tion. And it is not perceived how a different conclusion is warranted because the tax is designated in an independent section of the act 227*] under which the new company was formed, instead of being designated in an independent act. As already observed, nothing can be taken from the power of the state in this respect by presumption or inference. The act of that state under which the three companies were consolidated into one, and the present defendant corporation was formed, contained, as we have already stated, a similar provision to the one we have been considering, that the new consolidated company should be entitled to all the rights, privileges, and immunities which each and all of them possessed and enjoyed under their respective charters, a provision which, in no respect, changed the position with reference to taxation of the new company in one of the states from that of the old company in such state. Such is substantially the construction given by this court in the case of The Philadelphia, Wilmington & Baltimore Railroad Company v. Maryland, reported in 10 Howard, 377. In that case the question arose whether the qualified exemption of the panies was extended to the consolidated company under the provision in question; and the court said that, "as these companies held their corporate privileges under different charters, the *evident meaning of this provision [*229 is, that whatever privileges and advantages either of them possessed should in like manner be held and possessed by the new company, to the extent of the road they had respectively occupied before the union; that it should stand in their place, and possess the power, rights, and privileges they had severally enjoyed in the portions of the road which had previously belonged to them." In the case of Com. v. Bk. 10 Pa. 451, we have an adjudication of the supreme court of Pennsylvania upon the precise question here presented. The Easton Bank had been chartered under a general law which prescribed the payment of taxes on its dividends at a fixed rate. A subsequent statute increased that rate, and it was argued, as here, that the designation in the original act created a contract on the part of the state that no additional tax should be laid, and that the later act, therefore, im-line of road which belonged to one of the compaired the obligation of the contract. But the court held that the designation in the original act was nothing more than a simple declaration of the tax then to be paid by the bank, and did not give the slightest intimation of an agree ment or understanding, that the tax should not be increased during the existence of the charter. "To deduce," said the court, "from premises so insufficient, a consequence of such magnitude, would, indeed, be a gross violation of the wholesome principle that an abandonment of the power of taxation is only to be established by clearly showing this to have been the deliberate purpose of the state." We are, therefore, of opinion that the act of April 8, 1869, is not obnoxious to the objection that it violates any contract between the state of Delaware and the company contained in the charter of the latter. The position of the appellant, as to the effect of the provision of the same act of Delaware, that the new company should possess all the rights and privileges vested in the original companies, or either of them, by that act, or any other law of that state or the state of Mary- We proceed, therefore, to the second objecland, is more plausible, but equally unfounded. tion to the act; that it imposes taxes upon It proceeds, we think, as stated by the circuit property beyond the jurisdiction of the state. court, upon a misapprehension of the purpose If such be the fact the tax to that extent is inof the provision. A similar provision, as al- valid, for the power of taxation of every state ready stated, is contained in the Maryland act is necessarily confined to subjects within its authorizing, on her part, the consolidation of jurisdiction. The objection of the appellant is the companies. The purpose of the two pro-directed principally to the tax imposed by the visions was to vest in the new company the 4th section of the act, and assumes that the tax rights and privileges which the original com- must be considered as laid upon the shares as 228*1 panies had previously *possessed under representing the separate property of the inditheir separate charters; the rights and privi-vidual stockholders, or as representing the leges in Maryland which the Maryland com- property of the corporation. And the argupany had there enjoyed, and the rights and ment is that if the tax be laid upon the shares privileges in Delaware which the Delaware of the stockholders it falls upon property out company had there enjoyed; not to transfer to of the state, because nearly all the stockholdeither state and enforce therein the legislation ers, at least a much greater number than the of the other. The new company was clothed by ratio of the mileage of the road in Delaware to the legislature of Delaware, so far as that legis-its entire length, are citizens and residents of lature could clothe it, with all the rights and other states; and if the tax be laid upon