sc. App. Cas. 128, on which the charterers relied at the argument in this court, the sole ground on which the indorsees of the bills of lading were held to be bound by the provisions of the charter party was that they were the persons who had originally authorized the chartering of the ship. See L. R. 2 H. L. Sc. App. Cas. 133, 134, 136; s. c. L. R. 6 Q. B. 559, 560. No such fact was pleaded in the case at bar. The only facts stated in the answer upon this point are that, after the vessel was fully laden, and long before the notice to the charterers that she was ready to discharge, bills Cof lading acknowledging that the lumber had been shipped by the respondents, and was to be delivered to their order or assigns, "they paying freight for the said lumber as per charter party," were signed by the master of was not. We are of opinion that, under a charter party expressed in such terms, the defense of vis major, as thus pleaded, affords a complete answer to the claim for demurrage. It is to be remembered that by the terms of this charter party it is only for "detention by default of" the charterers or their 112 agent that they agree to pay the amount of | 565, 567, Fed. Cas. No. 3,647, Chief Justice demurrage specified in the charter. A detention which is caused, not by any act of the shipowners or of the charterers, but wholly by the actual firing of guns from an enemy's ships of war upon the forts in the harbor, directly affecting the vessel and making the discharge of the cargo dangerous and impossible, cannot be considered as caused by "default" of the charterers, in any just sense of the word. In Towle v. Kettell (1849) 5 Cush. 18, the supreme judicial court of Massachusetts, in an opinion delivered by Mr. Justice Fletcher, with the concurrence of Chief Justice Shaw and Justices Wilde and Dewey, held that, under a similar provision in a charter party, the charterers were not liable for demurrage while the vessel was detained in quarantine by order of a foreign government. The circuit court of appeals, in support of the opposite conclusion, quoted from an opinion delivered by Mr. Justice Clifford, in the circuit court of the United States for the district of Massachusetts, the following passage: "The settled rule is, where the contract of affreightment expressly stipulates that a given number of days shall be allowed for the discharge of the cargo, such a limitation is an express stipulation that the vessel shall in no event be detained longer for that purpose, and that if so detained it shall be considered as the delay of the freighter, even where it was not occasioned by his fault, but was inevitable. Where the contract is that the ship shall be unladen within a certain number of days, it is no defense to an action for demurrage that the overdelay was occasioned by the crowded state of the docks, or by port regulations or government restraints." Davis v. Wallace (1868) 3 Cliff. 123, 131, Fed. Cas. No. 3,657. But in none of the authorities cited, either by the learned justice in that case, or by the circuit court of appeals in this, in support of this general statement, was the liability of the charterers for demurrage restricted to the case of their default. În Davis v. Wallace, indeed, their liability was so restricted; but the defense was a crowded state of the docks, and no question of port regulations or government restraints was before the court. Waite, speaking of a similar provision, said: "The respondents, in effect, agree that no more than forty-five running days should be occupied in loading and discharging the cargo, unless it was occasioned by some fault of the vessel, or some unusual and extraordinary interruption that could not have been anticipated when the contract was made." The case of Sixteen Hundred Tons of Nitrate of Soda (1894) 15 U. S. App. 369, 61 Fed. Rep. 849, 10 C. C. A. 115, in the circuit court of appeals for the ninth circuit, upon which these libellants much rely, falls far short of supporting their claim. In that case the clause in question was in the same words as in this case; the charterers sent the vessel, for the purpose of loading a cargo of nitrate of soda which they had purchased, to a port in Chili, during the existence of a civil war there, and while the port was in" the possession of the insurgents; the sellers declined for a time to deliver the cargo, because they feared that if the export duty, which by the law of Chili was payable upon all such cargoes, was paid by them to the insurgents, they might remain liable for it to the rightful government. It was held that the charterers were liable for the stipulated demurrage during the delay so occasioned. The court, speaking of the word "default" in the charter, said: "The most that can be claimed for its effect is that it excludes liability of the charterers for delay in loading or discharging, if the delay result from a sudden or unforeseen interruption or prevention of the act itself of loading or discharg ing, not occurring through the connivance or fault of the charterers." "But there was no interference upon the part of the Chilian gov ernment, or upon the part of any armed force, to prevent their obtaining possession of the cargo, or handling or moving the same, or placing it within reach of the vessel's tackle." 