Argument for Appellant. 201 U.S. where by the provisions of the law under which they are levied they become a lien upon the real property of the party against whom they are levied and a cloud upon his title, and the remedy at law is held to be inadequate. Union Pacific R. R. Co. v. Cheyenne, 113 U. S. 516; Ogden v. Armstrong, 168 U. S. 224; Wilson v. Lambert, 168.U. S. 611; Lyon v. Alley, 130 U. S. 177; Illinois Cent. R. R. Co. v. Adams, 180 U. S. 28; Northern Pacific R. R. Co. v. Walker, 148 U. S. 391; Lindsay v. Shreveport, Bank, 156 U. S. 485; Osborn v. United States Bank, 9 Wheat. 738; State Railroad Tax Cases, 92 U. S. 575; Cooley on Taxation, 2d ed., 780. The controversy presented under the Constitution of the United States is real. In such case the court has jurisdiction of the whole case, including the non-Federal questions arising under the constitution and statutes of the State which do not involve the Federal questions, the appeal being from the Circuit Court of the United States, and not from the Supreme Court of the State. 1 U. S. Comp. Laws, p. 508, §5, p. 549; Chappell v. United States, 160 U. S. 499; Press Publishing Co. v. Monroe, 164 U. S. 105; Scott v. Donald, 165 U. S. 58; Horner v. United States, 143 U. S. 570; Giles v. Harris, 189 U. S, 475; Missouri v. Dockery, 191 U. S. 165. The taxing method of Act 173 of the Michigan laws of 1901 is not "due process of law." It makes the "average-rate" depend directly upon, and grow with, the local taxes of all the counties, cities, villages, towns and school districts of Michigan, including those where the taxed railroad has no office and no property. The tax is not founded upon, and measured by, a judgment or estimate by the state legislature of the revenue needed for the state government. The tax is directly founded upon, and proportionate to, the expenses (partly governmental and partly proprietary) of local communities in which the taxpayer neither resides nor has property, and whose government and local enterprises, therefore, do not benefit the taxpayer. 201 U. S. Argument for Appellant. The tax is not founded upon what the legislature considers a just relation between the taxes of those persons who live or have property under the same governments, but upon what the legislature thinks a just division between persons living in different parts of the State, under different local governments, of the expenses of all those. governments. The amount of state tax imposed upon the railroad taxpayer is not fixed by the state legislature itself; but the power of fixing that amount is delegated to the local legislatures of the State's various political subdivisions-counties, cities, towns, villages and school districts-in many of which the taxpayer has no office or property. The taxpayer is deprived of the right to be heard concerning the amount of his tax. Such faults in the statute are forbidden by the Federal Constitution. Cooley on Taxation, 3d ed., 50, 83, and cases cited. Taxation is limited in its exercise by its own nature, characteristics and purposes. Matter of Washington St., 69 Pa. St. 352, 363; Cooley on Taxation, 3d ed., 183. As to the fundamental restrictions upon taxation, existing apart from the Fourteenth Amendment or other express constitutional provision see Loan Association v. Topeka, 20 Wall. 655, 662, 663, holding that taxes cannot be levied for a private purpose. When elements, fundamental in the very conception of a tax, are absent, the charge is not a tax at all, but a form of confiscation. Judson on Taxation, $$ 340, 341, 392; Tax Commissioners v. Holliday, 150 Indiana, 216; Lexington v. McQuillan's Heirs, 8 Dana (Ky.), 513, 517, 518; Woodbridge v. Detroit, 8 Michigan, 274, 301; State v. Township of Redington, 36 N. J. L. 66, 69. Due process of law requires the preservation of all features of taxation necessary to its fundamental justice, or to its consistency with the nature of free institutions. An exact and Argument for Appellant. 201 U.S. full definition of the phrase has never been made, or even attempted, by the courts, but descriptions of it have been given that disclose its larger significance. If not in conflict with any provision of the Constitution we must look to those settled usages and modes of proceeding existing in the common and statute law of England, before the emigration of our ancestors, and which are shown not to have been unsuited to their civil and political condition by having been acted on by them after the settlement of this country. Holden v. Hardy, 169 U. S. 366, 389; Hurtado v. California, 110 U. S. 516, 535, 546; Hagar v. Reclamation District, 111 U. S. 701, 707. See also Mr. Webster's argument in Dartmouth College Case, 4 Wheat. 518, 581; Cooley on Const. Lim., *355; Johnson, J., in 4 Wheat. 