the privileges of both the original companies; but shares as representing the property of the coras the Maryland company took under the legis-poration, it falls upon property out of the lation of Maryland only exemption from taxation of its shares in Maryland, the privilege of the new company in this matter could only be a similar exemption in that state, not a similar exemption of the shares of its capital stock from taxation in Delaware. The new company stood in each state as the original company had previously stood in that state, invested with If the assumption of the appellant were corthe same rights, and subject to the same liabili-rect, there would be difficulty in sustaining the ties. And the act of consolidation, so far as validity of the tax. Delaware was concerned, had only this effect. In the first place, the share of a stockholder state, because the ratio of the mileage of the road in Delaware to its entire length is not that which the capital invested by the company in that state bears to the entire capital of the company, or that which the value of the property of the company there situated bears to the value of its entire property. * is, in one aspect, something different from the upon the property of the corporation, but is a 230*] capital stock of the company; the lat-tax upon the corporation itself, measured by a ter only is the property of the corporation; the percentage upon the cash value of a certain proformer is the individual interest of the stock portional part of the shares of its capital holder, constituting his right to a proportional stock; a rule which, though an arbitrary one, is part of the dividends when declared, and to a approximately just, at any rate is one which proportional part of the effects of the corpora- the legislature of Delaware was at liberty to tion when dissolved, after payment of its debts. adopt.. Regarded in that aspect it is an interest or right which accompanies the person of the owner, having no locality independent of his domicil. Van Allen v. Assessors, 3 Wall. 583, 18 L. ed. 234; Union Bank v. State, 9 Yerg. 501; Richmond v. Daniel, 14 Grat. 385; Savings Bank v. Nashua, 46 N. H. 398; Dwight v. Mayor, 12 Allen, 322; Redfield's Supplement to Law of Railways, 507-510. But whether, when thus regarded, it can be treated as so far severable from the property to which it relates as to be taxable independent of the latter, is a question not necessary now to decide. The argument of the appellant assumes that it is thus severable. The state may impose taxes upon the corporation as an entity existing under its laws, as well as upon the capital stock of the corporation or its separate corporate property. And the manner in which its value shall be assessed and the rate of taxation, however arbitrary or capricious, are mere matters of legislative discretion. It is not for us to suggest in any case that a more equitable mode of assessment or rate of taxation might be adopted than the one prescribed by the legislature of the state; our only concern is with the validity of the tax; all else lies beyond the domain of our jurisdiction. Nothing was urged in the argument specially In any aspect, if provision for the taxation against the tax upon the corporation under the of the shares at the locality of the company be 1st section of the act, which is determined by made in its charter, their taxability at such lo- the net earnings or income of the company. cality is annexed as an incident to the shares, Whatever objections could be presented are anand it does not matter where the domicil of the swered by the observations already made upon owner may be. The tax may then be enforced the tax under the other section. A tax upon a through the corporation by requiring it to withhold the amount from the dividends pay-income received as well as to the value of the corporation may be *proportioned to the [*232 able thereon. The shares in the national banks franchise granted or the property possessed. It remains to notice the objection that the act of 1869 conflicts with the power of Congress to regulate commerce among the several states, and interferes with the right of transit of persons and property from one state into or through another. created under the act of Congress of June 3, 1864, are made taxable at the place where the bank is located, and not elsewhere; and in the case of The National Bank v. Commonwealth, reported in 9 Wall. 353, 19 L. ed. 701, a law of Kentucky requiring the banks in that state to pay the tax laid on their shares was sustained by this court. But in the act of Delaware under which the corporation defendant was formed, there is no such provision for the taxation of the shares of the individual stock-state to another just in the same way, and in no holders. The tax imposed by the act in question affects commerce among the states and impedes the transit of persons and property from one justly observed in this court in a recent ease, "Every tax upon personal property, or upon occupations, business or franchises, affects more or less the subjects and the operations of commerce. Yet it is not everything that affects commerce that amounts to a regulation of it, within the meaning of the