Opinion of the Court.

by Chief Justice Fuller, the court said: "Before the act of 1875, c. 137, 18 Stat. 470, we held that an order by the Circuit Court remanding a cause was not such a final judgment or decree in a civil action as to give us jurisdiction for its review by writ of error or appeal. The appropriate remedy in such a case was then, by mandamus, to compel the Circuit Court to hear and decide;" citing authorities. "The act of 1875 made such order reviewable (without regard to the pecuniary value of the matter in dispute); but by the act of March 3, 1887, 24 Stat. 552, 555, c. 373, as corrected by the act of August 13, 1888, 25 Stat. 333, c. 866, the provision to that effect was repealed; and it was also provided that no appeal or writ of error should be allowed from the decision of the Circuit Court remanding a cause." And again: "The words 'a final judgment or decree,' in this act, are manifestly used in the same sense as in the prior statutes which have received interpretations, and these orders to remand were not final judgments or decrees, whatever the ground upon which the Circuit Court proceeded;" citing Graves v. Corbin, 132 U. S. 571.

It is contended by counsel for plaintiff in error that this appeal lies under §§ 4 and 5 of the act of Congress approved March 3, 1891. 26 Stat. 826, c. 517. The fourth section and that part of the fifth relied on read as follows:

"SEC. 4. That no appeal, whether by writ of error or otherwise, shall hereafter be taken or allowed from any District Court to the existing Circuit Courts, and no appellate jurisdiction shall hereafter be exercised or allowed by said existing Circuit Courts, but all appeals by writ of error otherwise [sic], from said District Courts shall only be subject to review in the Supreme Court of the United States or in the Circuit Court of Appeals hereby established, as is hereinafter provided, and the review, by appeal, by writ of error, or otherwise, from the existing Circuit Courts shall be had only in the Supreme Court of the United States or in the Circuit Courts of Appeals hereby established, according to the provisions of this act regulating the same.

"SEC. 5. That appeals or writs of error may be taken from

Statement of the Case.

the District Courts or from the existing Circuit Courts direct to the Supreme Court in the following cases:

"In any case in which the jurisdiction of the court is in issue."

It is urged that when the copy of the record in the suit in the state court was entered in the Circuit Court a case was pending therein, and when the objections to the jurisdiction were presented, the jurisdiction of the court was put in issue. This provision of the act of 1891 has been passed upon by this court in the case of McLish v. Roff, just decided, ante, 661. In that case the motion to dismiss the writ of error was granted, upon the ground that the provision authorizing appeals or writs of error to be taken direct to this court, "in any case in which the jurisdiction of the court is in issue," does not make an appeal or writ of error allowable before the cause has proceeded to final judgment. It is, therefore, our opinion that the revisory power of this court cannot be invoked on this record although, by the motion to remand, the jurisdiction of the Circuit Court was put in issue.

The writ of error is

Dismissed.

SINGER MANUFACTURING COMPANY v. WRIGHT.

APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF GEORGIA.

No. 13. Argued April 14, 1891. - Decided December 7, 1891.

The payment, whether voluntary or compulsory, of a tax, to prevent the payment of which a bill in equity has been filed, leaves no issue for the court to pass upon in that case.

Little v. Bowers, 134 U. S. 547, followed.

THE Court stated the case as follows:

The appellant, the complainant below, is a corporation formed under the laws of New Jersey. The defendant Wright is the comptroller-general of the State of Georgia, and the

Statement of the Case.

defendant Thomas the sheriff of one of its counties, both citizens of that State. The complainant is engaged, in New Jersey, in the manufacture of sewing machines and articles employed in their use. These it sends, and has been in the habit of sending for many years, to Georgia, where it keeps on hand in its buildings a large stock and sells them to consumers, or by sub-agents sent through the State.

In December, 1886, the legislature of Georgia passed an act to raise revenue for the fiscal years of 1887 and 1888, which, among other things, provided for the collection of a license tax from the vendors of sewing machines in the State.

