the only difference is that one does more business than the other. But the receipt of an extra 2 head of cattle per day does not change the character of the business. If once the door is opened to the affirmance of the proposition that a state may regulate one who does much business, while not regulating another who does the same but less business, then all significance in the guaranty of the equal protection of the laws is lost, and the door is opened to that inequality of legislation which Mr. Justice Catron referred to in the quotation above made. This statute is not simply legislation which in its indirect results affects different individuals or corporations differently, nor with those in which a classification is based upon inherent differences in the character of the business, but is a positive and direct discrimination between persons engaged in the same class of business, and based simply upon the quantity of business which each may do. If such legislation does not deny the equal protection of the laws, we are unable to perceive what legislation would. We think, therefore, that the principle of the decision of the supreme court of Kansas in State v. Haun, 61 Kan. 146, 47 L. R. A. 369, 59 Pac. 340, is not only sound, but is controlling in this case, and that the statute must be held unconstitutional as in conflict with the equal protection clause of the 14th Amendment. There yet remains a question of jurisdiction. The two suits which were consolidated were each brought by a stockholder in behalf of himself and all other stockholders against the corporation, its officers, and also the attorney general of the state of Kansas. The object of the suits was to restrain the attorney general from putting in force the [113] statute, and the *defendants from reducing the funds of the corporation, and therefore the dividends to the stockholders, by yielding compliance to the mandates of the statute, and failing to charge reasonable rates. Of the jurisdiction of the court over the consolidated suit as one involving a controversy between the stockholders and the corporation and its officers, no serious question is made. Dodge v. Woolsey, 18 How. 331, 15 L. ed. 401; Hawes v. Oakland, 104 U. S. 450, sub nom. Hawes v. Contra Costa Water Co. 26 L. ed. 827; Pollock v. Farmers' Loan & T. Co. 157 U. S. 429, 39 L. ed. 759, 15 Sup. Ct. Rep. 673; Smyth v. Ames, 169 U. S. 466, 42 L. ed. 819, 18 Sup. Ct. Rep. 418, seem conclusive on the question. There is no force in the suggestion that the officers of the corporation agreed with the stockholders as to the unconstitutionality of the statute, and that therefore the suit is a collusive one. That was the condition in Dodge v. Woolsey, 18 How. 331, 15 L. ed. 401, and it only emphasizes the fact that the officers were refusing to protect the interests of the stockholders, not wantonly, it is true, but from prudential reasons. But the serious contention is that the court had no jurisdiction over the suit as against the attorney general of the state, and this on two grounds: First, because it is in effect a suit against the state, and therefore forbidden by the 11th Amendment to the Federal Constitution; and, secondly, because it is an attempt on the part of a court of equity to restrain criminal proceedings. It is contended on the other hand that it is not a suit against the state, because it does not in any way involve its pecuniary interest, and is only an effort to prevent an officer of the state from putting in force an unconstitutional statute; that it does not attempt to interfere with criminal proceedings, because none have been comimenced and none are pending, but involves simply a challenge of the constitutionality of the statute. It is also urged that the attorney general when served with process did not raise either defense; did not suggest that this was in effect a suit against the state, or that it was an attempt to interfere with criminal proceedings; that he pleaded several defenses and went into a trial of the merits on a motion for permanent injunction; took part in the taking of an immense amount of testimony and in an argument before the trial judge upon the question of the validity of the statute, and when its [114] validity had been adjudged, then, for the first time and as a preliminary to a final decree to be entered without further testimony, filed an answer containing a formal plea that the suit was one in effect against the state. It is further contended that by the statutes of Kansas (Kan. Comp. Laws 1879, p. 901, § 5589) the governor may require the attorney general to appear for the state in any court and prosecute or defend therein any cause or matter, civil or crininal, in which the state may be a party or interested, and that while no request from the governor was shown the trial court was justified, in the absence of some challenge of its jurisdiction, in assuming that such request had been given, and that it would be grossly inequitable, after a full inquiry upon the merits in such court and an adjudication in favor of the validity of the statute, to permit the attorney general by a formal plea of jurisdiction to prevent any review of the merits in this court. Without expressing any opinion as to the jurisdiction of the court if it had been properly and seasonably challenged, we think the true solution of this matter will be