Opinion of the Court. 198 U. S. BIRRELL . NEW YORK AND HARLEM RAILROAD COMPANY. KIERNS . NEW YORK AND HARLEM RAILROAD COMPANY. ERROR TO THE SUPREME COURT OF THE STATE OF NEW YORK. Nos. 202, 203. Argued April 27, 28, 1905.-Decided May 15, 1905. Muhlker v. Harlem R. R. Co., 197 U. S. 544, followed. THE facts are stated in the opinion. Mr. Alfred B. Cruikshank for plaintiffs in error. Mr. Ira A. Place and Mr. Edward Winslow Paige, with whom Mr. Thomas Emery was on the brief, for defendants in error. MR. JUSTICE MCKENNA delivered the opinion of the court. Plaintiffs in error are owners of property on Park avenue in the city of New York, and brought these actions in the Supreme Court of the county of New York against the defendants in error for damages for the erection, and for an injunction against the continuance of, the viaduct described in Muhlker v. New York & Harlem Railroad Company, 197 U. S. 544. The Supreme Court found that the viaduct and the operation of trains thereon were and had been from certain dates which were mentioned, a continuous trespass upon the easements of light, air and access appurtenant to the property of plaintiffs in error, and that they sustained damages, respectively, as follows: Birrell in the sum of $3,360, depreciation in the rental value of her property, and the sum of $7,050 damages to the fee; Patrick Kierns, as executor and trustee of John Kierns, deceased, in the sum of $1,296, depreciation of rental value of his property, and $2,525 injury to the fee. Money judgments were entered for the depreciation of the rental value of the respective properties, and it was decreed that unless the right was acquired by the defendants to maintain the structure and operate the railroad by the payment of the sums awarded for the damages to the fee, injunctions should become operative against the structure and railroad. The judgments were affirmed by the Appellate Division, but were reversed by the Court of Appeals. Upon the return of the cases to the Supreme Court judgments were entered dismissing the complaints and these writs of error were then sued out. In the Birrell case the Court of Appeals contented itself with a simple reversal of the judgment; in the Kierns case a per curiam opinion was filed as follows: "Judgment reversed and the complaint dismissed, without costs, upon the authority of Fries v. New York & Harlem R. R. Co., 169 N. Y. 270, and Muhlker v. New York & Harlem R. R. Co., 173 N. Y. 549." Judge Vann filed a concurring opinion, which he concluded as follows: "I concurred in the dissenting opinion of Judge Cullen in the Fries case and should have concurred in that of Judge Bartlett in the Muhlker case had I sat when it was argued, but I regard the question as now settled, and by the rule of stare decisis I am compelled to vote for reversal.” The Muhlker case came to this court and was reversed, 197 U. S. 544. There are some differences in the facts in the cases at bar from that case, but none in our judgment which withdraw them from the principles there expressed. And, as we have seen, a substantial identity in the cases was pronounced by the courts of New York. Counsel, it is true, have submitted some additional considerations based on the act of 1892 under which the viaduct was erected, and on other laws of New York, to which con Argument for Plaintiff in Error. 198 U. S. siderations we have given due attention, but we do not think they demand or would justify a change of our ruling. It follows, therefore, that the judgments should be and they are hereby reversed, and the causes remanded for further proceedings not inconsistent with this opinion. The CHIEF JUSTICE, MR. JUSTICE WHITE, MR. JUSTICE PECKHAM and MR. JUSTICE HOLMES dissent. SAVANNAH, THUNDERBOLT AND ISLE OF HOPE RAILWAY v. SAVANNAH. ERROR TO THE SUPREME COURT OF THE STATE OF GEORGIA. No. 238. Argued April 28, 1905.-Decided May 15, 1905. There is no foundation for the jurisdiction of this court to review the judgment of the highest court of a State refusing to restrain the collection of a tax the imposition of which is not authorized by any law of the State. Barney v. City of New York, 193 U. S. 430. A classification which distinguishes between an ordinary street railway, and a steam railroad, making an extra charge for local deliveries of freight brought over its road from outside the city, held, under the facts of this case, not to be such a classification as to make the tax void under the Fourteenth Amendment because it denies the street railway the equal protection of the law, or deprives it of its property without due process of law. Where none of the expressions in a contract between a street railway company and the municipality in regard to the extension of company's tracks for