403 Messrs. G. B. Webster, Hiram J. Grover, and Hamilton Grover for plaintiff in error. Messrs. Robert E. Collins, David Goldsmith, and H. P. Rodgers for defendant in error. *Mr. Justice Shiras delivered the opinion of the court: jurisdiction, where the record is before the Supreme Court on the return to a rule to show cause and full argument has been had, the writ of certiorari is issued, and the return to the rule is allowed to stand as a return to the writ, and judgment thereupon reversed, and the cause remanded, with a direction to take jurisdiction and dispose of the cause. [No. 535.] This was a suit brought in the circuit court of the city of St. Louis by August Heman to enforce payment of a special tax bill issued in his favor by that city for the con- Argued and Submitted March 18, 1901. Destruction of a sewer in what is called Euclid avenue sewer district. The plaintiff recov ered a judgment, and the defendants, who were owners of property assessed for the cost of making said sewer, appealed to the supreme court of Missouri, where the judgment of the trial court was affirmed, the case being reported as Heman v. Allen, 156 Mo. 534, 57 S. W. 559,2 and after such affirmance the defendant brought the case to this court by writ of error. The only question which is open to our consideration upon this record is the contention of the plaintiff in error that the provisions of the charter of the city of St. Louis, the ordinances of the municipal assembly, the contract with the defendant in error, made thereunder, and the assessment against the property of the plaintiff in error for the cost of the construction of said sewer, were null, void, and of no effect for the reason that they were repugnant to the 14th Amendment of the Constitution of the United States, as construed and applied in the case of Norwood v. Baker, 172 U. S. 269, 43 L. ed. 443, 19 Sup. Ct. Rep. 187. This contention has been considered and determined, under a similar state of facts, by this court, in the recent case of French v. Barber Asphalt Paving Co. in error to the supreme court of the state of Missouri (181 U. S. 324, ante, 625, 21 Sup. Ct. Rep. 625), and upon the authority of that case the judgment of the Supreme Court of Missouri is affirmed. For dissenting opinion, see Cass Farm Co. v. Detroit, 181 U. S. —, ante, 645, 21 Sup. Ct. Rep. 645. (181 U. S. 277) V. CITY OF NEW ORLEANS. cided April 29, 1901. the United States Circuit Court of Ap ETITION for certiorari or mandamus to peals for the Fifth Circuit to review a deci- Statement by Mr. Chief Justice Fuller: This was a petition for a writ of certiorari requiring the United States circuit court of appeals for the fifth circuit to certify to this court for its review and determination the case of American Sugar_Ref. Co. v. New Orleans, No. 920, Nov. Term 1899, 43 C. C. A. 393, 104 Fed. Rep. 2, or in the alternative for a writ of mandamus to command the judges of said court to hear, try, and adjudge said cause. The petition alleged that on June 14, 1899, the city of New Orleans brought suit by rule in a civil district court for the parish of Orleans, Louisiana, against the American Sugar Refining Company for a city license tax for the year 1899 for the sum of $6,250, with interest thereon, claiming said license tax solely by virtue of the laws of Louisiana and an ordinance of the city of New Orleans, as an occupation tax for carrying on the business of refining sugar and molassess in that city; that the American Sugar Refining Company petitioned the district court for an order removing the suit to the circuit court of the United States for the eastern district of Louisiana, the petition for removal being based solely upon the ground that the defendant was a corporation of New Jersey, and the plaintiff a corporation of Louisiana; which petition was COM-granted, the bond required given, a certified copy of the record filed, and the suit docketed in the circuit court. That thereafter, by order of the court, the city reformed its pleadings in some parts, "the only difference of substance between said reformed petition and the original rule being that said reformed petition omitted the formal prayer for a recognition of a lien and privilege on defendant's property, and for an injunction against defendant carrying on its business." That the defendant answered: "First. That it was a manufacturer, and as such exempt from license taxation under article 229 of the Constitution of the state of Louisiana of 1898, which exempts all manufacturers from state and municipal li cense taxation, except those of distilled, al coholic, and malt liquors, tobacco, cigars, | Sup. Ct. Rep. 35; Press Pub. Co. v. Monroe, and cottonseed oil; and 164 U. S. 105, 41 L. ed. 367, 17 Sup. Ct. Rep. "Second. That the ordinance of the city 40; Ex parte Jones, 164 U. S. 691, 41 L. of New Orleans under which said tax was ed. 601, 17 Sup. Ct. Rep. 222. These, and claimed was based upon act No. 171 of the many other cases to the same effect, related general assembly of Louisiana of 1898, and to the appellate jurisdiction of this court that the said act was in contravention of over the court of appeals under the 6th sec the 14th Amendment to the Constitution of tion of the judiciary act of March 3, 1891, the United States, in that it exempted from but they necessarily involved consideration license taxation planters and farmers who of