lature may see fit to adopt, and the question of the right to impose the tax, as a condition of the exercise of the privilege, resolves itself into the broader question of the right to prohibit it altogether; for that which the legislature may license it may forbid. Indeed, it is forbidden unless it is licensed. The question, thus reduced, becomes one, not of the limitations upon the taxing powers of the state, but upon its power to declare the business of this company, as carried on upon and across its territory, a privilege, or to forbid it altogether. "Beyond question," said Mr. Justice CLIFFORD, delivering the opinion of the court in Transportation Co. v. Wheeling, 99 U. S. 273-279, "these authorities show that all subjects over which the sovereign power of a state extends are objects of taxation, the rule being that the sovereignty of a state extends to everything which exists by its own authority or is introduced by its permission, except those means which are employed by congress to carry into execution the powers given by the people to the federal government, whose laws, made in pursuance to the constitution, are supreme."

And according to the decision in Crandall v. Nevada, 6 Wall. 35, the power of the states, whether exerted in the form of taxation or otherwise, is still further limited, so as not to deny or impair any rights belonging to citizens of the United States, as such, by virtue of the constitution, as in that case, the right of the people to pass and repass into, through, and out of any state, without interruption. In that case Mr. Justice MILLER, delivering the opinion of the court, after commenting on the case of McCulloch v. Maryland, 4 Wheat. 316, said (page 46:)

"It will be observed that it was not the extent of the tax in that case which was complained of, but the right to levy any tax of that character. So in the case before us it may be said that a tax of one dollar for passing through the state of Nevada by stage, coach, or railroad cannot sensibly affect any function of the government or deprive a citizen of any valuable right. But if the state can tax a railroad passenger one dollar, it can tax him $1,000. If one state can do this, so can every other state. And then one or more states, covering the only practicable routes of travel from the east to the west or from the north to the south, may totally prevent or seriously burden all transportation of passengers from one part of the country to another."

In the case of the State Freight Tax, 15 Wall. 232-281, it was distinctly declared that the transportation of passengers or merchandise through a state, or from one state to another, was subject to the exclusive jurisdiction of congress, and that a state could not directly tax persons or property passing through it, or tax them indirectly by levying a tax upon their transportation. And in Almy v. State of California, 24 How. 169, as explained in Woodruff v. Parham, 8 Wall. 123-138, it was decided that a stamp tax imposed by state authority upon bills of lading for the transportation of gold and silver from one point within the state to any point without the state "was a regulation of commerce, a tax imposed upon the transportation of goods from one state to another over the high seas, in conflict

with that freedom of transit of goods and persons between one state and another, which is within the rule laid down in Crandall v. Nevada, 6 Wall. 35, and with the authority of congress, to regulate commerce among the states." If a tax upon the person or thing carried is a regulation of commerce forbidden to the states, it seems impossible to escape the conclusion that a tax imposed as the price of the privilege of being carried is equally such a regulation. It is immaterial whether the privilege granted or withheld is attributed to the carrier or to that which he is engaged in carrying. In both cases it is a burden upon the act of transportation and a tribute levied directly upon commerce itself. In the language of Mr. Justice STRONG, delivering the opinion of the court in the case of the State Freight Tax, 15 Wall. 232-281:

"Interstate transportation of passengers is beyond the reach of the state legislature. * ** We regard it as established that no state can impose a tax upon freight transported from state to state, or upon the transporter because of such transportation."

The case is to be distinguished from that of Osborne v. Mobile, 16 Wall. 479, where the subject of the tax was not the act of transportation itself, but a general business carried on within the state by a resident citizen thereof, which included the making of contracts for transportation beyond the limits of the state. Nor is it within the decision of the case of Wiggins Ferry Co. v. East St. Louis, 107 U. S. 365; S. C. 2 Sup. Ct. Rep. 257, where the point ruled was that the levying of a tax upon vessels or other water-craft, or the exaction of a ferry license by the state within which the property subject to the exaction has its situs is not a regulation of commerce within the meaning of the constitution of the United States.