Constitution." State Tax on Ry. Gross Receipts, ante, 164. other, that taxation of any kind necessarily inIn the second place, assuming that the tax is creases the expenses attendant upon the use or upon the property of the corporation, if the possession of the thing taxed. That taxation ratio of the value of the property in Delaware produces this result of itself constitutes no obto the value of the whole property of the com-jection to its constitutionality. As was very pany be less than that which the length of the road in Delaware bears to its entire length, and 231*] such is admitted to be the fact, a tax imposed upon the property in Delaware, according to the ratio of the length of its road to the length of the whole road, must necessarily fall upon property out of the state. The length of the whole road is in round numbers one hundred miles; the length in Delaware is twentyfour miles. The tax upon the property esti mated according to this ratio would be in Delaware or of the amount of the tax upon the whole property. But the value of the property in Delaware is not of the value of the whole property, but much less than this proportion would require. assump We repeat, therefore, that the upon tion made by the appellant there would be great difficulty in sustaining the tax. We do not think, however, the assumption is correct. As we construe the language of the 4th section, the tax is neither imposed upon the shares of the individual stockholders nor The exercise of the authority which every state possesses to tax its corporations and all their property, real and personal, and their franchises, and to graduate the tax upon the corporations according to their business or inis not done by discriminating against rights come, or the value of their property, when this held in other states, and the tax is not on imports, exports, or tonnage, or transportation to other states, cannot be regarded as conflicting with any constitutional power of Congress. From the views expressed, it follows that the judgment of the Circuit Court must be affirmed, and it is so ordered. JOSEPH J. THOMPSON, Plff. in Err., V. JOHN WHITMAN. (See S. C. 18 Wall. 457-471.) State judgment—when may be contradicted as to jurisdictional facts—want of jurisdiction may be shown-New Jersey oyster law. 1. Neither the constitutional provision that full faith and credit shall be given in each state to the public acts, records and judicial proceedings of every other state, or the act of Congress passed in pursuance thereof, prevents an inquiry into the jurisdiction of the court by which a judgment of fered in evidence was rendered. 2. The record of a judgment rendered in another state may be contradicted as to the facts necessary to give the court jurisdiction; and if it be shown that such facts did not exist, the record will be a nullity, notwithstanding it may recite that they did exist. 3. Want of jurisdiction may be shown, either as to the subject-matter or the person, or in proceedings in rem as to the thing. on the face of it, as in the present case, shows jurisdiction, it will be held conclusive, until the contrary is proved. But when set up to affect the rights of the party, either in a direct proceeding or collaterally, it is always competent for him to aver and prove the want of ju| risdiction." 1. In a direct proceeding this is true. 2. In a collateral proceeding, this is not the rule in the broad sense in which it is stated; for if the vessel is either seized or brought within the territorial jurisdiction, and it is so determined by the tribunal authorized to try the question, its judgment is conclusive. 3. It is only in a case where there is no pretense that the condemned property was seized nal passing its decree that it is competent to or brought within the jurisdiction of the tribuaver and prove in a collateral proceeding, want of jurisdiction. 4. If the seizure of The Whitman had been 4. By a law of New Jersey, non-residents were prohibited from raking clams and oysters in the made on the high seas, and the vessel had waters of that state, under penalty of forfeiture of never been brought within the jurisdiction of the vessel employed; and any two justices of the New Jersey, the rule laid down by the court becounty in which the seizure of the vessel should be made were authorized, upon information given, to low, citing Rose v. Himely, 4 Cranch, 269, might hear and determine the case; held, that if the seiz- apply; but in this case there was a municipal ure was not made in the county where the prose seizure, made within the dominions of the sovcution took place, the justices of that county had no jurisdiction, and that this fact might be in- ereign power, and the statute upon which it quired into in an action for making such seizure, was based carefully and strictly complied with. brought in New York, notwithstanding the record It is well settled law that the jurisdiction of of a conviction was produced, which stated that the court is not open to review collaterally, the seizure was made within such county. under such circumstances. [No. 111.] Argued Nov. 19, 20, 1873. Decided Mar. 2, 1874. York. The case is stated by the court. Messrs. J. M. Carlisle, Charles N. Black and Robert Gilchrist, for plaintiff in error: I. The judgment in this case is based upon the finding of the jury, contradicting the record of condemnation by the justices. The errors consist in the court treating this record as only prima facie evidence of the rights contained in it, and in retrying the same questions collaterally in this action. II. The condemnation by the justices was under the 7th and 9th sections of an "act of the legislature of the state of New Jersey," revised and approved Apr. 14, 1846, Rev. Stat., of said state, pp. 493, 394. III. This act shows that the tribunal rendering the decree of condemnation was legally constituted, and defines its powers and jurisdiction and manner of proceeding. 