our jurisdiction under the 5th section, refine their own sugar and molasses, and and that of the court of appeals under the thereby sought to make an illegal discrim- 6th section. By the 5th section appeals or ination against those sugar refiners who writs of error may be taken from the diswere not planters and farmers, and denied trict or circuit courts direct to this court to defendant, as one of such sugar refiners, in any case that "involves the construction the equal protection of the laws of the state or application of the Constitution of the of Louisiana; and that the said act and city United States;" "in which the constitutionordinance based thereon were therefore un-ality of any law of the United States, or the constitutional and void as to defendant." validity or construction of any treaty made That the suit was tried before the court under its authority, is drawn in question;" and a jury, and evidence was adduced show-"in which the Constitution or law of a state ing the nature and character of defendant's is claimed to be in contravention of the Conbusiness in support of its claim that it was stitution of the United States." Section 8 a manufacturer, which evidence of the de- provides that the circuit courts of appeals fendant was uncontradicted in every partic- shall exercise appellate jurisdiction to reular; and also showing that the gross re- view the final decisions of the district and ceipts of defendant's business were of such circuit courts "in all cases other than those amount that, if liable at all for license tax, provided for in the preceding section of this it was liable for the sum claimed; and de- act, unless otherwise provided by law, and fendant also filed an exception of no cause the judgments or decrees of the circuit courts of appeals shall be final in all cases in which the jurisdiction is dependent entirely upon the opposite parties to the suit or controversy being aliens and citizens of the United States or citizens of different states." The jurisdiction referred to is the jurisdiction of the circuit court, and as the judgment of the court of appeals is made final in all cases in which the jurisdiction of the circuit court attaches solely by reason of diverse citizenship, it follows that the court of appeals has power to review the judgment of the circuit court in every such case, notwithstanding constitutional questions may have arisen after the jurisdiction of the circuit court attached, by reason whereof the case became embraced by of action. That at the close of the evidence defendant requested the court to direct the jury to render a verdict in its favor, which the court refused to do, and charged in plaintiff's favor, and plaintiff obtained a verdict and judgment. On defendant's application a bill of exceptions was duly settled and signed by the presiding judge; and the case carried on error to the United States circuit court of appeals for the fifth circuit. The cause was there heard, and on May 29, 1900, judgment was rendered by the circuit court of appeals dismissing the writ of error on the ground of want of jurisdiction. 43 C. C. A. 393, 104 Fed. Rep. 2. Petitioner thereupon applied for a rehearing, which was denied November 20, 1900. Petitioner prayed for the writ of certiorari, or for the writ of mandamus as before stated. Leave was granted to file the petition, and a rule to show cause was thereupon entered, to which due return was made. Messrs. Joseph W. Carroll and Charles Carroll for petitioner. Mr. Samuel L. Gilmore submitted the case for respondent. Mr. Chief Justice Fuller delivered the opinion of the court: The jurisdiction of the circuit court rested on diverse citizenship, and not on any other ground, and had the circuit court of appeals gone on and decided the case, its decision would have been final, and our interposition could only have been invoked by certiorari. This was so notwithstanding one of the defenses was the unconstitutionality of the ordinance. Colorado Cent. Consol. Min. Co. v. Turck, 150 U. S. 138, 37 L. ed. 1030, 14' section 5. Thus, it was held in Loeb v. Columbia Twp. 179 U. S. 472, 45 L. ed., 21 Sup. Ct. Rep. 174, where the jurisdiction of the circuit court rested on diverse citizenship, but the state statute involved was claimed in defense to be in contravention of the Constitution of the United States, that a writ of error could be taken directly from this court to revise the judgment of the circuit court, although it was also ruled that the plaintiff might have carried the case to the circuit court of appeals, and that, if a final judgment were rendered by that court against him, he could not thereafter have invoked the jurisdiction of this court directly on another writ of error to review the judgment of the circuit court. The intention of the act in general was that the appellate jurisdiction should be distributed, and that there should not be two appeals, but in cases where the deci. sions of the courts of appeals are not made final it is provided that "there shall be of right an appeal or writ of error or review *280 of the case by the Supreme Court of the United States where the matter in controversy shall exceed one thousand dollars besides costs." [§ 6.] And the right to two appeals would exist in every case (the litigated matter having the requisite value), where the jurisdiction of the circuit court rested solely on the ground