15 U. S. App. 374, 376, 61 Fed. Rep. 851, 853, 10 C. C. A. 118, 119. In the case at bar, the defense of vis major, as pleaded in the answer, was that the shipowners were prevented from discharging the cargo, and the charterers were prevented from receiving it, any sooner than they did, by reason of acts of the public enemy; to wit, certain vessels of war, then in the harbor of Rio Janeiro, were engaged in firing upon the forts in the harbor and in making war upon the government of Brazil: that the firing between those vessels and those forts made it impossible to discharge or to receive the cargo from the vessel any sooner than it was discharged or received; and that the detention alleged in the libel was caused by those acts of the public enemy, and not by any default of the charterers. In Thacher v. Boston Gaslight Co. (1874) 2 Low. Dec. 361, 363, Fed. Cas. No. 13,850, Judge Lowell, while following that decision in a similar case, said that the decisions in Towle v. Kettell and in Davis v. Wallace "are not inconsistent with each other; and they mean that the proviso intends to exonerate the charterer from delay occasioned by superior force acting directly upon the discharge of that cargo, and not from the indirect action of such force, which by its operation upon other vessels has caused a The vis major so pleaded was, in the words crowded state of the docks." And he dis- of opinions above cited, a "superior force acttinctly recognized that a failure of contract ing directly upon the discharge of the on the part of the charterer, "caused by a cargo;" "a direct and immediate vis ma direct and immediate vis major, or some- jor;" an "unusual and extraordinary interthing like it," would not be a "default" with-ruption that could not have been anticipated in the meaning of the charter party. In Davis v. Pendergast (1879) 16 Blatchf. when the contract was made;" "a sudden and unforeseen interruption or prevention of the act itself of loading or discharging, not occurring through the connivance or fault* of the charterers;" and an "interference on the part of an armed force, preventing the handLing or moving of the cargo." Upon principle, and according to the general current of authority, the detention alleged was not caused by default of the charterers, and did not render them responsible for demurrage under this charter party. The circuit court of appeals therefore erred in sustaining the exception, in the nature of a demurrer, to that article of the answer which set up the defense of vis major; and for this reason its decree for the libellants must be reversed. The decree of the district court, which dismissed the libel, must also be reversed, and the case remanded to the district court, in order that both parties may have an opportunity to introduce proofs upon the issue presented by that article. In the brief of the libellants in this court, it is suggested that the allegations of that article of the answer were not in fact true; and reference is made to the master's deposition, taken after the delivery of the principal opinion in the circuit court of appeals, in which he testified that during all the time that the vessel lay at the wharf, and until the completion of the discharge, there was no firing in the harbor, or other act of hostilities, which prevented her discharge of the cargo or its reception by the consignees. But on the same page of the brief it is admitted that "this question having been heard on the exception to the sufficiency of the defense, the question as to the truth of the allegations of the answer was not before the court." And this is conclusively established by its opinions and decrees. The principal opinion shows that it took up, in the first instance, the questions of law raised by the exceptions to the answer, because their determination might relieve the parties from the delay and expense of introducing proof. 35 U. S. App. 620, 69 Fed. Rep. 747, 16 C. C. A. 381. By the decree thereupon made and set out in the record, the third exception, as well as the second, was sustained upon the ground that the article of the answer to which it related was "insufficient in the law to constitute a defense;" and the fourth exception was overruled. In short, the defenses of the cesser clause and of vis major were both held to be insufficient as matter of law, so that no evidence in support of either of them was competent, and no evidence to contradict either was necessary or material. | App. 608, 69 Fed. Rep. 747, 16 C. C. A. 381), and it remains to be considered whether the defenses of payment and accord and satisfaction are sustained by the proofs;" and then proceeded, upon an examination of the proofs, to hold that those defenses were not sustained as to the claim for demurrage, and to enter a decree for the libellants in accord. ance with its former opinion. 