In the present case the Pullman Southern Car Company, a corporotion of Kentucky, has no domicile in Tennessee, and is not personally subject to its jurisdiction for purposes of taxation, and the sleeping cars which it runs and uses upon the railroads of that state, in the transportation of passengers into and from it, from and to other states, have no situs within that state for the purposes of taxation. They are not brought into the state for the purpose of being employed in a business carried on within it, and do not become a part of the mass of property within the jurisdiction of the state for purposes of taxation. They are in the state only as passing to and from it while in the act of transportation, performed by virtue of a right secured to the owners of them; not by the authority of the laws of Tennessee, but by virtue of a right secured by the exclusive jurisdiction of congress under the constitution.

It has been suggested that these sleeping cars do not really perform any office in the act of transportation, but may be likened rather to hotels or inns on wheels, and, like other hotels or inns, subject to regulation and license by the state; but the refinement is too subtle to be sound. Even regarded as such, hotels or inns on wheels, pro

pelled by steam-power over railroad tracks, receiving and delivering travelers at points widely separated in distance, would properly be considered still as vehicles of transportation, and their use in that way would be commerce. The conclusion reached from these considerations is that the right to levy a tax upon the running and using of sleeping cars or coaches on railroads in Tennessee, not owned by the railroads upon which they are run or used as a privilege, can rest only upon a concession that the state may regulate it in all other respects, or forbid it altogether; that, consequently, it is a regulation of commerce among the states when applied to such cars employed in interstate transportation, and in that application contrary to the constitution of the United States, and therefore null and void.

In accordance with this opinion, judgments and decrees will be entered in these cases as follows: (1) In No. 2,582, the action against the comptroller to recover the taxes paid under protest as illegally exacted, the demurrer will be overruled, and judgment rendered for the plaintiff for such amount as may be agreed on or otherwise ascer tained. (2) In No. 2,591 a decree will be rendered finding the equity of the cause with the complainant, and granting the relief prayed, enjoining the several county authorities from proceeding further in the collection of the tax. (3) In No. 2,679 the bill of the state will be dismissed for want of equity.

RUBEL V. BEAVER FALLS CUTLERY Co.

(Circuit Court, N. D. Illinois. November 24, 1884.'

PRACTICE-ACTION AGAINST FOREIGN CORPORATION-SERVICE ON AGENT-MOTION TO QUASH-PLEA IN ABATEMENT-ILLINOIS STATUTE.

The question of fact as to whether a party on whom service of summons in an action against a foreign corporation was made under Illinois statute was at the time of such service an agent of the corporation can only be raised by plea in abatement, unless the grounds of the motion to quash the return of service appear on the face of the record.

Motion to Quash Return of Service.

Kerr & Barr and Ira W. Rubel, for complainant.

Wm. A. Montgomery, for defendant.

BLODGETT, J. This is an action of assumpsit. The defendant is a non-resident corporation, and the return of the marshal on the summons is that he has served the same by reading and delivering a copy thereof to Arthur Brittan, agent of defendant, having been unable to find the president of the defendant company in this district. The defendant entered a special appearance, and moved to quash the return of service on the ground that Brittan, on whom the summons was served as agent of defendant, is not, and was not at the date of

the service, an agent of defendant on whom service of process against defendant could lawfully be made. The plaintiff now moves to strike this motion from the files, on the ground that the question of fact as to whether Brittan was such agent can only be raised by plea in abatement, unless the grounds of the motion to quash appear on the face of the record.

By section 914, Rev. St., it is declared that the practice, pleadings, and forms and modes of proceeding in civil cases in the United States courts, other than in equity and admiralty cases, shall conform as near as may be to the practice, pleadings, and forms and modes of proceeding in like causes in the courts of record of the states within which such courts are held. This provision being substantially the fifth section of the act of June 1, 1872, entitled, "An act to further the administration of justice." The important question, then, is to determine what is the proper practice in the courts of record of this state in suits of a like nature with this.