that the suit arose under the Constitution, laws, or treaties of the United States, if such cases could be carried to the circuit courts of appeals, for their decisions would not come within the category of those made final. tution or law of a state is claimed to be in contravention of the Constitution of the United States, the circuit court of appeals may certify the constitutional or treaty question to this court, and proceed as thereupon advised, or may decide the whole case; but language should not have been used susceptible of the meaning that in cases where the jurisdiction below is invoked on the ground of diverse citizenship the circuit court of appeals might decline to take jurisdiction, or, in other words, might dismiss the appeal or writ of error for want of jurisdiction. The mere fact that in such a tions referred to in 5 may have so arisen that a direct resort to this court might be had does not deprive the court of appeals of jurisdiction, or justify it in declining to exercise it. As, however, a case so arises where it ap-case one or more of the constitutional quespears on the record, from plaintiff's own statement, in legal and logical form, such as is required by good pleading, that the suit is one which does really and substantially involve a dispute or controversy as to a right which depends on the construction or application of the Constitution or some law or treaty of the United States (Little York Gold-Washing & Water Co. v. Keyes, 96 U. S. 199, 24 L. ed. 656; Blackburn v. Portland Gold Min. Co. 175 U. S. 571, 44 L. ed. 276, 20 Sup. Ct. Rep. 222; Western U. Teleg. Co. v. Ann Arbor R. Co. 178 U. S. 239, 44 L. ed. 1052, 20 Sup. Ct. Rep. 867); and as those cases fall strictly within the terms of section 5, the appellate jurisdiction of this court in respect of them is exclusive. If plaintiff, by proper pleading, places the jurisdiction of the circuit court on diverse citizenship, and also on grounds independent of that, a question expressly reserved in Colorado Cent. Consol. Min. Co. v. Turck, 150 U. S. 138, 37 L. ed. 1030, 14 Sup. Ct. Rep. 35,-and the case is taken to the court of appeals, propositions as to the latter grounds may be certified; or, if that course is not pursued and the case goes to judgment (and the power to certify assumes the power to decide) an appeal or writ of error would lie under the last clause of section 6, because the jurisdiction would not depend Bolely on diverse citizenship. Union P. R. Co. v. Harris, 158 U. S. 326, 39 L. ed. 1003, 15 Sup. Ct. Rep. 843. In Carter v. Roberts, 177 U. S. 496. 44 L. ed. 861, 20 Sup. Ct. Rep. 713, we said: "When cases arise which are controlled by the construction or application of the Constitution of the United States, a direct appeal lies to this court, and if such cases are carried to the circuit courts of appeals those courts may decline to take jurisdiction, or, where such construction or application is involved with other questions, may certify the constitutional question and afterwards proceed to judgment, or may decide the whole case in the first instance." These observations perhaps need some qualification. Undoubtedly where the jurisdiction of the circuit court depends solely on diverse citizenship, and it turns out that the case involves the construction or application of the Constitution of the United States, or the constitutionality of a law of the United In the case at bar the jurisdiction rested on diverse citizenship. Two defenses were interposed, one of which asserted exemption from the license tax, and the other denied the constitutionality of the legislation un der which the tax was imposed. • Both de-* fenses were overruled, and judgment rendered for the plaintiff. The case was then carried on error to the circuit court of appeals, which gave judgment dismissing the writ of error for want of jurisdiction. In this we think the court erred, and that a certiorari should issue that its judgment to that effect may be revised. As the record is before us on the return to the rule hereinbefore entered, and full argument has been had, it will be unnecessary for another return to be made to the writ, or further argument to be submitted. Writ of certiorari to issue; return to rule to stand as return to writ; judgment thereupon reversed and cause remanded with a direction to take jurisdiction and dispose of the cause. Mr. Justice Gray concurred in the result. (181 U. S. 283) FRANK M. FAIRBANK, Plff. in Err., บ. UNITED STATES. Constitutional law-stamp tax-prohibiting tax on exports. 2. 1. The practical construction of a constitutional provision by legislative action is entitled to no force except in cases of doubt. The stamp tax imposed on a foreign bill of lading by the act of Congress of June 13, 1898 (30 Stat. at L. 451, chap. 448), § 6, is in substance and effect equivalent to a tax on the articles included in that bill of lading, and therefore a tax or duty on exports, prohibited by U. S. Const. art. 1, § 9. [No. 226.] States, or the validity or construction of a Argued December 13, 1900. Decided April treaty, is drawn in question, or the Consti 15, 1901. *284 IN ERROR to the District Court of the And this proviso at the end of the sched "Provided, That the stamp duties imposed United States for the District of Minne-ule: sota to review a conviction for issuing an export bill of lading without an internal reve-by the foregoing