62 U. S. App. 368, 91 Fed. Rep. 543, 33 C. C. A. 663. The questions of payment, and of accord and satisfaction, need no extended notice. They are pure questions of fact, depending on conflicting evidence and on the peculiar circumstances of the case; upon which, had they been the only questions presented by the record, a writ of certiorari would not have been granted; which appear to this court, upon examination of the proofs, to have been rightly decided by the circuit court of appeals; and which it would serve no useful purpose to discuss. But for the reasons above stated, in considering the effect of the defense of vis ma jor The decrees of the Circuit Court of Appeals and of the District Court are reversed, and the cause is remanded to the District Court for further proceedings in accordance with the opinion of this court. Mr. Justice McKenna was not present at the argument, and took no part in the decision of this case. (179 U. S. 89) AMERICAN SUGAR REFINING COMPANY, Piff. in Err., บ. STATE OF LOUISIANA et al. Writ of error-motion to dismiss-constitutional law-discrimination in taxes as a denial of equal protection of laws. 1. 2. A motion to dismiss a writ of error to a state court must be denied where the protection of the 14th Amendment is invoked in the answer, and the defense is, at least, plausible upon its face. A manufacturer engaged in the business of refining sugar is not denied the equal protec tion of the laws because of the discrimination made by La. Const. 1879, art. 206, imposing a license tax upon manufacturers engaged in such business, but exempting from the tax those who refine the products of their own plantations. [No. 38.] vember 5, 1900. The only questions of fact left open for the introduction of proofs were those of pay- Submitted October 10, 1900. Decided Noment, and of accord and satisfaction, presented by the remaining article of the answer. That the circuit court of appeals understood such to be the condition of the case is apparent from its supplemental opinion, after proofs had been taken, in which it observed that "most of the questions arising upon this appeal have been disposed of by this court upon a former occasion (35 U. S. WRIT OF ERROR to the Supreme sustaining the constitutionality of a license tax on manufacturers engaged in the business of refining sugar. Affirmed. See same case below, 51 La. Ann. 562, 25 So. 447. Statement by Mr. Justice Brown: This was a petition filed in the civil district court for the parish of Orleans by John Brewster, tax collector, against the American Sugar Refining Company, a corporation engaged in the business of refining sugar and molasses, to recover the sum of $3,500 per year as a state license tax for the years 1892 to 1897, inclusive, alleged to be due under a statute of Louisiana enacted in 1890, entitled "An Act to Levy, Collect, and Enforce Payment of an Annual License Tax upon all Persons, Associations of Persons, or Business Firms and Corporations Pursuing any Trade, Profession, Vocation, Calling, or Business, Except Those Who are Expressly Excepted from Such License Tax by Articles 206 and 207 of the Constitution. By the 9th section it is enacted "that for carrying on each business of refin ing sugar and molasses the license shall be based on the gross annual receipts of each person, association of persons, business firm or corporation engaged in said business as follows: Provided, that this section shall not apply to planters and farmers grinding and refining their own sugar and molasses; and provided, further, that it shall not apply to those planters who granulate syrup for other planters during the rolling season.' First class. When the said gross actual receipts are $2,500,000 and over the license shall be $3,500. This act was passed in pursuance of article 206 of the state Constitution of 1879, which reads as follows: The court, being of opinion that the business carried on by the defendant company was that of a manufacturer, dismissed the petition. On appeal to the supreme court, that court was of opinion that the defendant was not entitled to exemption under article 207 of the Constitution (not now in ques tion), which exempted certain manufacturers, and ordered a judgment for $3,500, with* interest and costs, for the license tax for the year 1897. But, upon the attention of the court being called by a petition for rehearing to article 206 of the Constitution, above quoted, that court delivered a new opinion to the effect that the defendant was not a manufacturer, and therefore not entitled to an exemption by article 206, and