5. The 9th section of the act above cited authorizes any person to make the seizure any. mation to two justices of where in the state, and thereupon give infor county where such seizures shall have been made. It is conceded that the seizure was made in the state, but it is claimed, because the jury found it was not made in Monmouth county, most an irregularity, not open to inquiry when that it is void. This is erroneous; it is at brought before the court collaterally. The magistrates were bound to inquire as to the fact, and having found that the seizure was made in their county, their finding is con clusive of it. Brittain v. Kinnaird, 1 Brod. & B. 432. VI. The proceedings of the justices are collaterally called in question here, and it appears on the face of them that the subject-matter was within their jurisdiction. They are, therefore, voidable only. They are mere irregularities if anything, and are to be corrected by court to set them aside, or in an appellate court. some direct proceeding either before the same IV. It is stated in the opinion of the court Voorhees v. Bank of U. S. 10 Pet. 478; Blaine below "That in a proceeding in rem the judgv. Reynolds, 10 Wall. 308, 19 L. ed. 931; U. S. v. The Charles Carter, 4 Cranch, 328; Cooper ment rendered therein is conclusive upon all parties interested, with one qualification, name- v. Arredondo, 6 Pet. 730; Comstock v. Crawly, that the court had jurisdiction of the sub-ford, 3 Wall. 396, 18 L. ed. 34; Story, Confl. L. ject-matter; and if the record of the judgment †Headnotes by Mr. Justice BRADLEY. NOTE. Conclusiveness of record as to jurisdic tion in suit on judgment of another state. as a plea to judgment of another state-see note to Christmas v. Russell, 18 L. ed. U. S. 475. Conclusiveness of judgments-see note to Bank of U. S. v. Beverly, 11 L. ed. U. S. 75. Record evidence of jurisdictional facts. See note to Mills v. Duryee, 3 L. ed. U. S. 411. Conclusiveness of judgment rendered in a for eign country-see notes, 20 L. R. A. 668, 32 L. R. A. 236. 7th ed., § 591; Grignon v. Astor, 2 How. 319. 37; 1 Brod. & B. 432. VIII. The proceedings before the justices were proceedings in rem, which brings all parties interested before the court to plead. Miller v. U. S. 11 Wall. 268, 20 L. ed. 135; Gelston v. Hoyt, 3 Wheat. 246; Croudson v. Leonard, Cranch, 434; Bradstreet v. Ins. Co. 3 Sumn. 609; Mankin v. Chandler, 2 Brock. 125; The Globe, 2 Blatchf. 427. IX. If the information was made in the wrong county, it would at most be an irregularity that might, on a proper motion in that court or on appeal, be a cause of dismissal, but the irregularity must be rectified in the proper manner there. "But of this irregularity no foreign court could take notice." Hudson v. Guestier, 4 Cranch, 293; Bradstreet v. Ins. Co., supra. X. In the case of Rose v. Himely, 4 Cranch, 269, referred to in the decision of the court below, neither the vessel, captain, supercargo nor crew were ever brought within the jurisdiction of the court, nor within the dominion of the sovereign whose laws were infracted; nor was the seizure made within his dominions. The jurisdiction of the court over the subject of its sentence, it was held, never attached; the proceedings were entirely ex parte, and the sentence not to be regarded. But the principle of that case was afterwards overruled in Hudson v. Guestier, 6 Cranch, 281; so in that case the record was conclusive. XI. The record of condemnation by the justices shows a complete chain of legal formalities judiciously framed to meet the statute. XII. The New Jersey statute is not unusual. The fisheries are the property of the states, and the spirit of legislation and of the decisions of the courts has been, thus far, to protect them against non-residents. 