schedule on manifests, bills nue stamp. Reversed. Statement by Mr. Justice Brewer: On March 7, 1900, plaintiff in error was convicted in the district court of the United States for the district of Minnesota on the charge of issuing, as agent of the Northern Pacific Railway Company, an export bill of lading upon certain wheat exported from Minnesota to Liverpool, England, without affixing thereto an internal revenue stamp, as required by the act of June 13, 1898 (30 Stat. at L. 448, chap. 448). Upon that conviction he was sentenced to pay a fine of $25. His contention on the trial was that that act, so far as it imposes a stamp tax on foreign bills of lading, is in conflict with article 1, § 9, of the Constitution of the United States, which reads: "No tax or duty shall be laid on any articles exported from any state." This contention was not sustained by the trial court, and this writ of error was sued out to review the judgment solely upon the foregoing constitutional question. Section 6 of the act reads: of lading, and passage tickets shall not ap- Mr. C. W. Bunn for plaintiff in error. in error. Messrs. George A. King and William B. King for other interested parties. Mr. Justice Brewer delivered the opinion of the court: The constitutionality of an act of Congress is a matter always requiring the most careful consideration. The presumptions are in favor of constitutionality, and before a court is justified in holding that the legis lative power has been exercised beyond the limits granted, or in conflict with restrictions imposed by the fundamental law, the when clear, if written constitutions are to excess or conflict should be clear. And yet, be regarded as of value, the duty of the court is plain to uphold the Constitution, although in so doing the legislative enactment falls. The reasoning in support of this was, "Sec. 6. That on and after the first day in the early history of this court, forcibly of July, eighteen hundred and ninety-eight, declared by Chief Justice Marshall in Marthere shall be levied, collected, and paid, for "The Constitution is either a superior means, or it is on a level with ordinary legis paramount law, unchangeable by ordinary lative acts, and, like other acts, is alterable when the legislature shall please to alter and in respect of the several bonds, deben-bury v. Madison, 1 Cranch, 137, 177, 2 L. ed. tures. or certificates of stock and of indebt-60, 73, and nothing can be said to add to the strength of his reasoning. His language is edness, and other documents, instruments, worthy of quotation: matters, and things mentioned and described in schedule A of this act, or for or in respect of the vellum, parchment, or paper upon which such instruments, matters, or things, or any of them, shall be written or printed, by any person or persons or party who shall make, sign, or issue the same, or for whose use or benefit the same shall be made, signed, or issued, the several taxes or sums of money set down in figures against the same respectively, or otherwise specified or set forth in the said schedule." In schedule A is this clause: "Bills of lading or receipt (other than charter party) for any goods, merchandise, or effects, to be exported from a port or place in the United States to any foreign port or place, ten cents." Also the following: it. "If the former part of the alternative be true, then a legislative act contrary to the Constitution is not law; if the latter part be true, then written constitutions are absurd attempts, on the part of the people, to limit a power in its own nature illimitable. "Certainly all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently the the ory of every such government must be that an act of the legislature repugnant to the constitution is void. "It shall be the duty of every railroad or "This theory is essentially attached to a steamboat company, carrier, express comwritten constitution, and is consequently to pany, or corporation, or person whose occu-be considered, by this court, as one of the pation is to act as such, to issue to the shipfundamental principles of our society. per or consignor, or his agent, or person of the judicial department to say what the "It is emphatically the province and duty from whom any goods are accepted for trans-law is. Those who apply the rule to partic portation, a bill of lading, manifest, or ular cases must of necessity expound and other evidence of receipt and forwarding for interpret that rule. If two laws conflict each shipment received for carriage and with each other, the courts must decide on transportation, whether in bulk or in boxes, the operation of each. bales, packages, bundles, or not so inclosed "So if a law be in opposition to the Conor included; and there shall be duly attached stitution, if both the law and the Constituand canceled, as is in this act provided, to tion apply to a particular case, so that the each of said bills of lading, manifests, or court must either decide that case conformother memorandum, and to each duplicateably to the law, disregarding the Constitu thereof, a stamp of the value of one cent." tion, or conformably to the Constitution, dis regarding the law, the court must determine | be taken as a constitution. In the course which of these conflicting rules governs the of the opinion the chief justice said: case. This is of the very essence of judicial duty. "If, then, the courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply. "The particular phraseology of the Constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the Constitution is void, and that courts as well as other departments are bound by that instrument.' "The subject is the execution of those great powers on which the welfare of a nation essentially depends. It must have been the intention of those who gave these powers to insure, as far as human prudence could insure, their beneficial execution.