Argument for Defendant in Error.

223 U.S.

Johnston Land Co., 3 N. Dak. 160; DeGraff v. Ramsey County, 46 Minnesota, 319.

The plaintiff could have enjoined any effort to enforce the collection of the tax. Ludwig v. West Un. Tel. Co., 216 U. S. 146.

The plaintiff should have waited until an action was brought either to collect the tax or to suspend its right to do business, and should then in such action have raised the questions which it is attempted to raise in this suit as the basis of a right to recover, or should have proceeded by injunction. The fact that it paid under protest does not make the payment involuntary. Railroad Co. v. Commissioners, 98 U. S. 541, 544; Swift & Company v. United States, 111 U. S. 22.

The cases cited by plaintiff in error do not sustain its contention.

The plaintiff is not entitled to this remedy against this defendant. Elliott v. Swartout, 10 Peters, 137; Davis v. Bader, 54 Missouri, 168, 169; Fish v. Higbee, 22 R. I. 223, 224, 225; King v. United States, 99 U. S. 229.

If the defendant holds the money in wrong of the State, it is still the money of the State, and an action on behalf of the plaintiff will not lie to recover it of him. Long v. Frue, 104 U. S. 223; Waters v. State, 1 Gill, 302, 308.

Payment of a demand which can only be enforced by the decision of a court of justice is voluntary. Maxwell v. San Luis Obispo, 71 California, 466; Southern Ry. Co. v. Mayor, 141 Alabama, 493; Betts v. Village, 93 Michigan, 77; Brewing Co. v. State, 19 S. Dak. 302.

The plaintiff was protected by right to an injunction. West. Un. Tel. Co. v. Andrews, 216 U. S. 165.

The forfeiture of right to do business was not selfexecuting. Matter of N. Y. & L. I. Bridge Co., 148 N. Y. 540, 547; Frost v. Frostburg Coal Co., 24 Howard, 278, 283; Galveston &c. Ry. Co. v. The State, 81 Texas, 572, 595; Briggs v. Canal Co., 137 Massachusetts, 71.

223 U.S.

Opinion of the Court.

MR. JUSTICE HOLMES delivered the opinion of the court.

This is an action to recover taxes paid under duress and protest, the plaintiff contending that the law under which the tax was levied is unconstitutional. A demurrer to the declaration was sustained by the Circuit Court. The tax is a tax of two cents upon each one thousand dollars of the plaintiff's capital stock. Session Laws of Colorado, 1907, c. 211 (April 1, 1907). The plaintiff is a Kansas corporation. The greater part of its property and business is outside of the State of Colorado, and of the business done within that State but a small proportion is local, the greater part being commerce among the States. Therefore it is obvious that the tax is of the kind decided by this court to be unconstitutional, since the decision below in the present case, even if the temporary forfeiture of the right to do business declared by the statute be confined by construction, as it seems to have been below, to business wholly within the State. Western Union Telegraph Co. v. Kansas, 216 U. S. 1. Pullman Co. v. Kansas, 216 U. S. 56. Ludwig v. Western Union Telegraph Co., 216 U. S. 146. The defendant did not argue that the tax could be maintained, but contended only that the payment was voluntary and that the defendant is not the proper person to be sued.

It is reasonable that a man who denies the legality of a tax should have a clear and certain remedy. The rule being established that apart from special circumstances he cannot interfere by injunction with the State's collection of its revenues, an action at law to recover back what he has paid is the alternative left. Of course we are speaking of those cases where the State is not put to an action if the citizen refuses to pay. In these latter he can interpose his objections by way of defence, but when, as is common, the State has a more summary remedy, such as

distress, and the party indicates by protest that he is yielding to what he cannot prevent, courts sometimes perhaps have been a little too slow to recognize the implied duress under which payment is made. But even if the State is driven to an action, if at the same time the citizen is put at a serious disadvantage in the assertion of his legal, in this case of his constitutional, rights, by defence in the suit, justice may require that he should be at liberty to avoid those disadvantages by paying promptly and bringing suit on his side. He is entitled to assert his supposed right on reasonably equal terms. See Ex parte Young, 209 U. S. 123, 146. If he should seek an injunction on the principle of that case and of Western Union Telegraph Co. v. Andrews, 216 U. S. 165, he would run the same risk as if he waited to be sued.