235, 244; Guthrie on Fourteenth Amendment, 66, 67 (and notes); Story on Const., 5th ed., § 1945; Judson on Taxation, §§ 318, 340, 343, 431. The course of history and long established usage are of large importance in ascertaining what is due process. Murray v. Hoboken Land Co., 18 How. 272, 276; Weimer v. Bunbury, 30 Michigan, 201, 213; Bell's Gap R. R. v. Pennsylvania, 134 U. S. 232, 237. "Due process of law" does not permit unlimited taxes, without restraint by consideration of the needs of government; or that the taxes of those who live under one government be measured by the expenses of other governments; or persons or property to be taxed for the relief of others from the expenses of governments under which the taxpayers neither reside nor have property; or the amount of a tax to be determined by any other legislature than that of the community to which the taxpayer belongs; or the amount of a tax to be fixed without the taxpayers being accorded the privilege of hearing. The taxing of property by a State for private use (even with compensation) is not due process of law. Mo. Pac. Ry. Co. v. Nebraska, 164 U. S. 403; Judson on Taxation, §§ 346, 350, 391. The taking of property even for public 201 U.S. Argument for Appellant. use without compensation is not due process. C., B. & Q. R. R. Co. v. Chicago, 166 U. S. 226, 241; Scott v. Toledo, 36 Fed. Rep. 385; Guthrie on Fourteenth Amendment, 93. The attempt by a government to tax property beyond its jurisdiction is not due process. Louisville Ferry Co. v. Kentucky, 188 U. S. 385; D., L. & W. R. R. Co. v. Pennsylvania, 198 U. S. 341; Wells v. City of Weston, 22 Missouri, 384. Due process requires that the taxpayer be given opportunity for hearing concerning the amount of his tax. Hagar v. Reclamation District, 111 U. S. 701, 710; Winona & St. Peter Land Co. v. Minnesota, 159 U. S. 526, 535; D., L. & W. R. R. Co. v. Pennsylvania, 198 U. S. 341. Undue interference with liberty of contract is not due process of law. Allgeyer v. Louisiana, 165 U. S. 578, 589. The legislature is bound to provide a method for the assessment and collection of taxes that shall not be inconsistent with natural justice. Turpin v. Lemon, 187 U. S. 51, 60. The Fourteenth Amendment controls the action of all branches of government, legislative, executive and judicial. Blake v. McClung, 172 U. S. 239, 260; Scott v. McNeill, 154 U. S. 34, 45; Yick Wo. v. Hopkins, 118 U. S. 356, 373; Ex parte Virginia, 100 U. S. 339, 346. Due process of law requires taxes to be laid by a representative legislature,-i. e., by one chosen by the community to which the person or property taxed belongs; which acts in the interest of that community; and which is responsible to the taxpayers. As said by Chief Justice Marshall: "The only security against the abuse of the power of taxation is found in the structure of government itself. In imposing a tax the legislature acts upon its constituents. This is in general a sufficient security against erroneous and oppressive taxation." McCulloch v. Maryland, 4 Wheat. 427. This language contemplates a representative legislature as fundamental in our plan of government. Providence Bank v. Billings, 4 Pet. 514, 563, See also Wilcox v. Paddock, 65 Argument for Appellant. 201 U. S. Michigan, 23, 28; People v. Hurlbut, 24 Michigan, 44; Board of Park Com'rs v. Detroit, 28 Michigan, 227, 244; Board of Com'rs v. Abbott, 34 Pac. Rep. (Kan.) 416; Schultes v. Eberly, 82 Alabama, 242, 246; Parks v. Board of Com'rs, 61 Fed. Rep. 436; Harward v. St. Clair Drainage Co., 51 Illinois, 130, 134; United States v. New Orleans, 98 U. S. 381, 392; Thompson v. Allen County, 115 U. S. 550, 555; Lexington v. McQuillan's Heirs, 8 Dana (Ky.), 513, 517. The provision for the equal protection of the laws is to be liberally construed to carry out its purposes. Strauder v. West Virginia, 100 U. S. 303; Boyd v. United States, 116 U. S. 616; Gulf &c. R. Co. v. Ellis, 165 U. S. 150. Equal protection of the laws means the protection of equal laws. The inquiry is not limited to the operation of a single law. The question is whether, under the different and several laws of the State, a protection of rights is afforded to a part of the persons within the State which is denied to others. Yick Wo v. Hopkins, 118 U. S. 356; Connolly v. Union Sewer Pipe Co., 184 U. S. 540. If the probable effect of the provisions of the statutes of the State is to produce the discrimination against persons which the equal protection of the Constitution forbids, taxation by which such discrimination is made is unlawful. San Francisco National Bank v. Dodge, 197 U. S. 70; Davenport Bank v. Davenport, 123 U. S. 83; People v. Weaver, 100 U. S. 539; Pelton v. National Bank, 101 U. S. 143; Cummings v. National Bank, 101 U. S. 153; Hills v. Exchange Bank, 105 U. S. 319. The method for the assessment and collection of taxes provided by the State shall not be inconsistent with natural justice. Turpin v. Lemon, 187 U. S. 51. In this manner other taxpayers of the State not subjected to taxation under said Act No. 173 are protected by the principle everywhere recognized as fundamental, viz.: the principle of self-taxation by the legislative action of representatives who are directly responsible to the taxpayers of the district in which the taxes are levied. This is especially the funda |