that the exemption of planters who refine their own sugar did not deprive the defendant of the equal protection of the laws. It further revised its judgment, and held the state entitled to recover for each of the years from 1892 to 1897, and rendered judgment for the sum of $3,500, for each of said years. Whereupon defendant sued out a writ of error from this court. Messrs. John E. Parsons, Charles Carroll, and Joseph W. Carroll for plaintiff in error. Mr. E. Howard McCaleb for defendants in error. Mr. Justice Brown delivered the opinion of the court: Motion was made to dismiss this writ of error upon the ground that the case did not present a Federal question, inasmuch as the question of illegal discrimination "was not in the record for the purpose of obtaining the principal matter litigated, but was put this writ of error." As, however, the protec tion of the 14th Amendment was invoked in the answer, and, as this defense is at least miss must be denied; but, the case having alplausible upon its face, the motion to disso been submitted upon the merits, we shall proceed to discuss the constitutional objec tion to the act. "Art. 206. The general assembly may levy a license tax, and in such case shall graduate the amount of such tax to be collected from the persons pursuing the several trades, professions, vocations, and callings. All persons, associations of persons, and corporations pursuing any trade, profession, business, or calling may be rendered liable to such tax, except clerks, laborers, clergymen, school teachers, those engaged in mechanical, agricultural, horticultural, and mining pursuits and manufacturers, other than those of distilled, alcoholic, or malt liquors, It is scarcely necessary to say that the tobacco and cigars, and cotton-seed oil. No political corporation shall impose a greater question whether the defendant were a manlicense tax than is imposed by the general as-ufacturer within the meaning of the Louisi ana Constitution is one dependent upon the sembly for state purposes." construction of that Constitution, and that the interpretation given to it by the state supreme court, raising, as it does, no question of contract, is obligatory upon this court; but as that court held the defendant liable upon the ground that it was engaged in the business of refining sugar, the further question is presented whether it is denied the equal protection of the laws because of the exemption from the tax of planters grinding and refining their own sugar and molasses. Defense: First, that the business of refining sugar and molasses is exempt from the payment of any license tax, because it is one of those manufactures enumerated in article 206 as entitled to exemption. Second, that the act of 1890 "violates the Constitution of the United States, and is void in so far as it attempts to impose a license tax on this defendant, because said act denies to this defendant the equal protection of the laws of the state, inasmuch as said act does not impose equally a license tax on all persons engaged in the business of refining sugar and molasses, but discriminates in favor of planters who refine their own sugar and molasses, and in favor of planters who granulate syrups for other planters during the rolling season." The act in question does undoubtedly discriminate in favor of a certain class of refiners, but this discrimination, if founded upon a reasonable distinction in principle, is valid. Of course, if such discrimination were purely arbitrary, oppressive, or capricious, and made to depend upon differences of color, race, nativity, religious opinions, political *93 they use exclusively in the preparation or making up of medicines for sick, lame, or diseased persons." Another paragraph of the same section (64) exempts distillers who sell the products of their own stills, from a tax as wholesale dealers in liquors. While no question of the power of Congress is involved, these instances show that its general policy does not differ from that of the act in question, and that the discrimination is based upon reasonable grounds. affiliations, or other considerations having | ries, as to wines or spirituous liquors which no possible connection with the duties of citizens as taxpayers, such exemption would be pure favoritism, and a denial of the equal protection of the laws to the less favored classes. But from time out of mind it has been the policy of this government, not only to classify for purposes of taxation, but to exempt producers from the taxation of the methods employed by them to put their products upon the market. The right to sell is clearly an incident to the right to manufacture or produce, and it is at least a question So, too, this court has had repeated occafor the legislature to determine whether any- sion to sustain discriminations founded upthing done to prepare a product most per- on reasons much more obscure than