contended for would permit an author to lie | lish the fact that Thornton had the possesby during the two years allowed him for sion of these prints, by showing that he was bringing suit, permit another to publish the the man who first conceived the idea of getwork during that time, and then recover for ting them up and using them in the business every copy so published. Not only this, but of the firm. It was held that Thornton as the penalty is imposed upon any person could not be considered to have held posseswho engraves, copies, prints. publishes, or sion of them, but that an action of replevin sells a copy, not only the publisher, but the could have been sustained against the firm, printer and bookseller might be liable for and that they were the proper parties to be every copy traced to his possession. Indeed, made defendants. The same argument was the defendant might be niade liable for every made as in Backus v. Gould, that the words, copy traced to his possession, even though "found in his possession," meant simply that, he destroyed the whole edition for the pur- where the sheets are ascertained by the findpose of relieving himself from the penalty. ing of the jury to have been at any time in[68] This case is clearly controlled by that of the possession of the defendant, the forfeitBackus v. Gould, 7 How. 798, 12 L. ed. 919. ure attached; but it was held that the only That was an action of debt brought by Gould possession defendant had was that of Sharpand Banks to recover penalties incurred by the less & Sons, and that he held them merely as invasion of plaintiff's copyright in twelve their employee, subject always to their order volumes of law reports. Defendant insisted and control. While Backus v. Gould is not that plaintiffs could only recover for such cited in the opinion, the case is a distinct sheets as were proved to have been found in affirmance of that. See also Sarony v. his possession, either printing or printed, Ehrich, 28 Fed. Rep. 79. published or exposed for sale. Plaintiffs Had Congress designed the extended meaninsisted, as the plaintiff does here, that they ing claimed for these words “found in his were entitled to recover for every sheet which possession," it would naturally have used the had been published, or procured to be pub-expression "found or traced to his posseslished, by the defendant, whether the same sion," or "found to be, or to have been, in were proved to have been found in the de- his possession." It is only by interpolating fendant's possession or not. The language words of this purport that the statute can of the forfeiting clause, § 6 of the act of Feb-receive the construction claimed. We conruary 3, 1831 (4 Stat. at L. 436, chap. 16), cur with the learned judge who spoke for the [267]was that "such *offender shall forfeit every court of appeals that the words "found in copy of such book to the person legally, at his possession" aptly refer to a finding for the time, entitled to the copyright thereof, and shall also forfeit and pay fifty cents for the purposes of forfeiture and condemnation. ble for every sheet which he had published, or procured to be published, was held to be erroneous. That case was decided in 1849, and must be regarded as overruling anything to be found to the contrary in Reed v. Carusi, Taney, Dec. 72, Fed. Cas. No. 11,642, decided by Chief Justice Taney in 1845; Dwight v. Appleton, Fed. Cas. No. 4,215, decided in 1843, and Millett v. Snowden, Fed. Cas. No. 9,600, decided in 1844. The case of Thornton v. Schreiber, 124 U. S. 612, 31 L. ed. 577, 8 Sup. Ct. Rep. 618, was a qui tam action brought against Thornton under § 4965 for the unlawful reproduction of a certain copyrighted photograph. The case turned upon the fact whether the sheets were found in the possession of the defendant. They were actually found in the store of Sharpless & Sons, wholesale dealers in dry goods, were used by pasting them upon parcels of dry goods, and were their property. Thornton was employed for the purchase of goods sold by the firm, and he appears to have gotten up the plate, ordered fifteen thousand copies to be made, which were subsequently delivered to Sharpless & Sons, who paid for them. Attempt was made to estab Two other defenses are interposed which The judgment of the court below is af- Mr. Justice White concurred in the result. [269]ARKANSAS BUILDING & LOAN ASSO-person; and, when taken, except for the use CIATION (Perpetual), Appt., v. J. W. MADDEN, Secretary of State. (See S. C. Reporter's ed. 269-274.) Injunction against collection of franchise tax-remedy at law. of the state, such compensation shall be first An injunction will not be granted against the [No. 68.] Submitted October 26, 1899. A cember 4, 1899. Decided De "Sec. 2. All occupation taxes shall be equal and uniform upon the same class of subjects within the limits of the authority levying the tax; PPEAL from the decree of the Circuit Court of the United States for the West"Sec. 4. The power to tax corporations ern District of Texas, dismissing a bill for and corporate property shall not be surreninjunction against the collection of a fran-dered or suspended by act of the legislature, chise tax. Modified to a dismissal without prejudice and as modified affirmed. by any contract or grant to which the state "Sec. 17. The specification of the objects Statement by Mr. Chief Justice Fuller: and subjects of taxation shall not deprive the By an act of the state of Texas approved legislature