Opinion of the Court.

270 U.S.

It is immaterial whether the general federal jurisdiction in the present suit is founded upon diversity of citizenship alone, or whether the suit is also one arising under the laws of the United States, since neither the Milling Company nor the Railway Company is a resident of the Eastern District of Missouri; a corporation being, within the meaning of the jurisdictional statutes, a resident of the State in which it is incorporated, and not a resident or inhabitant of any other State, although it may be engaged in business within such other State. Re Keasbey & Mattison Co., 160 U. S. 221, 229; Macon Grocery Co. v. Atlantic Coast Line, supra, 509; and cases cited.

The Milling Company contends, however, that since it might have brought the suit originally in a state court of concurrent jurisdiction within the Eastern District of Missouri, in which the Railway Company is transacting business, and the Railway Company, under the decisions in General Investment Co. v. Lake Shore Railway, 260 U. S. 261, and Lee v. Chesapeake Railway, supra, might: then have removed it to the District Court, this necessarily involves the conclusion that the District Court also has "original jurisdiction" of the suit, since § 28 of the Judicial Code provides only for the removal of suits of which the District Courts "are given original jurisdiction." The fallacy of this argument lies in the failure to distinguish between the general jurisdiction of the District Courts, to which § 28 relates, and the local jurisdiction over the person of the defendant, to which § 51 relates. The same contention was made, in a converse form, in the General Investment Company Case, in which it was argued that a suit could not be removed from a state court to a district court in which, under § 51, it could not have been brought over the defendant's objection, since it was not a suit of which the District Court was given "original jurisdiction;" and it is completely answered by the holding in that case, at p. 275, that the term

363

Opinion of the Court.

original jurisdiction" as used in § 28 refers only to the general jurisdiction conferred on the District Courts, and does not relate to the venue provision in § 51; there being "no purpose in extending to removals the personal privilege accorded to defendants by § 51, since removals are had only at the instance of defendants." This was approved and followed in Lee v. Chesapeake Railway, supra, 657.

Whether the suit be originally brought in the District Court or removed from a state court, the general federal jurisdiction is the same; and the venue or local jurisdiction of the District Court over the person of the defendant is dependent in the one case as in the other upon the voluntary action of the non-resident defendant, being acquired in an original suit by his waiver of objection to the venue, and in a removed suit by his application for the removal to the District Court.

Since the question does not require further argument, the motion of the Railway Company is granted, and the judgment of the District Court is

Affirmed.

GENERAL AMERICAN TANK CAR CORPORATION ET AL. v. DAY, SHERIFF AND EX-OFFICIO TAX COLLECTOR.

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF LOUISIANA

No. 162. Argued January 21, 1926.-Decided March 1, 1926.

1. A decision by the highest state court holding a state tax conformable to the requirement of the constitution of the State as regards uniformity of taxation, is binding on this Court. P. 371.

2. A state tax imposed, in lieu of local taxes, on rolling stock which is owned by non-resident corporations having no domicile in the State and is operated over railroads within the State (Act 109, La. Ls. 1921), is not objectionable, under the Com

Argument for Appellants.

270 U.S.

merce Clause, as an attempt to compel non-residents doing interstate business in the State to declare a local domicile, if the amount and method of computing the tax are not in question, and if it does not operate to discriminate in some substantial way between property of such non-residents and that of residents or domiciled non-residents. P. 372.

3. The method of allocating taxes between the State and its political subdivisions, is a matter within the competency of the state legislature. P. 372.

4. Where a state taxing statute, which imposes a property tax on non-residents in lieu of local taxes imposed on residents, discloses no purpose to discriminate against non-residents, and in substance does not do so, it is not invalid under the Equal Protection Clause merely because equality in its operation, as compared with local taxation, has not been attained with mathematical exactness. P. 373.

5. Parties challenging a state tax on non-residents, upon the ground that it discriminates against them by exceeding the average taxes imposed on residents from which non-residents are exempt, have the burden of proving such excess. P. 374. Affirmed.

APPEAL from a decree of the District Court dismissing the bill in a suit brought by several corporations, not domiciled in Louisiana, to enjoin the appellee, a tax-collector for one of the Louisiana parishes, from seizing their property in satisfaction of a tax assessed on their rolling stock, operated over railroads within the State.

Mr. Sigmund W. David, with whom Messrs. Elias Mayer and Edwin T. Merrick were on the brief, for appellants.