found in reversing the decree upon the merits, and directing a dismissal of the suit as to the attorney general, without prejudice to any other suit or action. It is therefore ordered that the decrce of the Circuit Court be reversed, and the case remanded to that court, with instructions to enter a decree in favor of the plaintiffs and against the corporation and its officers, in accordance with the prayer of the bills, and also a decree dismissing the suit as to the attorney general of Kansas, without prejudice to any further suit or action. Mr. Justice Harlan, with whom concurred Mr. Justice Gray, Mr. Justice Brown, Mr. Justice Shiras, Mr. Justice White, and Mr. Justice McKenna: We assent to the judgment of reversal— so far as the merits of this case are concerned-upon the ground that the statute of Kansas in question is in violation of the 14th Amendment of the Constitution of the United States in that it applies only to the Kansas City Stock-Yards Company, and [115]not to other companies or corporations engaged in like business in Kansas, and thereby denies to that company the equal protection of the laws. Upon the question whether the statute is unconstitutional upon the further ground that, by its necessary operation, it will deprive that company of its property without due process of law, we deem it unnecessary to express an opinion. WILLIAM B. DINSMORE and C. Gray Dinsmore, and William B. Dinsmore, C. Gray Dinsmore, and Dumont Clarke, as Executors and Trustees under the Will of William B. Dinsmore, Deceased, Petitioners, v. SOUTHERN EXPRESS COMPANY, L. N. Trammell, Thomas C. Crenshaw, Jr., and Spencer R. Atkinson, Composing the Railroad Commission of the State of Georgia, et al. (See S. C. Reporter's ed. 115-121.) War revenue act-express companies-effect of amendatory act. The exemption of express companies by the amendatory act of March 2, 1901, chap. 806, from the requirement of the war revenue act of June 13, 1898, chap. 448, in relation to ad hesive stamps to be placed upon bills of lad ing, manifests, or other evidences of the receipt of goods for carriage or transportation, requires the affirmance on certiorari, without reference to the merits of the case as affected by the earlier act, of a judgment of the circuit court of appeals effecting the dismissal of a suit to prevent the application by an express company of any of its moneys to meet this requirement. [No. 136.] Mr. Frank H. Miller argued the cause and filed a brief for petitioners. Mr. William K. Miller also argued the cause for petitioners. Mr. Joseph M. Terrell argued the cause and filed a brief for 1espondent, the Railroad Commission of Georgia. Mr. Fleming duBignon filed a statement for respondent, the Southern Express Company, in response to notice of application for writ of certiorari. *Mr. Justice Harlan delivered the opinion[116] of the court: William B. Dinsmore and others, citizens of New York,-some of them being executors and trustees under the will of the late William B. Dinsmore of that state,-brought this action on the 17th day of April, 1897, in the circuit court of the United States for the southern district of Georgia against the Southern Express Company, a corporation of Georgia having its principal place of business in that state, and also against L. N. Trammell, Thomas C. Crenshaw, and Spencer R. Atkinson, constituting the Railroad Commission of Georgia, and Joseph M. Terrell, Attorney General of Georgia, the individual defendants being citizens of Georgia. The plaintiffs sued as owners and holders of shares of stock in the defendant express company, and sought a decree that would prevent the application by that corporation of any of its moneys to meet the requirement of the war revenue act of June 13th, 1898, chap. 448, in relation to adhesive stamps to be placed upon bills of lading, manifests, or other evidences of the receipt of goods for carriage or transportation. referred is the following: "Express and Freight: It shall be the duty of every railroad or steamboat company, carrier, express company, or corporation, or person whose occupation is to act as such, to issue to the shipper or consignor, or his agent, or person from whom any goods are accepted for transportation, a bill of lading, manifest, or other evidence of receipt and forwarding for each shipment received for carriage and transportation, whether in bulk or in boxes, bales, packages, bundles, Argued February 25, 1901. Decided No- or not so inclosed or included; and there vember 18, 1901. shall be duly attached and canceled, as is in this act provided, to each of said bills of WRIT of Certiorari to the United lading, manifests, or other memorandum, O`States Circuit Court of Appeals for the and to each duplicate thereof, a orandum Fifth Circuit to review a decision reversing a decree of the Circuit Court for the Southern District of Georgia which enjoined the enforcement of an order of the Railroad Commission of Georgia requiring an express company to pay the war stamp tax. Affirmed. See same case below, 42 C. C. A. 623, 102 Fed. 794. The facts are stated in the opinion. NOTE. On the effect of statutes to defeat or preserve pending civil actions-see Pritchard v. Savannah Street & Rural Resort R. Co. (Ga.) 14 L. R. A. 721, and note. And see note to United States v. Tynen, 20 L. ed. U. S. 153. the value of one cent: Provided, That but[117] one bill of lading shall be required on bundles or packages of newspapers when inclosed in one general bundle at the time of shipment. Any failure to issue such bill of lading, manifest, or other memorandum, as herein provided, shall subject such railroad or steamboat company, carrier, express company, or corporation, or person to a penalty of fifty dollars for each offense, and no such bill of lading, manifest, or other memorandum shall be used in evidence unless it shall be duly stamped as aforesaid." 