1 Kent, Com., 6th ed., 27; Rogers v. Jones, 1 Wend. 238; 4 L. of N. Y. 248; N. Y. Sess. L., 1866, ch. 404. Messrs. Wm. M. Evarts, E. T. Dale and John L. Cadwalader, for defendant in error: I. The finding of the jury upon the questions submitted to them is conclusive of the case. The justification of the plaintiff in error failed unless he proved the allegations contained in the plea : 1. That, Sep. 26, 1862, the defendant in error was engaged with his vessel in taking clams within the limits of Monmouth Co., N. J. 2. That, being so engaged, the vessel was on that day seized within the limits of Monmouth Co. article 4, of the Constitution of the United States. Judgments of justices of the peace are not entitled to full faith and credit. They have no greater effect than foreign judgments. The judge at the trial instructed the jury that the record was prima facie evidence of the facts, and shifted the burden of proof on the defendant. This was correct. See, Article 4 of Constitution; Story, Const., § 1303; art. 4, § 1; U. S. Const.; act of Cong. May 25, 1790; Warren v. Flagg, 2 Pick. 448; King v. Van Gilder, 1 D. Chip. 59; Greene v. Briggs, 1 Curt. C. C. 311; Cox v. Groshong, Burn. (Wis.) 150, op. Mr. Justice Nelson, App. 3. The record and judgment are not conclusive as a proceeding in rem. In every proceeding in rem, as well as in every judgment made conclusive by the provisions of the act of 1790, the jurisdiction of the tribunal over the subject-matter or parties may be inquired into. This is true, whether the judgment be set up in a direct proceeding to affect the rights of a party or collaterally. The record in the present case on its face shows jurisdiction, and jurisdiction was therefore presumed; but the foundation of any judg ment, the right to hear and determine the controversy in question, in other words, the jurisdiction, may always be inquired into. Rose v. Himely, 4 Cranch, 241; Elliott v. Piersol, 1 Pet. 628; Christmas v. Russell, 5 Wall. 293, 18 L. ed. 475; Harvey v. Tyler, 2 Wall. 340, 17 L. ed. 873; Voorhees v. Bk. 10 Pet. 473; Hickey v. Stewart, 3 How. 750; Warren Mfg. Co. v. Etna Ins. Co. 2 Paine, 501. Mr. Justice Bradley delivered the opinion of the court: This is an action of trespass for taking and carrying away goods, originally brought in the superior court of New York city, and removed by the defendant, now plaintiff in error, into the circuit court of the United States. The declaration charges that, on the 26th of September, 1862, the defendant, with force and arms on the high seas, in the outward vicinity of the Narrows of the Port of New York, and within the southern district of New York, seized and took After patiently hearing the testimony of a the sloop Ann L. Whitman, with her tackle, cloud of witnesses on these points, the jury furniture, etc., the property of the plaintiff, and found on both issues in favor of the defendant carried away and converted the same. The dein error, finding specifically that the plaintiff fendant pleaded "Not guilty" and a special plea had not been so engaged on the day in question in bar. The latter plea justified the trespass and that the seizure was made in the channel by setting up that the plaintiff, a resident of and beyond the limits of Monmouth Co.; such New York, on the day of seizure was raking and limits being, as fixed by statute, as follows: gathering clams with said sloop in the waters "The northern bounds of the county of Mon- of New Jersey, to wit: within the limits of the mouth, are declared to be the middle or mid-county of Monmouth, contrary to the law of way of the waters of Raritan bay, from the line of Middlesex to the main channel, which passes by Sandy Hook, and along the said channel to the sea." With these findings this court will not interfere. open ones. II. The questions submitted to the jury were The record of the proceedings of the justices was not conclusive evidence against the plaintiff on the questions of fact involved. 1. Such proceedings are not within section 1, defendant, who was sheriff of said county, that state; and that, by virtue of said law, the seized the sloop within the limits thereof, and informed against her before two justices of the peace of said county, by whom she was condemned and ordered to be sold. In answer to this plea the plaintiff took issue as to the place of seizure, denying that it was within the state of New Jersey or the county of Monmouth, thus challenging the jurisdiction of the justices, as well as the right of the defendant to make the seizure. On the trial conflicting testimony extent, the capacity of the court to act upon the thing condemned, arising from its being within, or without, its jurisdiction, as well as the constitution of the court, may be considered by that tribunal which is to decide on the effect of the sentence." Rose v. Himely, 4 Cranch, 269. To the same effect see Story, Const. ch. XXIX; 1 Greenl. Ev., § 540. was given upon this point, but the defendant | principle, then, it would seem that, to a certain produced a record of the proceedings before the justices which stated the offense as having been committed and seizure as made within the county of Monmouth, with a history of the proceedings to the condemnation and order of sale. The defendant claimed that this record was conclusive, both as to the jurisdiction of the court and the merits of the case, and that it was a bar to the action, and requested the court so to charge the jury. But this was refused, and the court charged that the said record was only prima facie evidence of the facts therein stated, and threw upon the plaintiff the burden of proving the contrary. The defendant 460*] excepted, and the jury, under the direction of the court, found for the plaintiff generally, and in answer to certain questions framed by the court found specially: first, that the seizure was made within the state of New Jersey; second, that it was not made in the county of Monmouth; third, that