Paulsen v. Portland, 149 U. S. 39, 40; Judson on Taxation,

§ 377.

Complainant has not averred or shown any injury from the application of this method. As a prerequisite to injunction to restrain the collection of taxes, it must make clear that it ought not, in equity, to pay taxes from which it asks relief. Mercantile National Bank v. Hubbard, 98 Fed. Rep. 465, 469; Musselman v. Logansport, 29 Indiana, 533; Cowell v. Doub, 12 California, 273; Anderson v. City of Mayfield, 93 Kentucky, 230, 237; Streight v. Durham, 10 Oklahoma, 361, 373; Dundy v. Richardson Co. Comrs., 8 Nebraska, 508, 519; South Platte Land Co. v. Crete, 11 Nebraska, 344, 347; Jones v. Summer, 27 Indiana, 511; Porter v. R. R. I. & St. L. R. Co., 76 Illinois, 596; Conway v. Younkin, 28 Iowa, 295; Warden v. Supervisors, 14 Wisconsin, 618; Miltimore v. Supervisors, 15 Wisconsin, 10; Cooley on Taxation, 3d ed., 1443.

Interstate commerce is not interfered with. While the States have no authority to interfere with transportation between the States, to impose any restraint upon the right, privilege, occupation or business of engaging therein or to burden the receipts therefrom, the rule is now placed beyond question, that they have full authority to tax property used in, and instrumentalities of, interstate commerce, regardless of such use, or that the large portion of the value upon which tax is laid originates in such interstate use.

This right has been sustained as to railroads: Pittsburgh, C. C. & St. L. Ry. Co. v. Backus, 154 U. S. 421; Cleveland, C. C. & St. L. Ry. Co. v. Backus, 154 U. S. 439; Delaware Railroad Tax, 18 Wall. 206, 231, 232. Cars: Union Transit Co. v. Lynch, 177 U. S. 149; American Transit Co. v. Hall, 174 U. S. 70; S. C., 24 Colorado, 300; Pullman Co. v. Pennsylvania, 141 U. S. 19; Marye v. B. & O. R. R. Co., 127 U. S. 117. Bridges: Bridge Co. v. Henderson City, 173 U. S. 592, 623; Pittsburgh &c. Ry. Co. v. Board of Public Works, 172 U. S. 32; Henderson Bridge Company v. Henderson City, 141 U. S. 689. Express companies' property: Adams Express Co. v. Ohio, 165

Argument for Appellee.

201 U. S.

U. S. 194; Adams Express Co. v. Ohio, 166 U. S. 185; Adams Express Co. v. Kentucky, 166 U. S. 171, 180; Fargo v. Hart, 193 U. S. 490. Telegraph lines and property: Western Union Tel. Co. v. Missouri, 190 U. S. 412; Atlantic & Pacific Tel. Co. v. Philadelphia, 190 U. S. 160, 163; West. Un. Tel. Co. v. Taggart, 163 U. S. 1; Postal Tel. & Cable Co. v. Adams, 155 U. S. 688, 697; West. Un. Tel. Co. v. Massachusetts, 125 U. S. 590; West. Un. Tel. Co. v. Massachusetts, 141 U. S. 40. Steamships: Transportation Company v. Wheeling, 99 U. S. 273; Moran v. New Orleans, 112 U. S. 69.

The rule extends so far as to permit the States, where taxing property engaged in, and instrumentalities of, interstate commerce, to include the intangible value resulting from interstate commerce. Cases supra and Central Pacific R. R. Co. v. California, 162 U. S. 91; New York, L. E. & W. R. R. Co. v. Pennsylvania, 158 U. S. 431, 437; Railway Co. v. Backus, 154 U. S. 446, 447.

The attitude of this court has been to sustain, if possible, statutes apparently imposing a burden on interstate transportation, or receipts therefrom. Where it has been possible to say that the tax, while not directly imposed on, was on account of, property, the corporation owned and which received protection of the laws, within the State, the court has done so and has sustained taxes where the amount was determined by reference to receipts, capital stock, or other elements. Cases supra and New York, L. E. & W. R. R. Co. v. Pennsylvania, 158 U. S. 431, 438, 439; Maine v. Grand Trunk Ry. Co., 142 U. S. 217. See also Fairbank v. United States, 181 U. S. 297; State Tax on Railway Gross Receipts, 15 Wall. 284.

The mileage basis of apportionment prescribed in the statute is proper. A railroad system may, for purposes of taxation, be treated and valued as a unit, the whole contributing to the value of every part; and where it extends into several States, the value may be apportioned among the several States, on a mileage basis. Statutes using this basis of apportionment

are in force in many States. Adams Express Co. v. Kentucky, 166 U. S. 171, 180.

To the use of a strict mileage basis there are only two exceptions; it cannot be applied: First, so as to bring within the taxing State, property not connected with or a part of the railroad business and which has an actual situs in some other State, nor, second, where, by reason of the existence of valuable terminals in one State, which contribute to and greatly enhance the value of the system, its application would be unfair, as bringing within the taxing State a greater proportion of the value than that State would equitably be entitled to. Cases supra.

The statute does not require apportionment among the States on an absolute mileage basis, but permits apportionment, in accordance with the fact, on the judgment of the board of assessors.

Tact permits the board of assessors to exercise their discretion in making the apportionment; that discretion, when once exercised, is absolute and cannot be overcome except in cases of fraud. Cases supra and Maish v. Arizona, 164 U. S. 611; McLeod v. Receiver, 71 Fed. Rep. 458.

