(dissenting.)- — I agree with my brethren upon the proposition that all doubts should be resolved in favor of the validity of the act assailed, when the assailant has the right of appeal to the Supreme Court of the United States, and that the state’s right to do so is questionable. I do not think, however, that the infirmity of the act in question is open to serious doubt; and, notwithstanding the high regard I have for the opinion of my Associates, the infirmity of the act is to me so glaring that I deem it my imperative duty to construe the law as I understand it, regardless of consequences, or whether the state has, or has not, the right of appeal.
Pretermitting the other questions insisted upon by appellants against the validity of the act in question,-1 am of the opinion that it is violative of the fourteenth amendment of the federal Constitution, in that the classification attempted is so unreasonable and 'unjust as to amount to a discrimination .against one and in favor of other members of the same class. The classification has no reference to- the subject or business, but is based solely on thé residence of the corporation. There can be no doubt that the states have the right to require certain things of foreign corporations as a condition precedent to doing business therein; but when they enter the state upon its invitation, and after complying with its requirements, they are entitled to the equal protection of the law, which includes a guaranteed uniformity in taxation. To my mind equal protection is not accorded when one railroad is taxed thousands of dollars more than others of equal value and similarly situated, the only distinction being that one is a foreign and the other a domestic corporation, notwithstanding the tax may be designated as a franchise tax in order to avoid the influence of the state Constitution against unequal taxa*419tion on property. That the state may levy a reasonable franchise tax on corporations there can be no- doubt ; bnt it has no right to levy such a tax on one and relieve another engaged in the same identical business, simply because one is foreign and the other is domestic. The right of the state to prescribe conditions upon ■which, a foreign corporation should enter refers to- the tax imposed for the privilege of acting in a corporate capacity in the state. “It does not mean that, after the corporation has been admitted into the state and paid the charge exacted for admission, it is not entitled to clue process of law or the equal benefit of the laws, under the federal Constitution, or equality and uniformity under the state government. The situation is therefore analogous to that of a domestic corporation. The state-may impose such exaction as it pleases as a condition for granting the corporate franchise; but, when the corporation is organized, its property is to be taxed as other-property, subject to such classification and qualification as may 1'awfülly be made.” — Judson on Taxation, § 168. It may be that the state has the right to prevent the doing of intrastate business by a nonsubmitting corporation, and which is the penalty prescribed by the statute;, but it must be borne in mind that we are dealing with the state’s right to collect and retain this illegal tax, and not with, its right or recourse against plaintiff for resisting the right to collect and retain said tax.
The question before us is: Was the tax lawfully levied? If it was, the plaintiff'cannot recover; if not legal, it can recover it back. What the state can and will do-for a refusal to submit we are not called upon to decide. “Sufficient unto the day is the evil thereof,” as we are dealing with the right to levy and collect, -and not the penalty for a refusal to submit. Should' the state attempt to deprive many of her citizens dependent solely *420•upon foreign corporations for a means of travel and transportation, because said corporations do not submit to an unjust discrimination, will, of course, work a hardship upon many of her inhabitants and deprive them of the advantages and conveniences of the present age of progress and enterprise, and which cannot be taken from their more fortunate neighbors situated on domestic lines, and would create a condition to be deplored. But this threatened and impracticable disaster should not deter courts from condemning all laws of an unjust and ■discriminatory character, such as the one in question.
I regret my inability to concur in the conclusion of my Brothers, and am constrained to voice my protest .against this statute, as it involves not only a year’s taxation, but a principle so far-reaching and important as to not only affect the integrity of the state, but threatens the sacred rights secured by our federal Constitution. Citation of authority is not required to demonstrate the inequality of this law and that the classification therein attempted is unreasonable and unjust. Nor ■do I feel it necessary to comment on many of those mentioned in the opinion, but will content myself with a short discussion of what seems to be the three leading ■cases relied upon as supporting the conclusion of the majority.
The case of Ducat v. Chicago, 10 Wall. 410, 19 L. Ed. 972, does not apply to the present question. There the fourteenth amendment was not considered, and, while the case may have been decided subsequent to the adoption of same, the statute considered was enacted prior to the amendment, and the alleged violation of same was anterior to said amendment.
The case of New York v. Roberts, 171 U. S. 658, 19 Sup. Ct. 58, 43 L. Ed, 323, and Horn Silver Mining Co. v. New York, 143 U. S. 305, 12 Sup. Ct. 403, 36 L. Ed. *421164, do not support the law in question. The statutes there considered dealt with foreign and domestic corporations in the same manner. Indeed, the opinion in each case is guarded on this point, and stresses the fact that there ivas no discrimination against foreign corporations, simply because they were foreign, instead of domestic. In the Horn Silver Mining Co. Case, supra the court, speaking through Justice Field, says, “It does not lie in any foreign corporation to complain that it is subjected to the same law with the domestic corporation.” And in the Roberts Case, supra, we find the following guarded expression: “It will be perceived that the tax is prescribed as well for New York corporations: as for those of other states. It is true that manufacturing corporations wholly engaged in carrying on manufacturing or mining ores within the state of New York are exempted from the tax; but such exemption is not restricted to New York corporations, but includes corporations of other states as well, when wholly engaged in manufacturing within the state.” It is therefore infer-able that the statute would have been condemned, had it discriminated against foreign corporations of the same class as the domestic ones, and which is done by the law in question.
I dissent from the conclusion of the majority, and think this tax was illegal, and the plaintiff should recover it back.
(Since this case was reported the Supreme Court of the United States has reversed it, holding the act violative of the 14th Amendment of the Federal Constitution. — Reporter.)