the plaintiff was not engaged on the day of the seizure in taking clams within the limits of the county of Monmouth. Judgment being rendered for the plaintiff, the case is brought here for review. The main question in the cause is, whether the record produced by the defendant was conclusive of the jurisdictional facts therein contained. It stated, with due particularity, sufficient facts to give the justices jurisdiction under the law of New Jersey. Could that statement be questioned collaterally in another action brought in another state? If it could be, the ruling of the court was substantially correct. If not, there was error. It is true that the court charged generally that the record was 461] only prima facie evidence of the facts stated therein; but as the jurisdictional question was the principal question at issue, and as the jury was required to find specially thereon, the charge may be regarded as having reference to the question of jurisdiction. And if upon that question it was correct, no injury was done to the defendant. Without that provision of the Constitution of the United States which declares that "full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state," and the act of Congress passed to carry it into effect, it is clear that the record in question would not be conclusive as to the facts necessary to give the justices of Monmouth county jurisdiction, whatever might be its effect in New Jersey. In any other state it would be regarded like any foreign judgment: and as to a foreign judgment it is perfectly well settled that the inquiry is always open, whether the court by which it was rendered had jurisdiction of the person or the thing. "Upon principle," says Chief Justice Marshall, it would seem that the operation of every judgment must depend on the power of the court to render that judgment; or, in other words, on its jurisdiction over the subject-matter which it has determined. In some cases, that jurisdiction unquestionably depends as well on the state of the thing as on the constitution of the court. If by any means whatever a prize court should be induced to condemn, as prize of war, a vessel which was never captured, it could not be contended that this condemnation operated a change of property. Upon The act of Congress above referred to, which was passed 26th of May, 1790 (1 Stat. at L., 122), after providing for the mode of authenticating the acts, records and judicial proceedings of the states, declares, "and the said [*462 records and judicial proceedings, authenticated as aforesaid, shall have such faith and credit given to them in every court within the United States, as they have by law or usage in the courts of the state from whence the said records are or shall be taken." It has been supposed that this act, in connection with the constitutional provision which it was intended to carry out, had the effect of rendering the judgments of each state equivalent to domestic judgments in every other state, or at least of giving to them in every other state the same effect, in all respects, which they have in the state where they are rendered. And the language of this court in Mills v. Duryee, 7 Cranch, 484, seemed to give countenance to this idea. The court in that case held that the act gave to the judg ments of each state the same conclusive effect, as records, in all the states, as they had at home; and that nil debet could not be pleaded to an action brought thereon in another state. This decision has never been departed from in relation to the general effect of such judgments where the questions raised were not questions of jurisdiction. But where the jurisdiction of the court which rendered the judgment has been assailed, quite a different view has prevailed. Justice Story, who pronounced the judgment in Mills v. Duryee, in his Commentary on the Constitution, after stating the general doctrine established by that case with regard to the conclusive effect of judgments of one state in every other state, adds: "But this does not prevent an inquiry into the jurisdiction of the court in which the original judgment was given, to pronounce it; or the right of the state itself to exercise authority over the person or the subject-matter. The Constitution did not mean to confer [upon the states] a new power or jurisdiction, but simply to regulate the effect of the acknowledged jurisdiction over persons and things within their territory." Sec. 1313. In the Commentary on the Conflict of Laws, sec. 609, substantially the same remarks are repeated, with this addition: "It" (the Constitution) "did not make the judgments of other [*463 states domestic judgments to all intents and purposes, but only gave a general validity, faith and credit to them as evidence. No execution can issue upon such judgments without a new suit in the tribunals of other states. And they enjoy not the right of priority or lien which they have in the state where they are pronounced, but that only which the lex fori gives to them by its own laws in their character of foreign judgments." Many cases in the state courts are referred to by Justice Story in support of this view. Chancellor Kent expresses the same doctrine in nearly the same words, |