The system of taxation, invoked by Act 173, as applied to railroad corporations, is a proper exercise of the right to amend corporate charters. The act became a part of the charters and governing laws of Michigan railroad corporations. New York & New Eng. R. R. Co.'s Appeal, 62 Connecticut, 527, 538; Columbia &c. R. R. Co. v. Gibbes, 24 S. Car. 60, 73; Alabama & V. Ry. Co. v. Odeneal, 73 Mississippi, 34; St. L., I. M. & S. Ry. Co. v. Paul, 64 Arkansas, 83; S. C., 173 U. S. 404; Northern Central Ry. Co. v. Maryland, 187 U. S. 258; State v. Northern Central Ry. Co., 90 Maryland, 447, 469; Bangor, Oldtown & Milford R. Co. v. Smith, 47 Maine, 34; Durand v. N. H. & N. Co., 42 Connecticut, 211, 223; Roxbury v. Boston &c. R. R. Co., 60 Massachusetts, 432; St. Albans v. Car Co., 57 Vermont, 82; Tomlinson v. Jessup, 15 Wall. 454, 457; Leep v. Railway Co., 58 Arkansas, 407; Stearns v. Minnesota, 179 VOL. COI—19

U. S. 260 (dissenting opinion); Penna. R. R. Co. v. Duncan, 111 Pa. St. 352. The general railroad law and Act 173 are pari materia, to be read and construed as one enactment. Chicago, R. I. & P. Ry. Co. v. Zernecke, 59 Nebraska, 689, 696; McHenry v. Brett, 9 N. Dak. 68, 70; Dennison v. Allen, 106 Michigan, 295; Shannon v. People, 5 Michigan, 36, 50; Ryan v. Carter, 93 U. S. 78, 84; Alexander v. Mayor, 5 Cranch, 7; Hendrix v. Rieman, 6 Nebraska, 517, 522; Black on Interpretation of Laws, p. 204, § 86.

The Federal cases uphold the right of the State to repeal, alter or amend corporate charters where the right to do so is reserved. Vested rights cannot be impaired under such a reserved power, but the power may be exercised and to almost any extent, to carry into effect the original purpose of the grant, to protect the rights of the public and the corporators, or to promote due administration of the affairs of the corporation. Union Passenger Ry. Co. v. Philadelphia, 101 U. S. 528; Hoge v. Railway Co., 99 U. S. 348, 351; Greenwood v. Freight Co., 105 U. S. 13; Railroad Co. v. Maine, 96 U. S. 499; Louisville Water Co. v. Clark, 143 U. S. 10, and cases cited; Sinking Fund Cases, 99 U. S. 700; Pearsall v. Great Northern Ry., 161 U. S. 663; Covington v. Kentucky, 173 U. S. 232; Citizens' Savings Bank v. Owensboro, 173 U. S. 636; Tomlinson v. Jessup, 15 Wall. 454; United States v. Union Pacific Ry., 160 U. S. 37. See also Miller v. State, 15 Wall. 478, 499; Holyoke Co. v. Lyman, 15 Wall. 500; Pennsylvania College Cases, 13 Wall. 190; Spring Valley Water Works v. Schottler, 110 U. S. 347; Bienville Water Supply Co. v. Mobile, 186 U. S. 222; St. L., I. M. & S. Ry. Co. v. Paul, 173 U. S. 404; New Jersey v. Yard, 95 U. S. 104; Gas Light Co. v. Hamilton City, 146 U. S. 271.

MR. JUSTICE BREWER, after making the foregoing statement, delivered the opinion of the court.

The unconstitutionality of a statute may depend upon its conflict with the constitution of the State or with that of the

United States. If conflict with the state constitution is the sole ground of attack, the Supreme Court of the State is the final authority, Merchants' Bank v. Pennsylvania, 167 U. S. 461, and cases cited in the opinion, while in the other case the ultimate decision rests with this court. The validity of this act has not been directly presented to or determined by the state court, but the first attack by the parties interested is made in the Federal court and by this suit, and conflict with both constitutions is alleged. Undoubtedly a Federal court has the jurisdiction, and when the question is properly presented it may often become its duty to pass upon an alleged conflict between a statute and the state constitution, even before the question has been considered by the state tribunals. All objections to the validity of the act, whether springing out of the state or of the Federal Constitution, may be presented in a single suit and call for consideration and determination. At the same time the Federal courts will be reluctant to adjudge a state statute to be in conflict with the state constitution before that question has been considered by the state tribunals. Especially is this true when the statute is one affecting the revenues of the State, and therefore of general public interest. Coulter v. Louisville & Nashville R. R. Co., 196 U. S. 599, 609. And this reluctance becomes more imperative when the statute has been before the highest court of the State and a decision rendered upon the assumption that it is valid, and this, although the direct question of validity was not presented nor determined.

In the case at bar the rate of taxation imposed upon the railroad and other corporate property is the average rate of taxation upon other property subject to ad valorem taxes, and that average rate is ascertained by dividing the total tax levy on all such property by the value of the property. In Board of Education v. State Assessors, 133 Michigan, 116, the following case arising under the statute was presented (p. 117):

"This is an application for a mandamus. It sets out, in substance, that the state board of assessors, in levying the tax upon the railroad property of this State, has assumed to fix the rate