Opinion of the Court.

excepted to or proper instructions requested, the judgment for this error may or may not be reversed. If the omission was a material error, calculated to injure the rights of the defendant, though the error is called to the attention of the court first in a motion for new trial, the judgment should be re-. versed; but in determining whether the error is material and calculated to injure the rights of the accused, we are to look to the whole record bearing upon the subject. What was the nature of the testimony supporting the verdict? Was it cogent and overwhelming? What the character of the testimony presenting the phase or theory of the case omitted to be noticed in the charge and upon which omission error is assigned? Was it at all reasonable? Did it present a theory which a reasonable mind could entertain, or was it supported by such testimony as was remotely calculated to destroy the State's case? When considered in connection with the other testimony in the case, as well as the charge as a whole, was the phase of the case simply an addition to the case as made by the State and consistent therewith, or was it in direct conflict with the State's theory? These are all important matters to be considered in passing upon the materiality of the omission or error so as properly to determine whether the error was calculated to injure the rights of the accused." The evidence considered, the conclusion was reached" that, if a charge had been submitted, permitting the jury to find a less degree, no juror with the least degree of intelligence, unless corrupt, would have entertained for a moment the suggestion of any theory less than murder of the first degree," and that, after a careful examination of the record in the light of the argument and brief for the condemned, and bearing in mind the penalty awarded, the court had failed to find any error requiring a reversal. The discussion was renewed and reënforced in the opinion upon overruling the motion for a rehearing, and additional authorities were cited.

In view of the legitimate purview of the Fourteenth Amendment, as settled by repeated exposition, it is impossible for us to hold that in all this the plaintiff in error was deprived of due process of law or denied the equal protection of the laws, or that his privileges or immunities were abridged.

Opinion of the Court.

In Calton v. Utah, 130 U. S. 83, we held that where the Code of Utah provided that imprisonment at hard labor in the penitentiary for life might be substituted for the penalty of death when the accused was found guilty of murder in the first degree, if the jury made a recommendation to that effect, the court erred in not calling the attention of the jury to that provision of the statute, since it was not to be presumed that they were aware of their right to make such recommendation; but that was a case which came directly to us from the Supreme Court of the Territory, and the inquiry related to the commission of mere error, and statutory provisions like those of Texas were not under consideration.

A writ of error to review the judgment of the highest tribunal of a State stands on far different ground and cannot be maintained in the absence of a Federal question giving us jurisdiction. The state courts rendered no decision in favor of the validity of a statute of or authority exercised under the State, drawn in question on the ground of repugnancy to the laws of the United States, nor was any title, right, privilege or immunity under such constitution or statute specially set up or claimed in the case. It is not within our province to pass upon any of the questions sought to be presented, as they fall entirely within the scope of the exercise of the powers of the State.

The writ of error is

VOL. CXXXIX-42

Dismissed.

Opinion of the Court.

ALLEN v. PULLMAN'S PALACE CAR COMPANY.

SAME v. SAME.

APPEALS FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE MIDDLE DISTRICT OF TENNESSEE.

Purely injunction bills cannot be maintained to restrain the collection of taxes upon the sole ground of their unconstitutionality. Shelton v. Platt, 139 U. S. 591, affirmed and applied.

When in a suit in equity this court finds, on examining the proofs, nothing which makes a proper case for equity, it is its duty to recognize the fact, and give it effect though not raised by the pleadings, nor suggested by counsel.

IN EQUITY. The case is stated in the opinion.

Mr. G. W. Pickle, Attorney General of the State of Tennessee, for appellant.

Mr. Edward S. Isham and Mr. John S. Runnells for appellee.

MR. CHIEF JUSTICE FULLER delivered the opinion of the

court.

These were bills filed in the Circuit Court of the United States for the Middle District of Tennessee against the comptroller of that State, for an injunction restraining him from the collection from complainant of certain privilege taxes or license fees for the years 1887, 1888 and 1889, under laws of the State of Tennessee in that behalf, which complainant averred to be in conflict with the Federal and state constitutions, and the taxes accordingly illegal and void.

In No. 1381, the bill alleged that the comptroller was threatening to issue his warrant for the collection of the taxes and to levy it upon complainant's sleeping cars, "and your orator believes and fears that said defendant, unless

Opinion of the Court.

restrained by this honorable court, will proceed to force the collection of said tax so illegally assessed and claimed, by distraining and seizing upon your orator's cars from your orator, and that the proceedings threatened for the collection of said taxes will lead to a multiplicity of suits and will greatly harass your orator. Your orator further shows that all the sleeping and drawing-room cars aforesaid, running in the State of Tennessee, are attached to through express trains on the roads of said railroad companies; that prior to their arrival in Tennessee seats and sleeping berths therein have always been sold by your orator to persons travelling from other States into Tennessee; that your orator has at all times contracts with passengers to give them the accommodations furnished by said cars while travelling upon such railroads; that unless your orator pays the taxes so illegally imposed upon it, your orator believes and fears that said defendant will, unless restrained therefrom by this court, levy upon and seize, in order to force from your orator said illegal taxes, said sleeping and drawing-room cars while the same are in actual use and running attached to said express trains; that thereby the travelling public will be discommoded, the carriage of passengers interstate will be prevented, your orator and said railroad companies may become harassed by many suits for damages by passengers for not furnishing them the accommodations they contracted for, the credit and reputation of your orator for furnishing comfortable accommodations, which credit and reputation are of great value to it and have been established by strict attention to business and at great expense and trouble for many years, will be broken up, and the good will of said business greatly impaired, and thereby your orator will suffer great and irreparable injury."

In No. 1382 complainant averred that the comptroller had issued his warrant to the sheriff of the county of Davidson, Tennessee, and the sheriff by his deputy, one Hobson, "has, by force, and pretending to act under said warrant, seized upon the sleeping car Wetumpka,' belonging to your orator, and now holds the same in their possession; that said car is reasonably worth $8000; that said Hobson has advertised

Opinion of the Court.

and threatens to sell said car to satisfy said illegal and pretended tax. That said sleeping car of your orator when seized was being used by your orator in the carrying on of interstate commerce as aforesaid, and was in use as an instrument of interstate commerce and was in Tennessee only by virtue of such use, and was therefore not liable to be taken in satisfaction of said tax, even if it had been a valid tax. That the railroad companies over whose lines of road your orator operates cars are common carriers, and are obliged by law to take upon their trains and carry all who properly present themselves for carriage whether they are travelling between points wholly within Tennessee or not; that such passengers, travelling locally in Tennessee, sometimes apply for sleepingcar accommodations in your orator's cars attached to such train, and, if your orator is obliged to receive them on its cars, then the State of Tennessee by such tax act forces your orator to pay such privilege tax and take out such license or to cease carrying on the interstate commerce in which it is now engaged. That said defendants have demanded said three thousand dollars from your orator, and have declared that they will force your orator to pay the same; that they now threaten to sell said car so seized by them, and your orator believes will do so unless restrained by this honorable court; that said car is very valuable, but will not bring its full value at a forced sale, and your orator fears that it will be sold for a small amount not sufficient to pay said tax, and your orator believes and fears that said defendants, unless restrained by this honorable court, will thereupon proceed to enforce the collection of said tax so illegally claimed, by distraining and seizing upon your orator's other cars, and that the proceedings threatened by defendants for the collection of said taxes will greatly harass your orator. Your orator further shows that all its sleeping cars aforesaid running through the State of Tennessee are attached to through express trains on the roads of the said railroad companies; that prior to their arrival in Tennessee seats and berths have always been sold by your orator to persons travelling from other States into Tennessee; that your orator has at all times contracts with passengers to