Reclamation District, 111 U. S. 701, or by the holding of the court that the plaintiff has such right in the trial of a suit to enjoin the collection of the tax, is not material. The state court in this case has held the taxpayer entitled to a hearing and has granted and enforced such right, and upon the trial has reduced the tax. In so doing the court below has not assumed the legislative function of making an assessment. It has merely reduced, after a full hearing, the amount of an assessment made by the assessor under color at least of legislative authority.

The Court of Appeals has held that the power of the trial court in giving the hearing has been properly exercised.

It is urged that the court below has not in fact decided that the assessment against plaintiff as reduced was legal, but only that plaintiff will not be heard upon the question of enjoining the collection of the tax until plaintiff tenders the amount of tax equitably due. The plaintiff denies that there is any amount equitably due, and it contends that it has not had an opportunity to show the invalidity of the assessment. We think the contention not well founded. The court has held that the burden rested upon the plaintiff to show the invalidity of the tax. Even if erroneous this decision is not one of a Federal nature. It had the chance, at all events, to show the invalidity of the tax in whole or in part. Upon the evidence given on the trial the tax was reduced, and the Court of Appeals has said:

"The claim of appellant to escape a retrospective assessment of the property of its cestui que trust in this case is wholly technical. That it owes the tax it seeks to evade is made apparent by an examination of this record. Although it had in its hands the means of instantly and most conclusively showing either that the trust estate did not own the property with which it was assessed, or that the values were too high, it introduced no evidence whatever on this subject. While it was not incumbent on the appellees to introduce any evidence, being authorized under the principles herein enunciated to

await the evidence of appellant showing the invalidity of the assessment complained of, yet they did introduce evidence which we think clearly establishes that appellant justly owes the amount of the tax which has been adjudged against the estate of its cestui que trust."

We think it sufficiently appears that the plaintiff had an opportunity to be heard upon the question of the validity of the tax, both for want of notice in fact, and whether the property assessed for back taxes had really been omitted from the original list for the years in question, and was therefore properly taxable under the assessment for back taxes. Even if the assessment had been made by the assessor without notice, yet if upon the hearing in this cause the plaintiff had the right and an opportunity to be heard, and the assessment was thereon reduced, it has obtained all the hearing it was entitled to. We think the plaintiff did have such a hearing, and the judgment is correct, so far at least as this court is authorized to review it. It is therefore

Affirmed.

MISSISSIPPI RAILROAD COMMISSION v. ILLINOIS CENTRAL RAILROAD COMPANY.

APPEAL FROM THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT.

No. 64. Argued October 26, 1906.-Decided December 3, 1906.

Where complainant not only sets up diverse citizenship but also a constitutional question he has the right to appeal from the judgment of the Circuit Court to the Circuit Court of Appeals, and from its decision an appeal or writ of error may be taken to this court. Field v. Barber Asphalt Co., 194 U. S. 618, distinguished.

A commission created by the law of a State for the purpose of supervising and controlling the acts of railroad companies operating within the State is subject to suit, and a suit brought by a company of another State in the

Circuit Court of the United States against the members of the commission is not a suit against the State within the prohibitions of the Eleventh Amendment. The Railroad Commission of Mississippi is not, as has been determined by the highest court of that State, a court, but a mere administrative agency of the State, and the prohibitions of § 720, Rev. Stat., against injunctions from United States courts to stay proceedings in state courts are not applicable thereto; and even though the Commission might, under the state law, resort to the state courts to aid it in enforcing its orders the proceeding cannot be regarded as one in the state courts within the meaning of § 720, Rev. Stat. While a state railroad commission may, in the absence of congressional legislation, order a railroad company to stop interstate trains at stations where there is only an incidental interference with interstate commerce, based on a legal exercise of the police power of the State exerted to secure proper facilities for the citizens of the State, where the railroad company has-as in this case-furnished all proper and reasonable facilities, such an order is an improper and illegal interference with interstate commerce and void as a violation of the commerce clause of the Constitution.