the better advantage of, and affording more facilities to, the public, import any exemption from taxation, the subsequent imposition of a tax, otherwise valid, is not invalid under the impairment of obligation clause of the Constitution. THE facts are stated in the opinion. Mr. David C. Barrow, with whom Mr. George A. King was on the brief, for plaintiff in error: This tax is imposed on the plaintiff in error because it does business in the city of Savannah, and for the use of the streets 198 U. S. Argument for Plaintiff in Error. of the city in doing it. The railway is both within the city limits and outside of the city. The Central of Georgia Railway Company, a steam railroad, is engaged in business within the limits of the city, using a total of five miles of the streets. Its lines also extend outside of the city of Savannah. The business carried on by the plaintiff in error and the business carried on by the Central of Ga. R. R. Co. are both local, from one point within the city limits to another point within the city limits. The only differences between the two are that plaintiff in error operates by electricity and in the business done in the city of Savannah transports freight and passengers while the Central of Ga. R. R. Co. operates by steam and in the business done in the city of Savannah transports freight. The difference between these two corporations is not sufficient to justify a classification which puts the electric railway in one class and imposes a burden on it of $100 per mile per annum and puts the commercial railway in a separate class and exempts it from any tax. This court recognizes the definition of the class as contained in the taxing act and the classification must be justified under such definition. Magoun v. Ill. Trust & Savings Bank, 170 U. S. 283, 296; Pacific Express Co. v. Seibert, 142 U. S. 339. In order to sustain a classification based not upon the kind of business carried on, but upon the special privileges granted, the enjoyment of the privileges places the person taxed in a separate and distinct class by reason of such privilege. The taxing power can not base its classification on the privilege granted and impose a burden therefor without going further and seeing to it that no one is omitted from the burden, whatever their business may be or they may be called, who enjoy the same privileges. Gulf, Colorado & Santa Fé Ry. v. Ellis, 165 U. S. 150, 157; Merchants' Bank v. Pennsylvania, 167 U. S. 461, 465. In this case the city has failed to treat all persons alike under like circumstances and conditions, both in the privileges conferred and the liabilities imposed. Hayes v. Missouri, 120 Argument for Plaintiff in Error. 198 U. S. U. S. 68, 71; Soon Hung v. Crowley, 113 U. S. 703, 709; Billings v. Illinois, 188 U. S. 97. This court has recognized the principle that in determining whether or not corporations belonged to the same class it is necessary to consider whether they are held by the taxing power as equally responsible and liable in other matters relating to their business. Missouri Pacific Ry. Co. v. Mackey, 127 U. S. 205, 210; Minn. & St. Louis Ry. v. Beckwith, 129 U. S. 26, 29. The prohibition of the Constitution against the impairment of the obligations of contracts applies to implied as well as express contracts. Fisk v. Jefferson Police Judge, 116 U. S. 131; Construction Co. v. Fitzgerald, 137 U. S. 98, 112. The whole contract must be brought into view and interpreted with reference to the nature of the obligations between the parties and the intentions they have manifested in forming them. O'Brien v. Miller, 168 U. S. 287, 297; Goddard v. Foster, 17 Wall. 123, 142; Black v. United States, 91 U. S. 267. Where the court from all the circumstances surrounding the contract and the consideration and acts of the parties implies certain stipulations it does not thereby vary the contract or introduce new terms into it, but declares that certain acts unexplained by the compact impose certain duties and that the parties had stipulated for their performance. Ogden v. Saunders, 12 Wheaton, 341, 342. The city having accepted the benefits under the contract with the plaintiff in error, this ordinance imposing a tax for the privilege of using those streets named in the contract, impairs the obligations of the same. Chicago v. Sheldon, 9 Wall. 50; St. Louis v. West. Union Tel. Co., 63 Fed. Rep. 68; Iron Mountain R. Co. v. Memphis, 96 Fed. Rep. 113; Mercantile Trust Co. v. Collins Park & B. R. Co., 101 Fed. Rep. 347. An ordinance of a city council providing for an extension of the tracks of a street railway and fixing the rate of fare constitutes a contract which is impaired in violation of the Constitution of the United States by a subsequent ordinance |