of the power to require other subApril 3, 1889 (Tex. Laws 1889, chap. 78, p.jects or objects to be taxed in such manner 87), foreign corporations for pecuniary prof- as may be consistent with the principles of it, with some exceptions not material here, taxation fixed in this Constitution." desiring to do business in the state of Texas, were required to file with the secretary of state a duly certified copy of their articles of incorporation and obtain a permit to transact business in the state, paying a fee therefor, the permit not to be issued for a period long er than ten years from the date of the filing. By an act approved May 11, 1893 (Laws 1893, chap. 102, § 5, p. 158), it The provisions of the acts of 1889 and 1893 was provided "that each and every private were carried into the Revised Statutes of the domestic corporation heretofore chartered, or state of Texas of 1895. By an act approved that may be hereafter chartered, under the April 30, 1897 (Tex. Laws 1897, chap. 104. p. laws of this state, and each and every foreign 140), and an act approved May 15, 1897 (Tex. corporation that has received or may here- Laws 1897, chap. 120, p. 168), these provi after receive a permit to do business undersions were amended so as, among other things, the laws of this state, in this state, shall pay to increase the annual franchise tax thereto to the secretary of state, annually, on or before required. to graduate it according to the fore the first day of May, a franchise tax of ten dollars. Any such corporation which [270]shall fail to pay the tax provided *for in this action shall, because of such failure, forfeit their charter." In July, 1896, the Arkansas Building & Loan Association, *a corporation of the state[271] of Arkansas, filed its charter with the secretary of the state of Texas, and paid the fee required by the act of 1889, as well as the franchise tax of $10 required to be paid by the act of 1893, and received a permit to carry on its business in Texas for ten years. capital stock of the corporation, to provide that the failure to pay it should work a forfeiture of the right to do business in the state, and that the secretary of state should declare such forfeiture. The taxes imposed Section 17 of article 1 of the Constitution by these amendments were less upon domestic of Texas, ratified February 17, 1876, pro- corporations than upon foreign corporations. vided: "No person's property shall be tak- Thereafter the Arkansas Building & Loan en, damaged, or destroyed for, or applied to, Association offered to pay the secretary of public use without adequate compensation state the $10 required by the prior law as the being made, unless by the consent of such franchise tax for the ensuing year, but the NOTE.-A8 to when equity will restrain the col-secretary refused to accept that sum and to lection of a tax, see notes to Dows v. Chicago, 20 L. ed. U. S. 65; Ogden City v. Armstrong, 42 L. ed. U. S. 445; Odlin v. Woodruff (Fla.) 22 L. R. A. 699. give to the company the franchise tax receipt therefor, and demanded the larger sum required by the law of 1897, which amounted to $205. any case where a plain, adequate, and complete remedy may be had at law." And on principle, the interference of the courts of the United States by injunction with the collection of state taxes, or with state administration of matters of internal police, can only be justified in a plain case not otherwise remediable. The grievance complained of in this case is that the Arkansas corporation entered on the transaction of business in Texas at a time when the annual franchise or license tax was $10 and that it is now required to pay $205 by a subsequent law, which, it alleges, is unconstitutional. The company then filed a bill in the circuit court of the United States for the western district of Texas against the secretary of state of Texas, setting up the foregoing facts, and charging that the act of 1897 was void because in contravention of the Constitution of Texas, and of the commerce clause of the Constitution of the United States and of the Fourteenth Amendinent to that instrument, and praying an injunction against the secretary of state restraining him from the collection of said alleged illegal tax, and from declaring complainant's permit and right to do business in the state forfeited by toilure to pay the tax, and for general relief. To this bill defendant demurred, assigning as grounds that it set up no cause of action; that it disclosed that complainant had an adequate remedy at law; and that it showed [272] that the demand made of complainant was "in compliance with a valid existing law o the state of Texas." The circuit court held It is on these grounds of equity interposithat the law was valid, and dismissed then that the aid of the circuit court was bill. [272] *Mr. Chief Justice Fuller delivered the opinion of the court: The rule is that the collection of taxes under state authority will not be enjoined by a court of the United States on the sole ground that the tax is illegal, but it must appear that the party taxed has no adequate remedy by the ordinary processes of the law, and that there are special circumstances bringing the case within some recognized head of equity jurisdiction. Pittsburgh, C. C. & St. L. R. Co. v. West Virginia Bd. of Public Works, 172 U. S. 32, 43 L. ed. 354, 19 Sup. Ct. Rep. 90; Shelton v. Platt, 139 U. S. 591, 35 L. ed. 273, 11 Sup. Ct. Rep. 646; Dows v. Chicago, 11 Wall. 108, 20 L. ed. 65. The