138 Fed. Rep. 327, affirmed.

THE railroad commission of the State of Mississippi, and its members and clerk, as appellants, bring to this court by appeal the judgment of the Circuit Court of Appeals for the Fifth Circuit, which court reversed the judgment of the United States Circuit Court for the Southern District of Mississippi in favor of the appellants, and remanded the case, with directions to enter a decree for the complainant, the railroad company.

The case, as it appears in the record, shows the following facts:

The citizens of the town of Magnolia, which has about 1,200 inhabitants, and is situated in the State of Mississippi, on the line of the railroad of the defendant in error, and about ninetyeight miles north of New Orleans, in April, 1903, presented a petition to the Mississippi Railroad Commission, asking that commission to order the railroad company to stop its passenger trains numbers one, three and four at the Magnolia station, the ground of the request being, as stated in the petition, that Magnolia was one of the most progressive towns in the State and the county seat of the county, and the petitioners believed

that they were entitled to håve these trains make regular stops at that point, and they stated their belief that it was for the best interest of the public, as well as the town, to have the passenger trains named make regular stops at the town.

Trains numbers one and three were south bound trains from Chicago, passing Magnolia on their way to New Orleans, while train number four was a train on its way north to Chicago from New Orleans.

After a hearing before the railroad commission, on notice to the railroad company, the commission made an order granting the application as to trains one and three and denying it as to number four.

Before obeying the order the company brought this suit to enjoin its enforcement. Upon the filing of the bill a temporary injunction was issued, and a subsequent motion to dissolve it was denied. The defendant in the suit, the railroad commission, answered the bill, and denied that the railroad company furnished the town of Magnolia with adequate accommodations for the south, and put in issue the allegations of the bill that the order made by the commission was unreasonable or an illegal interference with the interstate commerce of the railroad company. The case came on for hearing before the Circuit Court, at the end of which a decree was made denying the relief asked for by the complainant, the court holding that the order of the commission was not unreasonable, and that, therefore, the temporary injunction should be and it was dissolved. An appeal to the Circuit Court of Appeals was prayed for by the railroad company and granted.

The bill stated, amongst other things, that the corporation was created under the laws of the State of Illinois, and that the complainant was a resident of that State, and domiciled in the city of Chicago; and that the railroad commission was created by the State of Mississippi, and its individual members were citizens and residents of that State. The complainant further showed that it was operating an interstate line of railroad, extending from the city of New Orleans, in Louisiana, VOL. CCIII-22

north through that State and the States of Mississippi, Kentucky, Indiana and Illinois to the Great Lakes of the Northwest, connecting at various points with other lines of interstate railroads. It is also averred that the Congress of the United States had established the line of railroad operated by the complainant as a national highway, for the accommodation of interstate commerce and the carriage of the mails of the United States, and had been so recognized and promoted as such by various acts of Congress; that owing to the exigencies of its interstate business and the requirements of modern commerce and passenger transportation, as well as the transportation of freight and the United States mails, the complainant had been, from time to time, required to shorten its schedule and to maintain and operate certain fast through trains, intended primarily and chiefly for interstate transportation and interstate commerce; that the two trains, numbered one and three-one being known as the fast mail and the other as the New Orleans and Chicago Limited-were run expressly for the purpose of carrying the interstate business and for the transportation of the United States mail, and that they were run on special schedules for that purpose, and of necessity had to make close connections with other through trunk lines of railroad doing an interstate business, and in order to maintain the necessary schedule of time for the operation of these interstate trains it was impossible and wholly impracticable to stop at all stations; and, further, that these trains, being south bound trains, only stop regularly at junction points and all such points of importance in the State of Mississippi which are necessary and which justify such stops. The bill showed the accommodations which were afforded the town of Magnolia by the other trains provided by the company, and which it alleged sufficiently accommodated the traveling public at that point; that a compliance with the order of the commission, by stopping the trains named, would imperil the ability of the complainant to comply with its contract with the United States for the carriage of the mails, and