Dissenting Opinion: Harlan, J.

liable to be fined as prescribed in the statute, the validity of which is here in question. In other words, it is made an offence against the State of Mississippi if a railroad company engaged in interstate commerce shall presume to send one of its trains into or through that State without such arrangement of its cars as will secure separate accommodations for both

races.

In Hall v. De Cuir, 95 U. S. 485, 488, this court declared unconstitutional and void, as a regulation of interstate commerce, an act of the Louisiana legislature which required those engaged in interstate commerce to give all persons travelling in that State, upon the public conveyances employed in such business, equal rights and privileges in all parts of the conveyance, without distinction or discrimination on account of race or color. The court, speaking by Chief Justice Waite, said: "We think it may safely be said that state legislation which seeks to impose a direct burden upon interstate commerce, or to interfere directly with its freedom, coes encroach upon the exclusive power of Congress. The statute now under consideration, in our opinion, occupies that position. It does not act upon the business through the local instruments to be employed after coming within the State, but directly upon the business as it comes into the State from without, or goes out from within. While it purports only to control the carrier when engaged within the State, it must necessarily influence his conduct to some extent in the management of his business throughout his entire voyage. His disposition of passengers taken up and put down within the State, or taken up within to be carried without, cannot but affect in greater or less degree those taken up without and brought within, and sometimes those taken up and put down without. A passenger in the cabin set apart for the use of whites without the State must, when the boat comes within, share the accommodations of that cabin with such colored persons as may come on board afterwards, if the law is enforced. It was to meet just such a case that the commercial clause in the Constitution was adopted. The river Mississippi passes through or along the borders of ten different States, and its tributaries reach many

VOL. CXXXIII-38

more.

Dissenting Opinion: Harlan, J.

The commerce upon these waters is immense, and its regulation clearly a matter of national concern. If each State was at liberty to regulate the conduct of carriers while within its jurisdiction, the confusion likely to follow could not but be productive of great inconvenience and unnecessary hardship. Each State could provide for its own passengers and regulate the transportation of its own freight regardless of the interests of others. Nay, more, it could prescribe rules by which the carrier must be governed within the State in respect to passengers and property brought from without. On one side of the river or its tributaries he might be required to observe one set of rules, and on the other another. Commerce cannot flourish in the midst of such embarrassments. No carrier of passengers can conduct his business with satisfaction to himself, or comfort to those employing him, if on one side of a state line his passengers, both white and colored, must be permitted to occupy the same cabin, and on the other be kept separate. Uniformity in the regulations by which he is to be governed from one end to the other of his route is a necessity in his business, and to secure it Congress, which is untrammelled by state lines, has been invested with the exclusive legislative power of determining what such regulations.rnall be."

It seems to me that those observations are entirely pertinent to the case before us. In its application to passengers on vessels engaged in interstate commerce, the Louisiana enactment forbade the separation of the white and black races while such vessels were within the limits of that State. The Mississippi statute, in its application to passengers on railroad trains employed in interstate commerce, requires such separation of races, while those trains are within that State. I am unable to perceive how the former is a regulation of interstate commerce, and the other is not. It is difficult to understand how a state enactment, requiring the separation of the white and black races on interstate carriers of passengers, is a regulation of commerce among the States, while a similar enactment forbidding such separation is not a regulation of that character.

Without considering other grounds upon which, in my judg ment, the statute in question might properly be held to be

Citations for Plaintiff in Error.

repugnant to the Constitution of the United States, I dissent from the opinion and judgment in this case upon the ground that the statute of Mississippi is, within the decision in Hall v. De Cuir, a regulation of commerce among the States, and is, therefore, void.

I am authorized by MR. JUSTICE BRADLEY to say that, in his opinion, the statute of Mississippi is void as a regulation of interstate commerce.

ASPINWALL v. BUTLER.

ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF MASSACHUSETTS.

No. 957. Submitted January 7, 1890.- Decided March 3, 1890.

This case differs in no material fact from Delano v. Butler, 118 U. S. 634, and is governed by it.

When the previous proceedings looking to an increase in the capital stock of a national bank have been regular and all that are requisite, and a stockholder subscribes to his proportionate part of the increase and pays his subscription, the law does not attach to the subscription a condition that it is to be void if the whole increase authorized be not subscribed; although there may be cases in which equity would interfere to protect him in case of a material deficiency.

The provision in Rev. Stat. § 5142, that no increase of capital in a national bank shall be valid until the whole amount of the increase shall be paid in, and the Comptroller of the Currency notified and his consent obtained, was intended to secure the actual cash payment of the subscriptions made, and to prevent watering of stock; but not to invalidate bona fide subscriptions actually made and paid.

The Comptroller of the Currency has power by law to assent to an increase in the capital stock of a national bank less than that originally voted by the directors, but equal to the amount actually subscribed and paid for by the shareholders under that vote.

THE case is stated in the opinion.