penalty denounced on failure to pay is the forfeiture of the right to do business in the state, and complainant averred that if that forfeiture were declared it would be subjected to irreparable injury and to a multiplicity of suits. sought to restrain the discharge by a state officer of duties imposed on him by the law of the state, and to adjudicate as to the validity of hat law. But the bill of complaint did not set forth any facts tending to show that complainant the $205 under protest, and recover back the could not escape the forfeiture by payment of money so paid if the law should be held void. We assume that the payment would, under the circumstances detailed, be compulsory and not voluntary, and no reason is perceived why the rule permitting recovery back would not apply. tion will lie for money paid, under compulThat rule as applicable here is that an acsion, on an illegal demand, the person making it being notified that his right to do so is contested. Elliott v. Swartwout, 10 Pet. by the compulsion of the color of legal proc-[274j The fact that the defendant is a state of- "The party of whom an illegal tax is collected has ordinarily ample remedy, either by action against the officer making the collection or the body to whom the tax is paid. Here such remedy existed. If the tax was illegal, the plaintiff protesting against its enforcement might have had his action, after it was paid, against the officer or the city Inasmuch as the bill contains nothing to to recover back the money, or he might have indicate inability on the one hand to pay the prosecuted either for his damages. No ir-franchise tax in question, or, on the other, to reparable injury would have followed to him from its collection. Nor would he have been compelled to resort to a multiplicity of suits to determine his rights." These decisions are in harmony with the 16th section of the judiciary act of 1789, now § 723 of the Revised Statutes, which declared [878] he rule as then and still existing, *that "suits in equity shall not be sustained in either of the courts of the United States in 160 respond in judgment if it were found to have It is quite possible that in cases of this a bill in equity than by an action at law, but considerations of that character, while they may explain, do not justify, resort to that mode of proceeding. Decree modified to a dismissal without prejudice, and as so modified affirmed. ing from Leander J. McCormick to the bank of certain offices in Chicago, "to be used and occupied by said Market National Bank as a banking oflice, and for no other purpose," for the term of five years from May 1, 1893, at a yearly rent of $13,000. By an agreement made part of the lease, McCormick was to make certain alterations and repairs at his ANTHONY F. SEEBERGER et al., Piffs. in own expense; either party might cancel the Err., v. LEANDER J. MCCORMICK. (See S. C. Reporter's ed. 274-281.) Federal question on writ of error to state court-question of general law. The decision of a state court holding that by lease on May 1 of any year by giving ninety days' notice in writing; and no rent was to be charged until the bank took possession. On April 12, 1893, the parties made a supplemental agreement by which McCormick was to make further alterations, the bank paying half the cost thereof. All the alterations and repairs were made by McCormick as agreed; the cost, paid by him, of the *altera-[276] tions of April 12, 1893, being $2,475. On reason of their faise assumption of corporate authority the officers, directors, and sharene 22, 1893, the president and cashier, in holders of what purported to be a national the name of the bank, took possession of the bank, but which never obtained legal author- demised premises. and put in the fixtures and ity to do business, became liable as partners, furniture, blank books and stationery, neceson the principle of agency, for contracts en- sary to carry on a banking business, and tered into in the name of the corporation, they were not removed until April 30, 1895. does not involve any Federal question which will sustain a writ of error from the Supreme Court of the United States, but only a question of general law. [No. 322.] Of the whole capital stock of $1.000,000, called for in the articles of association, but $331,594 was ever paid in; and the bank was never authorized by the Comptroller of the Currency to commence, and never did commence, the business of banking. The officers Submitted October 16, 1899. Decided De- of the bank, from time to time, corresponded cember 4, 1899. IN ERROR to the Supreme Court of the firming the decision of the appellate court against the defendants in an action to hold them liable as partners for false assumption of power as a national banking association. On motion to dismiss for lack of Federal question. Dismissed. See same case below, 178 Ill. 404. with McCormick, using letter heads with the name, location, and place of business of the bank and the names of the officers printed thereon, and signing in their official On August 15, 1893, the officers of the bank informed McCormick that the bank had never been authorized to commence the business of banking, and had no power to enter into the lease, and had abandoned all further proceedings, and offered to surrender the lease. McCormick refused to accept the surrender, and on September 20, 1893, the Statement by Mr. Justice Shiras: president caused the key of the office to be [275] *This was an action