In this case the law, beside giving an action of debt to the State, provides that every corporation that fails to pay the tax shall forfeit its right to do business within the State until the tax is paid, and also shall pay a penalty of ten per cent. for every six months or fractional part of six months of default after May 1 of each year. It may be that the forfeiture of the right to do business would not be authoritatively established except by a quo warranto provided for in a following section, but before or without the proceeding the effect of the forfeiture clause upon the plaintiff's subsequent contracts and business might be serious, (see Ludwig v. Western Union Telegraph Co., 216 U. S. 146), and in any event the penalty would go on accruing during all the time that might be spent before the validity of the defence could be adjudged. As appears from the decision below, the plaintiff could have had no certainty of ultimate success, and we are of opinion that it was not called upon to take the risk of having its contracts disputed and its business injured and of finding the tax more or less nearly doubled in case it finally had to pay. In other words, we are of opinion that the pay

ment was made under duress. See Gaar, Scott & Co. v. Shannon, decided this day, post, p. 468.

The other question is whether the defendant is liable to the suit. The defendant collected the money and it is alleged that he still has it. He was notified when he received it that the plaintiff disputed his right. If he had no right, as he had not, to collect the money, his doing so in the name of the State cannot protect him. Erskine v. Van Arsdale, 15 Wall. 75. See Virginia Coupon Cases, 114 U. S. 270. It is said that the money as soon as collected belonged to the State. Very likely it would have but for the plaintiff's claim, assuming it to remain an identified trust fund; but the plaintiff's claim was paramount to that of the State, and even if the collector of the tax were authorized to appropriate the specific money and to make himself debtor for the amount, it would be inconceivable that the State should attempt to hold him after he had been required to repay the sum. Moreover it would seem that the statute contemplated the course taken by the plaintiff and provided against any difficulty in which the Secretary of State otherwise might find himself in case of a disputed tax. For it provides by § 6 that 'if it shall be determined in any action at law or in equity that any corporation has erroneously paid said tax to the Secretary of State,' upon the filing of a certified copy of the judgment the auditor may draw a warrant for the refunding of the tax and the state treasurer may pay it. We must presume that a judgment in the present action would satisfy the law.

Judgment reversed.

Argument for Plaintiff in Error.

223 U. S.

COLLINS v. THE STATE OF TEXAS.

ERROR TO THE COURT OF CRIMINAL APPEALS OF THE STATE OF TEXAS.

No. 165. Argued January 25, 26, 1912.-Decided February 19, 1912.

Where the party attacking the constitutionality of a statute has not suffered, the court will not speculate whether others may suffer. Under its police power a State may constitutionally prescribe conditions to insure competence in those practising the healing art in its various branches, including those in which drugs are not administered-such as osteopathy. Dent v. West Virginia, 129 U. S. 114. The Texas statute of 1907, establishing a Board of Medical Examiners, and conditions under which persons will be licensed to practise osteopathy, does not deprive one who refuses to apply for a license thereunder of his property without due process of law, or deny him the equal protection of the law.

In this case the writ of error to review a judgment denying plaintiff in error his release on habeas corpus is not dismissed but determined on the merits, as the single constitutional question goes to the jurisdiction of the state court, and has arisen as plainly as it ever will. Bailey v. Alabama, 211 U. S. 452, distinguished.

THE facts, which involve the constitutionality of certain provisions of the statute of Texas establishing the Board of Medical Examiners, are stated in the opinion.

Mr. Millard Patterson, with whom Mr. Jo. F. Woodson, was on the brief, for plaintiff in error:

The statute deprives plaintiff in error of his property without due process of law, and denies him the equal protection of the law.

The last two clauses of the Fourteenth Amendment are restrictions upon the exercise of arbitrary and capricious power over persons and property when exercised by the State through any of its agencies. Ex parte Vir