30 Stat. at L. 448, 459, chap. 448. After the passage of the above act com plaint was made by citizens of Georgia to are hereby, enjoined from any and all order, direction, action, or legal steps instituting or tending to institute, and from any and all proceedings for the recovery of the penalties named in the statute of Georgia in that behalf to enforce compliance with its said order against the Southern Express Company, its oflicers or agents, as threatened in the order of said commission, dated August 2, 1898, for the reason that said order is null and void, and said commission has no jurisdiction to adjudge and designate the party who shall pay said tax." The court in its opinion said: “It is not deemed necessary to enjoin the attorney general, for it is presumed that the eminent lawyer who is the official head of the bar of the state The company appeared and denied the ju- will, without such injunction, accord all aprisdiction of the commission. But on Au-propriate respect to the decision of the gust 2d, 1898, the commission, after hear- court." ing the parties, ordered that the required stamp be supplied by the express company, and not by shippers in whole or in part. Appropriate allegations having been made to show that the suit was not a collu sive one to confer on a court of the United States jurisdiction of the case, of which it would not otherwise have cognizance, the relief asked was That it be adjudged and decreed that the order of the railroad commission of the state of Georgia of August 2d, 1898, requiring the express company to pay the amount of the war revenue tax on business from one point to another in the state without endeavoring to collect the same from shippers, or requiring them to make the payment [118]thereof before the issuing *of receipts or bills of lading, was unconstitutional, null, and void; that the express company, its officers and agents, be restrained from voluntarily complying with the order of the commission of August 2d, 1898, and paying such tax; that the attorney general of the state be restrained from instituting any suit against the express company for the purpose of enforcing the provisions of the above order of the railroad commission; that a perpetual injunction, of the same purport, tenor, and effect be granted to complainants; and that the plaintiffs have such other and further relief in the premises as the nature of the case required and to a court of equity might seem meet. The railroad commissioners and the attorney general of the state severally demurred to the bill. The case having been argued upon the demurrers, Judge Speer delivered an opinion which is reported in 92 Fed. 714. That opinion was accompanied by the following order, entered March 7th, 1899: "It is now upon consideration ordered, adjudged, and decreed that the prayer that the Southern Express Company be enjoined from voluntarily paying the war stamp tax in question be, and the same is hereby, denied; ordered, adjudged, and decreed further that the defendants, the Railroad Commission of Georgia, and each member thereof, to wit, the individual defendants, Leander N. Trammell, Thomas C. Crenshaw, Jr., and Spencer R. Atkinson, be, and the same *Upon appeal to the circuit court of ap-[119] peals the decree of the circuit court was reversed, June 7th, 1900, with directions to dismiss the case, Judge McCormick delivering the opinion of the court, Judge Shelby dissenting. 42 C. C. A. 623, 102 Fed. 794. The case was thereupon brought to this court upon writ of certiorari, and was submitted for decision at the last term. After the submission of the case in this court the above part of the war revenue act of 1898 relating to stamps to be attached to bills of lading, manifests, etc., was amended in important particulars by an act of Congress approved March 2d, 1901, chap. 806. One amendment, which took effect on and after July 1st, 1901, provided that the above part of the act of 1898 should be amended to read as follows: "Freight: It shall be the duty of every railroad or steamboat company, carrier, or corporation, or person whose occupation is to act as such, except persons, companies, or corporations engaged in carrying on a local or other express business, to issue to the shipper or consignor, or his agent, or person from whom any goods are accepted for transportation, a bill of lading, manifest, or other evidence of receipt and forwarding for each shipment received for carriage and transportation, whether in bulk or in boxes, bales, packages, bundles, or not so inclosed or included; and there shall be duly attached and canceled, as is in this act provided, to each of said bills of lading, manifests, or other memorandum. and to each duplicate thereof, a stamp of the value of one cent: Provided, That but one bill of lading shall be required on bundles or pack. ages of newspapers when inclosed in one general bundle at the time of shipment. Any failure to issue such bill of lading, manifest, or other memorandum, as herein provided, shall subject such railroad or steamboat company, carrier, or corporation, or person to a penalty of fifty dollars for each offense, and no such bill of lading, manifest, or other memorandum shall be used in evidence unless it shall be duly stamped as aforesaid." 