Mr. Benjamin N. Johnson, for plaintiff in error, cited: Eaton v. Pacific Nat. Bank, 144 Mass. 260; Winters v. Armstrong, 37 Fed. Rep. 508; Chubb v. Upton, 95 U. S. 665;

Opinion of the Court.

Hamilton Plank Road Co. v. Rice, 7 Barb. 157; Nutter v. Lexington &c. Railroad Co., 6 Gray, 85; Salem Milldam Co. v. Ropes, 6 Pick. 23; Central Turnpike v. Valentine, 10 Pick. 142; Scovill v. Thayer, 105 U. S. 143; Sutherland v. Olcott, 95 N. Y. 93; Railway Co. v. Allerton, 18 Wall. 233; Gray v. Christian Society, 137 Mass. 329; People's Ins. Co. v. Westcott, 14 Gray, 440; Zabriskie v. Cleveland Railway Co., 23 How. 381; Atlantic Delaine Co. v. Mason, 5 R. I. 463.

Mr. A. A. Ranney, for defendant in error, cited: Cadle v. Baker, 20 Wall. 650; Davis v. Essex Baptist Society, 44 Connecticut, 582; Upton v. Tribilcock, 91 U. S. 47; Winters v. Armstrong, 37 Fed. Rep. 508, and cases cited; Brigham v. Mead, 10 Allen, 245; Buffalo &c. Railroad v. Dudley, 14 N. Y. 336; Seymour v. Sturgess, 26 N. Y. 134; Am. Tube Works v. Boston Machine Co., 139 Mass. 5; Reed v. Boston Machine Co., 141 Mass. 454; Wontner v. Shairp, 4 C. B. 404; Asphitel v. Sercombe, 5 Exch. 147; Johnson v. Goslett, 3 C. B. (N. S.) 569; Watts v. Salter, 10 C. B. 477; Garwood v. Ede, 1 Exch. 264; Scovill v. Thayer, 105 U. S. 143; Chubb v. Upton, 95 U. S. 665; Pullman v. Upton, 96 U. S. 928; Casey v. Galli, 94 U. S. 673; Keyser v. Hitz, 2 Mackey, 473; Kennedy v. Gibson, 8 Wall. 498; Curran v. Arkansas, 15 How. 304; Hawthorne v. Calef, 2 Wall. 10; Davis v. Weed, 44 Connecticut, 569, Shipman, J.; Railway Co. v. Allerton, 18 Wall. 233; Sawyer v. Hoag, 17 Wall. 610; Gray v. Portland Bank, 3 Mass. 364; Hart v. St. Charles Street Railway, 30 La. Ann. 758; Terry v. Eagle Lock Co., 47 Connecticut, 141; Clarke v. Thomas, 34 Ohio St. 46; Nutter v. Lexington &c. Railroad, 6 Gray, 85; Reed v. Memphis Gayoso Gas Co., 9 Heiskell, 545; Skowhegan & Athens Railroad v. Kinsman, 77 Maine, 370.

MR. JUSTICE BRADLEY delivered the opinion of the court.

This case is governed by that of Delano v. Butler, 118 U. S. 634. The cases are not identical, it is true; but the principles established in that case require a similar decision in this. The substantial facts, up to a certain point, are the same; what took place afterwards cannot vary the result.

Opinion of the Court.

The Pacific National Bank of Boston failed, and passed into the hands of a receiver on the 22d day of May, 1882, and the Comptroller of the Currency on the 27th of November, 1882, ordered an assessment of 100 per cent on the capital stock for the purpose of enforcing the individual liability of the stockholders, to pay the liabilities of the institution, under section 5151 of the Revised Statutes. Fifty shares of the stock, amounting to $5000, stood in the name of Aspinwall individually, and 50 other shares in his name as trustee and guardian. This suit was brought against him by the receiver of the bank to recover $5000 as the holder of the individual stock. He denied that he was the holder of any such stock; and, for another plea, averred that it had been fraudulently and illegally issued, and was not binding against him as a holder thereof. A trial by jury was waived, and the cause was tried by the Circuit Court, which made a special finding of facts, and decided in favor of the plaintiff. The writ of error is to that decision.

After the finding of facts had been made, the defendant prayed the court to rule "upon the facts found in this case the plaintiff is not entitled to judgment;" but the court refused this prayer, and found that the defendant was the owner of fifty shares of stock on May 20 and May 22, 1882, and entered judgment for the plaintiff for the sum of $6550; to which refusal to rule, ruling and entry of judgment the defendant then excepted; and this is the only exception in the caso. The question is, whether this general finding is supported by the special facts found, and is in accordance with the law.

Amongst other things, the findings set forth the 5th and 6th of the original articles of association of the bank. By the 5th article the capital stock is fixed at $250,000, but with the privilege of being increased, according to section 5142 of the Revised Statutes, to any sum not exceeding $1,000,000; and in case of increase, each stockholder was to have the privilege of subscribing his pro rata share. The 6th article specifies the powers and duties of the board of directors, amongst which was the power "to provide for an increase of the capital of the association, and to regulate the manner in which