By an act of the general assembly of this state, passed February 8, 1853, it was provided that service of process on an incorporated company, in this state should be made by leaving a copy with the president, or if the president was not found in the county, then with any clerk, cashier, secretary, engineer, conductor, or other agent of such company found in the county, and this provision is substantially found in section 5, c. 110, Rev. St. Ill. 1874. In Mineral Point R. Co. v. Keep, 22 Ill. 9, the supreme court of this state construed this statute, and held that its provisions applied to foreign corporations doing business through their agents and officers in this state, but that the return of the sheriff was not conclusive upon the fact of the agency of the person on whom the process was served, and that the defendant could by plea in abatement put in issue the fact of the agency of the person on whom the process was served, the court, in its opinion, saying:

* * *

"Great injustice and ruin to incorporated companies might be the consequence had the officer the undisputed power to select any person he might choose as the agent of a company sued, and serve the process upon him; that he was the agent must be held to be a fact open to the country. Our statute authorizing service of process on an agent or conductor is an innovation upon the ancient practice, and no greater force and effect should be given to it than is absolutely necessary. When a party sues an incorporated company, whose president and whose place of doing business is out of the county where suit is brought, and causes his process to be served on one whom he chooses to consider the agent of the company, it is no hardship to require him to prove such person was the agent. We think, therefore, that the fact of agency could have been put in issue by plea in abatement of the writ, the defendants appearing for that purpose only. By such practice no injustice can be done. If the issue is found against the company, and the fact of agency established, leave will always be given to plead to the merits."

In Sibert v. Thorp, 77 Ill. 43, the supreme court went still further, and held that any defendant might put the truth of the return of the sheriff upon the process in issue by plea in abatement; that instead

of the officer's return upon the process being conclusive upon the defendant it is only prima facie evidence of the matters therein stated, although the court admitted that this decision was in conflict with the dieta in many of its earlier decisions. And in National Bank v. National Bank, 90 Ill. 56, the rule in Mineral Point R. Co v. Keep and Sibert v. Thorp was affirmed. It is true there are some expressions in Protection Life Ins. Co. v. Palmer, 81 Ill. 88, which seem repug nant to the rule laid down in Mineral Point R. Co. v. Keep, supra, and Sibert v. Thorp, supra; but in the later case, in 90 Ill., the court expressly says there was no intention in Protection Life Ins. Co. v. Palmer to overrule the previous decision in Mineral Point R. Co. v. Keep, and reiterates the rule that the only way to traverse the return of service made by the officer serving the process is by a plea in abatement. It is true that in Mineral Point R. Co. v. Keep the court said: "If the issue is found against the company, and the fact of agency established, leave will always be given to plead to the merits;" while in Brown v. Illinois Cent. Mut. Ins. Co. 42 Ill. 366, it was held that if the issue of fact on such a plea was found against the defendant, the judgment must go against him. And in 1 Chit. Pl. 464, it is said: "If the issue of fact be joined upon the replication, and found for the plaintiffs, the jury should assess the damages, and the judg ment is peremptory, for the delay quod recuperet and not respondent ouster." And the same rule was applied in McKinstry v. Pennoyer, 1 Scam. 319, and Motherell v. Beaver, 2 Gilm. 70.

It may therefore be considered that under the Illinois cases, both before and since Mineral Point R. Co. v. Keep, the expression used in the latter case that "leave will always be given to plead to the merits," if the defendant fails to sustain his plea in abatement, has been overruled, and that the common-law rule of judgment, quod recuperet, must be followed. A brief examination of Mineral Point R. Co. v. Keep shows that the question as to what judgment the court should render when the issue on such a plea is found against the defendant was not before the court, and the expressions on that point in the opinion may be considered as obiter even if the court had not since, in effect, so ruled. But it is urged that the practice of the United States courts is different from that indicated by the Illinois authorities. It may be sufficient to say that the question in this case is to determine what is the proper practice in the Illinois courts, and then follow their rule, but I do not think the cases cited by defendant sustain the practice. In Halsey v. Hurd, 6 McLean, 14, the defect in the service appeared upon the face of the return, and was properly brought to the attention of the court by motion to quash the service. In Juneau Bank v. McSpedan, 5 Biss. 64, a non-resident party to a suit, while in necessary attendance upon the court where his suit was pending, was served with process in another suit, and the court, on motion, held that he was privileged from suit under the circumstances, and set aside the service as it might properly do, as all the facts ap