1. Where objection to a tax imposed under general state statutes
was limited to a claim of constitutional immunity for the
particular subject taxed, without drawing in question the validity
of the statutes as construed or of the authority exercised under
the state in imposing the tax, a judgment sustaining the tax is
reviewable by certiorari, but not by writ of error, under Jud.Code
§ 237, as amended. P. 257 U. S.
2. A constitutional ground advanced for the first time in a
petition for rehearing, presented to a state supreme court and
denied without reasons given, comes too late to raise a question
for review by this Court. P. 257 U. S.
3. A membership in the New York Stock Exchange, although
partaking of the nature of a personal privilege and assignable only
with qualifications, is a valuable property right subject to
property taxation. P. 257 U. S.
4. Whether such a membership, when held by a resident of Ohio,
is subjected to taxation by the Ohio taxing laws is a question of
state law determinable by the supreme court of that state. P.
257 U. S.
Page 257 U. S. 100
5. Since a membership carries peculiar and valuable privileges,
not confined to the real estate of the exchange in New York, which
enable a nonresident member to conduct a lucrative business in the
state of his residence through other members in New York, his
membership is taxable as intangible personal property at his
domicile. P. 257 U. S. 108
Louisville & Jeffersonville Ferry Co. v. Kentucky,
188 U. S. 385
6. Taxation by two states upon identical or closely related
property interests falling within the jurisdiction of both is not
forbidden by the Fourteenth Amendment. P. 257 U. S.
7. A discrimination, in imposing a tax in Ohio on a membership
in the New York Stock Exchange while exempting memberships in a
local stock exchange, which may have been due to mere accident or
negligence of subordinate officials, or have been based upon some
fair reason, the presumption of which was not rebutted,
not to render the tax invalid under the Equal
Protection Clause. P. 257 U. S.
8. The fact that nonresident members of the New York Stock
Exchange may deal in its securities through other members for less
commissions than are charged nonmembers affords a reasonable ground
for taxing the privilege in the one case and not in the other. P.
257 U. S.
9. A tax on a membership in the New York Stock Exchange employed
by an Ohio broker in executing orders for his Ohio clients through
the exchange in New York held
not an unconstitutional
burden on interstate commerce. P. 257 U. S.
100 Oh.St. 251 affirmed.
Review of a judgment of the Supreme Court of Ohio sustaining a
tax in a suit brought by Anderson to enjoin its enforcement.
Page 257 U. S. 106
MR. JUSTICE PITNEY delivered the opinion of the Court.
A suit for injunction brought in a state court by Anderson
against Durr, then Auditor, and Cooper, then Treasurer, of Hamilton
County, Ohio, raised the question whether a certain property tax
imposed under authority of the State of Ohio upon plaintiff, a
resident of that state, by reason of his owning a membership --
figuratively termed a "seat" -- in the New York Stock Exchange,
infringed his rights under the commerce clause of the Constitution
of the United States or the "due process of law" or "equal
protection" provisions of the Fourteenth Amendment. His assault
upon the tax was sustained by the court of first instance (20 Ohio
N.P.,N.S. 538), but overruled by the court of appeals (29 O.C.A.
465), and finally by the supreme court of the state (100 Ohio St.
251). Until the decision of the latter court, the federal right had
been asserted merely as a claim of immunity from the tax under the
constitutional provisions referred to, without drawing in question
the validity of any statute of, or authority exercised under, the
state on the ground of their being repugnant to those provisions.
After the final decision, in an application to the supreme court
for a rehearing, plaintiff for the first time asserted that the
decision, if adhered to, rendered the Ohio taxation statutes
invalid because of such repugnance. This application was denied
without reasons given, and hence must be regarded as having come
too late to raise any question for review by this Court. Loeber
v. Schroeder, 149 U. S. 580
149 U. S. 585
Fullerton v. Texas, 196 U. S. 192
196 U. S. 193
Corkran Oil Co. v. Arnaudet, 199 U.