this. fectly for the needs of the market shall not Thus, in Richmond, F. & P. R. Co. v. Richbe treated as an incident to its growth or mond, 96 U. S. 521, 24 L. ed. 734, a municiproduction. The act is not one exempting pal ordinance was sustained declaring that planters who use their sugar in the manu- no car or vehicle of any kind "belonging to or facture of articles of a wholly different de- used by the Richmond, Fredericksburg, & Poscription, such as confectionery, preserves, tomac Railroad Company shall be drawn or or pastry, or such as one which should exempt propelled by steam" upon a certain street, the farmer who devoted his corn or rye to the although no other company was named in the making of whisky, while other manufactur- ordinance, the court held that as no other ers of these articles were subjected to a tax. corporation had the right to run locomotives A somewhat different question might arise in that street, no other corporation could be in such case, since none of these articles are in a like situation, and that the ordinance, the natural products of the farm, such while apparently limited in its operation, products only becoming useful by being com- was general in its effect, as it applied to all mingled with other ingredients. Refined who could do what was prohibited. "All sugar, however, is the natural and ultimate laws should be general in their operation, but product of the cane, and the various steps all places within the same city do not necestaken to perfect such product are but inci-sarily require the same local regulation. dent to the original growth. With reference to the analogous right of importation, it was said by this court at an early day, in Brown v. Maryland, 12 Wheat. 419, 6 L. ed. 678, that the right to sell was an incident to the right to import foreign goods, and that a license tax upon the sale of imported goods, while still in the hands of the importer in their original packages, was in conflict with that provision of the Constitution which prohibits a state from laying an impost or duty upon imports. Congress, too, has repeatedly acted upon the principle of the Louisiana statute. Thus, after having imposed by act of August 2, 1813, a license tax upon the retailers of wines and spirits, for the purpose of providing for the expense of the war with Great Britain, it was further enacted by an act of February 8, 1815 (3 Stat. at L. 205, chap. 40), that it should not be construed "to extend to vine dressers who sell at the place where the same is made, wine of their own growth; nor shall any vine dresser for vending solely at the place where the same is made, wine of his own growth, be compelled to take out license as a retailer of wine." So, too, in the internal revenue act of 1862 (12 Stat. at L. 432, chap. 119), a license tax was imposed (8 64) upon retail dealers in all goods, wares, and merchandise, but with a proviso, in § 66, that the act should not be construed "to require a license for the sale of goods, wares, and merchandise made or produced and sold by the manufacturer or producer at the manufactory or place where the same is made or produced; to vinters who sell, at the place where the same is made, wine of their own growth; nor to apotheca-' While locomotives may with very great propriety be excluded from one street, or even from one part of a street, it would be sometimes unreasonable to exclude them from all." In Pembina Consol. Silver Min. & Mill. Co. v. Pennsylvania, 125 U. S. 181, 31 L. ed. 650, 2 Inters. Com. Rep. 24, 8 Sup. Ct. Rep. 737, it was decided that the equal protection clause did not prohibit a state from requiring, for the admission within its limits of a corporation of another state, such conditions as it chooses, though in that case it exacted a license tax from such corporations, which it did not exact from corporations of its own creation. In Missouri P. R. Co. v. Mackey, 127 U. S. 205, 32 L. ed. 107, 8 Sup. Ct. Rep. 1161, it was said that this clause did not forbid special legislation, "and when legislation applies to particular bodies or associations, imposing upon them additional liabilities, it is not open to the objection that it denies to them the equal protection of the laws, if all persons brought under its influence are treated alike under the same conditions." To the same effect is Walston v. Nevin, 128 U. S. 578, 32 L. ed. 544, 9 Sup. Ct. Rep. 192. The power of taxation under this provision was fully considered in Bell's Gap R. Co. v. Pennsylvania, 134 U. S. 232, 33 L. ed. 892, 10 Sup. Ct. Rep. 533, in which it was said not to have been intended to prevent a state from changing its system of taxation in all proper and reasonable ways. It may, if it chooses, exempt certain classes of property altogether; may impose different specific taxes upon different trades or professions; may vary the rates of excise upon various products; may tax real and personal estate |