* This* could not be done by confining the choice of means to such narrow limits as not to leave it in the power of Congress to adopt any which might be appropriate and which were conducive to the end. This provision is made in a Constitution intended to endure for ages to come, and, consequently, to be adapted to the various crises of human affairs. To have prescribed the means by which government should, in all future time, execute its powers, would have been to change entirely the character of the instrument, and give it the properties of a legal code. It would have been an unwise attempt to provide, by immutable rules, for exigencies which, if foreseen at all, must have been seen dimly, and which can be best provided for as they occur. To have declared that the best means shall not be used, but those alone without which the power given would be nugatory, would have been to deprive the legislature of the capacity to avail itself of experience, to exercise its reason, and to accommodate its legislation to cirWheat. 316, 415, 4 L. ed. 579, 603. cumstances." M'Culloch v. Maryland, 4 And thereafter, in language which has become axiomatic in constitutional construc tion (p. 421, L. ed. 605) This judicial duty of upholding the provisions of the Constitution as against any legislation conflicting therewith has become now an accepted fact in the judicial life of this nation. That in the enforcement of this rule the decisions, national and state, are not all in harmony is not strange. Conflicts between constitutions and statutes have been easily found by some courts. It has been said, and not inappropriately, that in certain states the courts have been strenuous as to the letter of the state Constitution, and have enforced compliance with it under circumstances in which a full recognition of the spirit of the Constitution and the general power of legislation would have justified a different conclusion. We do not care to enter into any discussion of these varied decisions. We proceed upon the rule, often expressed in this court, that an act of Con"We admit, as all must admit, that the gress is to be accepted as constitutional un- powers of the government are limited, and less on examination it clearly appears to be that its limits are not to be transcended. in conflict with provisions of the Federal But we think the sound construction of the Constitution. Constitution must allow to the national legIn the light of this rule the inquiry natur-islature that discretion with respect to the ally is, Upon what principles and in what means by which the powers it confers are to spirit should the provisions of the Federal be carried into execution, which will enable Constitution be construed? There are in that body to perform the high duties asthat instrument grants of power, prohibi-signed to it, in the manner most beneficial tions, and a general reservation of ungranted to the people. Let the end be legitimate, let powers. That in the grant of powers there it be within the scope of the Constitution, was no purpose to bind governmental action by the restrictive force of a code of criminal procedure has been again and again asserted. The words expressing the various grants in the Constitution are words of general import, and they are to be construed as such, cases the question was as to the scope and and as granting to the full extent the pow-extent of the powers granted, and the laners named. Further, by the last clause of guage quoted must be taken as appropriate § 8, art. 1, Congress is authorized "to make to that question and as stating the rule by all laws which shall be necessary and proper which the grants of the Constitution should for carrying into execution the foregoing be construed. powers, and all other powers vested by this We are not here confronted with a quesConstitution in the government of the Unit-tion of the extent of the powers of Congress, ed States, or in any department or officer thereof." This, construed on the same principles, vests in Congress a wide range of discretion as to the means by which the powers granted are to be carried into execution. This matter was at an early day presented to this court, and it was affirmed that there could be no narrow and technical limitation or construction; that the instrument should and all means which are appropriate, which are plainly adapted to that end, which are and spirit of the Constitution, are constitunot prohibited, but consist with the letter tional." It is true that in that and other kindred but one of the limitations imposed by the Constitution on its action, and it seems to us clear that the same rule and spirit of construction must also be recognized. If powers granted are to be taken as broadly granted, and as carrying with them authority to pass those acts which may be reasonably necessary to carry them into full execution; in other words, if the Constitu |