, 199 U. S. 193
Therefore a writ of error, allowed by the chief justice of the
supreme court, must be dismissed because not the proper mode of
review under § 237 Judicial Code, as amended by Act of September 6,
1916, c. 448, 39 Stat. 726. But an application for the allowance of
a writ of certiorari, made to this Court under
Page 257 U. S. 107
the same section, consideration of which was postponed until the
hearing on the writ of error, will be granted, and the case
The essential facts are as follows: plaintiff holds a membership
or seat in the New York Stock Exchange for which he paid $60,000,
and which carries valuable privileges and has a market value for
the purposes of sale. The Exchange is not a corporation or stock
company, but a voluntary association consisting of 1,100 members,
governed by its own constitution, bylaws, and rules and holding the
beneficial ownership of the entire capital stock of a New York
corporation which owns the building in which the business of the
Exchange is transacted, with the land upon which it stands,
situated in the City of New York and having a value in excess of
$5,000,000. A member has the privilege of transacting a brokerage
business in securities listed upon the Exchange, but may personally
buy or sell only in the Exchange building. Membership is evidenced
merely by a letter from the secretary of the Exchange notifying the
recipient that he has been elected to membership. Admissions to
membership are made on the vote of the committee on admissions.
Membership may be transferred only upon approval of the transfer by
the committee, and the proceeds are applied first to pay charges
and claims against the retiring member arising under the rules of
the Exchange, any surplus being paid to him. On the death of a
member, his membership is subject to be disposed of by the
committee, but his widow and descendants are entitled to certain
payments out of a fund known as the "gratuity fund." In the
business of brokers in stocks and bonds, a differentiation is made
between members of the Exchange and nonmembers in that business is
transacted by members on account of other members at a commission
materially less than that charged to nonmembers. A firm having as a
general partner a member of the Exchange is entitled to
Page 257 U. S. 108
have its business transacted at the rates prescribed for
That a membership held by a resident of the State of Ohio in the
Exchange is a valuable property right, intangible in its nature but
of so substantial a character as to be a proper subject of property
taxation, is too plain for discussion. That such a membership,
although partaking of the nature of a personal privilege and
assignable only with qualifications, is property within the meaning
of the bankrupt laws has repeatedly been held by this Court.
Hyde v. Woods, 94 U. S. 523
94 U. S.
-525; Sparhawk v. Yerkes, 142 U. S.
, 142 U. S. 12
Page v. Edmunds, 187 U. S. 596
187 U. S. 601
Whether it is subjected to taxation by the taxing laws of Ohio is a
question of state law, answered in the affirmative by the court of
last resort of that state, by whose decision upon this point we are
controlled. Clement Nat. Bank v. Vermont, 231 U.
, 231 U. S.
The chief contention here is based upon the due process of law
provision of the Fourteenth Amendment, it being insisted that the
privilege of membership in the Exchange is so inseparably connected
with specific real estate in New York that its taxable situs must
be regarded as not within the jurisdiction of the State of Ohio.
Louisville & Jeffersonville Ferry Co. v. Kentucky,
188 U. S. 385
cited. It is very clear, however, as the supreme court held, that
the valuable privilege of such membership is not confined to the
real estate of the Stock Exchange; that a member has a contractual
right to have the association conducted in accordance with its
rules and regulations, and incidentally, has the right to deal
through other members on certain fixed percentages and methods of
division of commissions; that this right to secure the services of
other members and to "split commissions" is a valuable right, by
which plaintiff in Cincinnati may properly hold himself out as a
member entitled to the privileges of the Exchange, denied to
Page 257 U. S. 109
that thus he is enabled to conduct from and in his Cincinnati
office a lucrative business through other members in New York. The
court held, and was warranted in holding, that the membership is
personal property, and, being without fixed situs, has a taxable
situs at the domicile of the owner. Mobilia sequuntur
personam. See Union Transit Co. v. Kentucky,
199 U. S. 194
199 U. S. 205
The asserted analogy to Louisville & Jeffersonville Ferry
Co. v. Kentucky, supra,
cannot be accepted. That decision
related to a public franchise arising out of legislative grant,
held to be an incorporeal hereditament in the nature of real
property and to have no taxable situs outside the granting state.