31 Stat. at L. 938, 945, chap. 806. This change in the law renders it unnec essary to consider any of the important v. MERCHANTS' LOAN & TRUST COM- (See S. C. Reporter's ed. 121-129.) Appeal-agreed statement when equiva lent of special finding-question for review. questions determined in the circuit court |E. T. WILSON, Receiver of the First Na and circuit court of appeals under the act tional Bank of Helena, Montana, Piff. in of 1898. The object of this suit was to pre- Err., [120]vent the enforcement of the order of the railroad commission based upon its construction of that act. But whatever might be now held as to the meaning and scope of the act of 1898 as applied to express companies, the amendatory statute of 1901, in declaring what companies, corporations, and persons shall attach the required stamp to bills of lading, manifests, and receipts for goods or other property to be transported, distinctly excludes express companies. So that no actual controversy now remains or can arise between the parties. The plaintiffs do not need any relief, because the act of 1901 accomplishes the result they wished. Although this cause was determined in the circuit court of appeals and was submitted here prior to July 1st, 1901, our judgment must have some reference to the act of 1901. In United States v. The Peggy, 1 Cranch, 103, 109, 2 L. ed. 49, 50, the Chief Justice, delivering the opinion of the court, said: "It is in the general true that the province of an appellate court is only to inquire Argued October 29, 30, 1901. Decided Decem whether a judgment when rendered was erroneous or not. But if, subsequent to the judgment, and before the decision of the ap pellate court, a law intervenes and positively changes the rule which governs, the law must be obeyed, or its obligation denied. If the law be constitutional, and of that no doubt in the present case has been expressed, I know of no court which can contest its obligation." Mills v. Green, 159 U. S. 651, 653, 40 L. ed. 293, 16 Sup Ct. Rep. 132; New Orleans Flour Inspectors v. Glover, 160 U. S. 170, 40 L. ed. 382, 16 Sup. Ct. Rep. 321, 161 U. S. 101, 40 L. ed. 632, 16 Sup. Ct. Rep. 492. If the cause had not been submitted in the circuit court of appeals until after the act of 1901 took effect, that court, we apprehend, would have dismissed the suit upon the ground that by the operation of that legislation the whole subject-matter of litigation had disappeared, and that the order of the railroad commission, even if originally valid, ceased to have any effect. The question whether the express company or the shipper was required by the act of 1898 to furnish the required stamp, as well as the question whether the railroad commission had any power to make the order of which complaint is made, would thus have become immaterial, and the dismissal of the suit would have resulted without any reference to the merits of the case as affected by the act of 1898. [121] As the order of the circuit court of appeals directing the dismissal of the suit accomplishes a result that is appropriate in view of the act of 1901, we need not consider the grounds upon which that court proceeded, or any of the questions determined by it or by the circuit court; and the judgment must be affirmed without costs in this court. It is so ordered. 183 U. S. U. S., Book 46. An agreed statement of facts cannot be taken as the equivalent of a special finding of facts, within the meaning of U. S. Rev. Stat. §§ 649, 700, providing for a waiver of trial by jury and the proceedings on a trial by the court, so that an exception to a general finding of the court upon such statement will bring up a question for review, where such agreed statement contains, in addition to certain ultimate facts, other evidential facts from which a material ultimate fact might be inferred, but which is not agreed upon or found. [No. 67.] ber 2, 1901. I Court of Appeals for the Seventh Cir N ERROR to the United States Circuit cuit to review a judgment affirming a judg ment of the District Court of Illinois in favor of defendant in an action to enforce an assessment upon shareholders in a national bank. Affirmed. See same case below, 39 C. C. A. 231, 98 Fed. 688. The facts are stated in the opinion. Mr. Delevan A. Holmes argued the cause, and, with Mr. W. E. Mason, filed a brief for plaintiff in error: The judgment and finding of the court amount to no more than a declaration that the court found the law to be in favor of defendant on the case as stated. Wayne County v. Kennicott, 103 U. S. 554, 26 L. ed. 486. If there is an agreed statement of facts submitted to the trial court and upon which its judgment is formed, such agreed statement of facts will be taken as the equivalent of a special finding of fact. 373, 13 Sup. Ct. Rep. 481. its wherever and whenever the record places United States v. Eliason, 16 Pet. 292, 10 L ed. 969; Stimpson v. Baltimore & S. R. Co. 10 How. 329, 13 L. ed. 441; Suydam v. Williamson, 20 How. 427, 15 L. ed. 978. Mr. John N. Jewett argued the cause and filed a brief for defendant in error: The duty and responsibility of determin NOTE. On review of judgment rendered on agreed statement of facts-see note to Stimpson v. Baltimore & S. R. Co. 13 L. ed. U. S. 442. 