brought in a state left on the desk of McCormick's agent, he recourt of Illinois in which Leander J. McCor-fusing to accept it. mick sought to hold Seeberger and others as On October 4, 1893, the parties agreed in partners for an alleged false assumption of writing that, without prejudice to the rights power as a national banking association. of either, McCormick should take possession On January 31, 1893, articles of associa-of the premises, and endeavor to lease them tion were signed, and an organization certifi-and to collect the rent thereof. He made cate was signed and acknowledged by nine citizens of Illinois, and both were transmitted to the Comptroller of Currency, as required by the Revised Statutes of the United States, for the purpose of making them a national banking association at Chicago by the name of the Market National Bank. At a meeting of the directors of the bank, chosen by the stockholders, and named in the articles of association, a president and cashier were duly elected, and the directors caused a seal to be made for the bank. On February 9, 1893, the president, pursuant to a resolution of the directors, signed and sealed with the corporate seal a lease in writNOTE.-A8 to jurisdiction of Federal state courts; necessity of Federal question, every effort to obtain a tenant accordingly, but was unable to do so. On January 3, 1895. McCormick gave written notice to the president of the bank of his intention to terminate the lease in May, 1895, in accordance with its terms. The cashier paid the rent, according to the lease, until July 22, 1893; but the bank refused to pay any rent subsequently accruing, and never paid its half of the cost of the alterations made under the agreement of April 12, 1893. Thereupon McCormick brought an action against the Market National Bank on July 17, 1895, in the superior court of Cook county, Illinois, claiming that he was entitled to recover judgment, at the rate agreed upon in the lease, from July 22, 1893, up to May 1, 1895, and see notes to Kipley v. Illinois ex rel. Akin, 42 for half of the *cost of changing and repair-[277] L. ed. U. S. 998, and Hamblin v. Western Landing the premises. That court refused to Co. 37 L. ed. U. S. 267. hold that McCormick could recover upon the 161 175 U. S. U. S., Book 44. over 11 Egan v. Hart, 165 U. S. 188, 41 L. ed. 680, 17 Sup. Ct. Rep. 300. Constructive notice to McCormick of the want of power on the behalf of the bank to make the contract in question is not binding in a suit brought against the officers of the bank based upon their acts, conduct, or false representations. Weidler v. Farmers' Bank, 11 Serg. & R. 134; Lasher v. Stimson, 145 Pa. 30, 23 Atl. 552; Clark v. Edgar, 84 Mo. 106, 54 Am. Rep. 84; Bigelow v. Gregory, 73 Ill. 197; Cherry v. Colonial Bank, L. R. 3 P. C. 24; Medill v. Collier, 16 Ohio St. 599; Lagrone v. Timmerman, 46 S. C. 372, 24 S. E. 290; Merchants' Nat. Bank v. Robison, 8 Utah, 256, 30 Pac. 985; Nash v. Minnesota Title Ins. & T. Co. 159 Mass. 437, 34 N. E. 625; Taylor v. Nostrand, 134 N. Y. 108, 31 N. E. 246; Miller v. Reynolds, 92 Hun, 400, 36 N. Y. Supp. 660; Bank of Atchison County v. Byers, 139 Mo. 627, 41 S. W. 325; Corwith v. Culver, 69 Ill. 503; McCarthy v. Lavasche, 89 Ill. 270, 31 Am. Rep. 83; Casey v. Galli, 94 U. S. 673, 24 L. ed. 168; Bigelow, Estoppel, 5th ed. 462; Herman, Estoppel, § 1250. lease as a valid contract, but gave judgment | court turned upon a general principle of law Plaintiffs in error specially set up and claimed immunity by reason of § 5136 of the Revised Statutes of the United States. *Mr. Justice Shiras delivered the opinion[278] of the court: In the suit brought by McCormick against the Market National Bank of Chicago it was held by the supreme court of Illinois that the contract of lease sued on was not incidental and necessarily preliminary to the organization of the corporation, and therefore, by virtue of § 5136 of the Revised Statutes, having been executed by the defendant before being authorized by the Comptroller of the Currency to commence the business of banking, did not bind the defendant. That deci sion, being arrived at upon a consideration of the legal import of a statute of the United States, was plainly one involving a Federal question. But it was contended that this court had no furisdiction to review the action of the state court, because its decision was in favor, in respect to the Federal statute, of the party who had set up and claimed clearly shown by this court that, as the dean immunity under it. It was, however, bition to transact any business until it had fendant had relied on the statutory prohi been authorized by the Comptroller of the Currency to commence the business of bank Armstrong v. Athens County Treasurer, 16 Pet. 281, 10 L. ed. 965; Des Moines Nav.ing, and as the plaintiff 1.ad relied on the ex& R. Co. v. Iowa Homestead Co. 123 U. S. 552, 31 L. ed. 202, 8 Sup. Ct. Rep. 217. The decision of the state court was de cisive of the case and was erroneous. McCormick v. Market Nat. Bank, 165 U. S. 538, 41 L. ed. 817, 17 Sup. Ct. Rep. 433. Mr. A. M. Pence submitted the cause for defendant in error (Messrs. George A. Carpenter and Shirley T. High were with him on the brief): This court cannot review the facts in the case, but only questions of law, and assuming the facts in the case to be as found by the state court, then the decision of the state claimed that the lease was "incidental and McCormick's recovery in that action hav. |