It did not involve the taxation of intangible personal property.
See Hawley v. Malden, 232 U. S. 1
232 U. S. 11
Cream of Wheat Co. v. Grand Forks, 253 U.
, 253 U. S.
Nor is plaintiff's case stronger if we assume that the
membership privileges exercisable locally in New York enable that
state to tax them even as against a resident of Ohio. See
Rogers v. Hennepin County, 240 U. S. 184
240 U. S. 191
Exemption from double taxation by one and the same state is not
guaranteed by the Fourteenth Amendment, St. Louis S.W. Ry. v.
Arkansas, 235 U. S. 350
235 U. S.
-368; much less is taxation by two states upon
identical or closely related property interests falling within the
jurisdiction of both, forbidden, Kidd v. Alabama,
188 U. S. 730
188 U. S. 732
Hawley v. Malden, 232 U. S. 1
232 U. S. 13
Fidelity & Columbia Trust Co. v. Louisville,
245 U. S. 54
245 U. S.
That plaintiff is denied the equal protection of the laws within
the meaning of the Fourteenth Amendment cannot be successfully
maintained upon the record before us. The argument is that other
brokers in the same city are not taxed upon the value of their
memberships in the local stock exchange, nor upon the privilege of
doing business in New York Stock Exchange securities. As to the
Page 257 U. S. 110
local exchange memberships, it may be that the failure to tax
them is but accidental, or due to some negligence of subordinate
officers, and is not properly to be regarded as the act of the
state. If it be state action, there is a presumption that some fair
reason exists to support the exemption, not applicable to a
membership in the New York Exchange, and plaintiff has shown
nothing to overcome the presumption. As to the privilege referred
to, it already has been shown that the rights incident to
plaintiff's property interest give him pecuniary advantages over
others in the same business. Manifestly this furnishes a reasonable
ground for taxing him upon the property right, although others
enjoying lesser privileges because of not having it may remain
The contention that the tax constitutes a direct burden upon
interstate commerce is groundless. Ordinary property taxation
imposed upon property employed in interstate commerce does not
amount to an unconstitutional burden upon the commerce itself.
Pullman's Car Co. v. Pennsylvania, 141 U. S.
, 141 U. S. 23
Cleveland, etc., Railway Co. v. Backus, 154 U.
, 154 U. S. 445
Postal Telegraph Cable Co. v. Adams, 155 U.
, 155 U. S.
Writ of error Dismissed.
Writ of certiorari granted.
MR. JUSTICE HOLMES.
The question whether a seat in the New York Stock Exchange is
taxable in Ohio consistently with the principles established by
this Court seems to me more difficult than it does to my Brethren.
All rights are intangible personal relations between the subject
and the object of them created by law. But it is established that
it is not enough that the subject, the owner of the right, is
within the power of the taxing state. He cannot be taxed for land
situated elsewhere, and the same is true of personal
Page 257 U. S. 111
property permanently out of the jurisdiction. It does not
matter, I take it, whether the interest is legal or equitable, or
what the machinery by which it is reached, but the question is
whether the object of the right is so local in its foundation and
prime meaning that it should stand like an interest in land. If
left to myself, I should have thought that the foundation and
substance of the plaintiff's right was the right of himself and his
associates personally to enter the New York Stock Exchange building
and to do business there. I should have thought that all the rest
was incidental to that, and that that, on its face was localized in
New York. If so, it does not matter whether it is real or personal
property, or that it adds to the owner's credit and facilities in
Ohio. The same would be true of a great estate in New York
As my Brothers VAN DEVANTER and McREYNOLDS share the same
doubts, it has seemed to us proper that they should be