The bill alleges that in this tax the act discriminates between retail dealers who are individuals, and dealers who are companies or wholesale dealers in machines on which the tax required has not been paid by the manufacturing companies, in this, that it requires of the latter the payment of two hundred dollars for the purpose of doing business in the State, and in addition a tax of ten dollars for each agent employed, whilst of the former no tax at all is required. It is, therefore, contended that the act, in this respect, violates the 7th article of the state constitution, requiring uniformity of taxation upon the same class of subjects, and also the last clause in the 1st section of the 14th Amendment of the Constitution of the United States, which declares that no State shall "deny to any person within its jurisdiction the equal protection of the laws," and thereby imposes a limitation upon all the powers of the State which can touch the individual or his property.

The bill sets forth, in substance, that, notwithstanding these alleged grounds of invalidity in the law, the comptroller general of the State is seeking to enforce the collection of the tax, and has placed, or is about to place, for this purpose, executions in the hands of the defendant Thomas, sheriff of Fulton County. It therefore prays for an injunction staying. the proceedings until the further order of the court, and that upon the final hearing the comptroller may be perpetually enjoined from issuing any execution for the collection of the

tax.

The comptroller general answered the bill, and upon the

Argument for Appellant.

hearing which followed the court denied the injunction and dismissed the bill. 33 Fed. Rep. 121. From its decree the case was brought to this court on appeal.

[Before the case was reached the appellees' counsel represented to the court that the executions issued by the comp troller general for taxes due the State of Georgia, when the bill in said case was filed by the appellant, and to enjoin the collection of which taxes was the relief sought by said bill, had been paid by said appellant since the decree appealed from was rendered as shown by the certificate of said comptroller general attached, as an exhibit thereto and moved "that said appeal be dismissed for the reason that abstract questions of law only are now involved in said case, and that the only remedy remaining to said appellant is to bring a suit against the said comptroller general for the recovery of said taxes so paid to him under protest." The argument on this motion was heard with the argument on the merits.]

Mr. Clifford Anderson for the motion, and for the appellees.

Mr. Grosvenor P. Lowrey and Mr. George Hillyer (with whom was Mr. Joseph S. Auerbach on the brief) opposing, and for the appellant.

The payment of the disputed tax was involuntary, and affords no ground for inferring any waiver or release of errors, or other admission by the appellant, inconsistent with the continued prosecution of its appeal.

I. This court has repeatedly decided that a payment by a party "to release his property from detention" is not a voluntary payment. Railroad Co. v. Commissioner, 98 U. S. 541; Cleaveland v. Richardson, 132 U. S. 318.

II. Submission to legal process after exhausting the only remedy in the law which could prevent its issue or enforcement, was no waiver, either of the right to enforce restitution by action or by appeal, or of the right to appeal from the original refusal of the remedy. The complainant resisted first in court. and then out of court, and on each occasion to the then extent

Opinion of the Court.

of its power. Its ill success showed no acquiescence on its part, but was eloquent of resistance, persisted in and intended to be continued. "Resistance to the extent of a man's power," says a distinguished jurist, "is certainly a new kind of waiver." Avery v. Slack, 17 Wend. 85; Merriam v. Haas, 3 Wall. 687; United States v. Dashiel, 3 Wall. 688; Hayes v. Nourse, 107 N. Y. 577; O'Hara v. MacConnell, 93 U. S. 150.

III. In the case of an appeal in New Jersey, from a denial of a temporary injunction, it was urged that the act sought to be enjoined had been accomplished. Held, that this did not prevent a review of the order appealed from. Terhune v. Midland Railroad, 9 Stewart, (36 N. J. Eq.) 318.

IV. The present motion is clearly distinguishable from the case of Little v. Bowers, 134 U. S. 547. It there appeared that on certiorari certain assessments for taxes were confirmed. The Federal question involved in the writ of error in this court was whether these assessments impaired the obligation of a contract.

It appeared on the motion to dismiss that the taxes had been reduced and readjusted under an act passed after the certiorari, and this reduced amount had been paid before any warrant had been issued for their collection and several months

before such warrant could have been issued, or any proceedings to compel payment could have been commenced.

This court in dismissing the writ of error held that the taxes were not paid under duress. "Their payment under the circumstances above set forth was in the nature of a compromise by which the city agreed to take and the company agreed to pay a less sum than originally assessed. The effect of this act was to extinguish the controversy between the parties to this suit."

MR. JUSTICE FIELD, after stating the case, delivered the opinion of the court.

We are relieved from a consideration of the interesting questions presented as to the validity of the legislation of Georgia, levying a license tax upon dealers in sewing machines, arising