113 8 ing questions of fact in cases at law are, by Reed v. Stapp, 3 C. C. A. 244, 9 U. S. App. Lancaster v. Collins, 115 U. S. 222-225, 29 When a case is tried by a Federal judge [121] *Mr. Justice Peckham opinion of the court: delivered the ought not to maintain his action "because it says that it did not, at any time between the 1st day of December, 1894, and the 1st day of June, 1895, or at any other time, purchase or become the owner of 120 shares of the capital stock of the said First National Bank of Helena, Montana, or any share or shares of the capital stock of said bank, and of this the said defendant puts itself upon the country," etc. Under these pleadings the plaintiff. of course, had the burden of proving ownership of the stock by the defendant. The parties waived a trial by jury and entered into the following stipulation: "It is hereby stipulated and agreed be tween the parties herein that trial by jury [123 in this case be waived; that this cause may he submitted to the Honorable Christian C. Kohlsaat. judge of this court, upon the foregoing statement of facts duly signed by the attorneys of the parties respectively, and that for the purpose of such trial the said statements of facts shall be taken as absolutely true, and shall be taken and consid ered as all the facts concerning the transactions therein referred to, subject to any and all objections which might properly be urged to the competency or materiality of any part thereof. such statement contained all the evidence in the case, which was thereupon submitted to the court for its decision. The court made no special findings of facts, but made a general finding of the issues for the defendant. embodied in a judgment which was entered as follows: The plaintiff in error brings this case here to review a judgment of the United States Upon the trial before the court without a circuit court of appeals for the seventh cir- jury, the statement of facts as agreed upon. cuit (39 C. C. A. 231, 98 Fed. 688) affirm-between the parties was put in evidence, and ing a judgment of the district court of Illinois in favor of the defendant. The plaintiff in error is the receiver of the First Na[122]tional Bank of Helena, Montana, and brought this action against the defendant to enforce an assessment of 100 per cent ordered by the Comptroller of the Currency on all owners of shares in that bank. In his declaration the plaintiff, after alleging the organization of the bank, his appointment as receiver, and the assessment by the Comptroller, averred that "the Merchants' Loan & Trust Company, a corporation, at some time between the 1st day of December, 1894, and 1st day of June, 1895 (the exact date being to plaintiff unknown), purchased and became the owner of 120 shares of the capital stock of said First National Bank of Helena, Montana, of the par value of $100 each, and continued to be, and was at the time said bank suspended and ceased to do business, the real owner of the same; but, in order to evade the responsibility imposed by law upon the shareholders in said bank, caused said shares to be placed on the books of said bank in the name of P. C. Peterson, one of its employees, in whose name said shares appeared on the said books at the time of said failure. And the plaintiff avers that the said Peterson was at the time said stock was issued to him as aforesaid, and at the time of the failure of said bank, a person of small means and not responsible financially." The plaintiff demanded judgment for the sum of $12,000, being $100 on each share of the stock in the bank owned (as alleged) by the defendant. As one of several defenses to the action. the defendant pleaded that the plaintiff "Now come the parties by their attorneys, and thereupon a jury is waived by written stipulation. and this cause is submitted to the court for trial, and the court, having heard the evidence and arguments of counsel, and being now fully advised, finds the issues for the defendants, to which finding the plaintiff excepts, and thereupon the plaintiff enters his motion for a new trial, which is heard and overruled, to which ruling the plaintiff excepts. It is thereupon considered and adjudged by the court that the defendants recover of the plaintiff their costs in this behalf, to be taxed, and that execution issue therefor, to which judgment the plaintiff then and there excepts." The statement of facts agreed upon and filed in the court was subsequently allowed as a bill of exceptions. There was no exception taken to any fact contained in this. statement, nor in the progress of the trial, nor was there any request to find other spe cial facts. The only exception taken was to the general finding of the court in favor of the defendant. From this agreed statement of facts it appears that on April 15, 1893, the defendant loaned to one Ashby of Hele na, Montana, $12,000, and took his note in the usual form payable on August 16, 1893.. As collateral security for the payment of the note at maturity, Ashby signed in blank and delivered to the defendant a certificate rep |