A State has no right to require a non-resident to procure a license or declare a domicile for the privilege of engaging in interstate commerce; and a state tax, which in effect does that, violates the Commerce Clause of the Constitution. Alpha Portland Cement Co. v. Massachusetts, 268 U. S. 203; Int. Text Book Co. v. Pigg, 217 U. S. 91; Buck Stove & Range Co. v. Vickers, 226 U. S. 205; Sioux Remedy Co. v. Cope, 235 U. S. 197; Crutcher

367

Argument for Appellants.

v. Kentucky, 141 U. S. 47; Horn Mining Co. v. New York, 143 U. S. 305; Dahnke-Walker Co. v. Bondurant, 257 U. S. 282; Barrett v. New York, 232 U. S. 14; Looney v. Crane Co., 245 U. S. 178; Crenshaw v. Arkansas, 227 U. S. 389; McCall v. California, 136 U. S. 104; Pensacola Tel. Co. v. Western Union Tel. Co., 96 U. S. 1. A tax which is intended to and does affect the rolling stock of only those engaged in interstate commerce who have failed or refused to declare a domicile in the State is not a property tax within the rule laid down by the decisions of this Court. Looney v. Crane Co., supra; Western Union Tel. Co. v. Kansas ex rel. Coleman, 216 U. S. 1; Pullman Co. v. Kansas, 216 U. S. 56; Int. Paper Co. v. Massachusetts, 246 U. S. 135. Assuming, however, that this is a property tax and not a special license tax, still it burdens interstate commerce by discriminating against the property of the plaintiffs because they are non-resident corporations not domiciled within the State. Darnell & Son Co. v. Memphis, 208 U. S. 113; Brimmer v. Rebman, 138 U. S. 78; Walling v. Michigan, 116 U. S. 446; Guy v. Baltimore, 100 U. S. 434; Welton v. Missouri, 91 U. S. 275; Ward v. Maryland, 12 Wall. 418; Cook v. Pennsylvania, 97 U. S. 566; Lyng v. Michigan, 135 U. S. 161.

The tax also violates § 1 of the 14th Amendment. Southern Ry. Co. v. Greene, 216 U. S. 400; Bethlehem Motors Corp. v. Flynt, 256 U. S. 421; Ward v. Maryland, supra; Chalker v. Birmingham & N. W. Ry., 249 U. S. 522; Travis v. Yale & Towne Mfg. Co., 252 U. S. 60; Leecraft v. Texas Co., 281 Fed. 918. The contention that residents and non-residents who have declared a local domicile must pay local taxes in addition to the 54 mill state tax, and that the local taxes average approximately 25 mills, is unsound. The purpose of the 25 mill tax was not to equalize the burdens. Even if the average of all local taxes is approximately 25 mills, and the pur

100569°-26-24

pose of the tax is to equalize the burdens, the special tax is void because, in principle, the discrimination still exists.

Sections 5, 6, and 7 of Act 109, and the 25-mill tax, violate § 1, Art. 10 of the Louisiana Constitution, 1921, providing: "All taxes shall be uniform throughout the territorial limits of the authority levying the tax."

Mr. Harry P. Sneed for appellee.

MR. JUSTICE STONE delivered the opinion of the Court.

Appellants brought suit in the United States District Court for eastern Louisiana to enjoin the appellee from collecting, by seizure of appellants' property, a tax assessed against them by the State of Louisiana. From a judgment dismissing the bill the case comes here on direct appeal by reason of the constitutional questions involved. Jud. Code § 238, before amendment of 1925; Hays v. Port of Seattle, 251 U. S. 233; Arkadelphia Milling Co. v. St. Louis & S. W. Ry. Co., 249 U. S. 134.

The tax in question was imposed under § 5 of Act 109 of the Louisiana Laws of 1921. Section 1 of that Act imposes a tax, for state purposes, of five and one-fourth mills on the dollar on all property within the State. Section 5 authorizes the assessment of an additional tax for state purposes of twenty-five mills on the dollar "of the assessed value of all rolling stock of non-resident corporations, having no domicile in the State of Louisiana, operated over any railroad in the State of Louisiana within or during any year for which such tax is levied Article X, § 16 of the Louisiana constitution exempts from all local taxation non-residents paying the twenty-five mill tax. Appellants do not complain of the five and one-fourth mill tax assessed against them under § 1; nor do they question the amount or method of computation of the twenty-five mill tax assessed under § 5;