statute, and to the enforcement of the particular liabilities which that statute defined. The limitation to a particular class of employés of railroad corporations is based upon the decisions of the state court that the benefits of the original statute were confined to those who were engaged in the hazardous business of operating railroads. Deppe v. Railroad Co., 36 Iowa, 52; Malone v. Railway Co., 65 Iowa, 417; Akeson v. Railway Co., 106 Iowa, 54. It is said that all employés of the plaintiffs in error may become members of the Relief Department and that the limited application of the amendment, as to the effect of the acceptance of benefits under the membership contract, is an invalid discrimination. It was, however, entirely competent for the legislature in enacting the prohibition, for the purpose of securing the enforcement of the liability it had defined, to limit it to those cases in which the liability arose. As the purpose of the amendment was to supplement the original statute, the classification was properly the same. And with respect to subsequent transactions the amendment must be regarded as having the same validity as it would have had if it had formed a part of the earlier enactment. No criticism on the ground of discrimination can successfully be addressed to the amendatory act which would not likewise impeach the statute in its earlier form. But the propriety of the classification of the original statute was considered and upheld by this court. And the validity of legislation abrogating the fellow-servant rule, both with respect to the class of cases embraced in the statute, and also where it is abolished as to railway employés generally, has been sustained. Minneapolis & St. Louis Ry. Co. v. Herrick, supra; Missouri Railway Co. v. Mackey, supra; Louisville & Nashville R. R. Co. v. Melton, 218 U. S. 36; Mobile, Jackson & Kansas City R. R. Co. v. Turnipseed, ante, p. 35. In view of the full discussion of this subject in the recent decisions 219 U.S. Argument for Plaintiff in Error. above cited, nothing further need be said upon this point. We find none of the objections which have been made to the validity of the amendatory act to be well taken, and the judgment is, therefore, Affirmed. NOBLE STATE BANK v. HASKELL. MOTION FOR LEAVE TO FILE PETITION FOR REHEARING. No. 71. Submitted January 27, 1911.-Decided February 20, 1911. Motion for leave to file petition for rehearing in Noble State Bank v. Haskell, ante, p. 104, denied. Even where powerful arguments can be made against the wisdom of legislation this court can say nothing, as it is not concerned therewith. Among the public uses for which private property may be taken are some which, if looked at only in their immediate aspect according to the approximate effect of the taking, may seem to be private. Clark v. Nash, 198 U. S. 361; Strickley v. Highland Boy Mining Co., 200 U. S. 527. Payments required by a bank guarantee statute which can be avoided by going out of the banking business, and are required only as a condition for keeping on in such business from corporations created by the State, do not amount to a taking of private property without compensation or a deprivation of property without due process of law; and so held as to the Oklahoma Bank Guarantee statute heretofore sustained as to its constitutionality, ante, p. 104. THE facts are stated in the opinion. Mr. C. B. Ames for plaintiff in error: Counsel hardly presumes to expect this court to reconsider a conclusion reached by unanimous agreement, but respectfully suggests that the opinion is based on an Argument for Plaintiff in Error. 219 U. S. erroneous assumption of fact and on a principle of law not supported by former decisions. The erroneous assumption of fact is that the property taken by the law under consideration is a comparatively insignificant portion of the bank's capital. The principle of law referred to is that a portion of the bank's property may be taken without return to pay debts of a failing rival in business. While the amount of the particular assessment involved in this case is small when considered alone, it is large when considered as a percentage of the bank's capital stock, amounting to 3.30/100 per cent, and if this law is valid, then, of course, similar laws might be passed applicable to all state and national banks. Two per cent of the deposits in the United States would be over $280,000,000 which is more than fifteen per cent of the total capital stock. Even if two per cent may never be levied, still the law permits the levy. A law which takes eight per cent of the aggregate capital of all the banks as a preliminary step towards creating a guaranty fund, which authorizes an annual taking thereafter of fifteen per cent, which, when applied to aggregates, mounts up into the hundreds of millions of dollars, cannot be justified as the taking of a comparatively insignificant portion of the bank's property. As to the bank's reversionary interest in the unused portion of the fund, the last message of the Governor of Oklahoma shows an average loss of approximately two per cent per annum on the entire capital and surplus as of November 10, 1910. This law not only takes from the banks this enormous sum of money, but it takes from the banker the value of his reputation and reduces all bankers, good, bad and indifferent, to the same level. The fact that the average annual losses of our national banks has been only a small per cent of their deposits is 219 U. S. Argument for Plaintiff in Error. no argument that the same condition would prevail under a guarantee law. See addresses delivered by J. W. McNeal before American Bankers' Association, and by Daniel W. Hogan before the Nebraska State Bankers' Association in September, 1908. They illustrate that the conclusion of law that a portion of the bank's property may be taken without return to pay debts of a failing rival in business is unsupported by authority. In Clark v. Nash, 198 U. S. 361; Strickley v. Highland Boy Mining Co., 200 U. S. 527, 531; Offield v. New York, N. H. & H. R. R. Co., 203 U. S. 372; and Bacon v. Walker, 204 U. S. 311, 315, the basis in each case was that the property was taken for public use. As to Bacon v. Walker see Sweet v. Valentine, 8 Idaho, 431. When property is taken for public use the compensation must be in money and not in some so-called general benefit. Lewis on Em. Dom., 3d ed., §§ 502-505. The legislature is the exclusive judge of the existence of an emergency and when one is declared it is binding on the courts, Oklahoma City v. Shields, 22 Oklahoma, 265; S. C., 100 Pac. Rep. 559; In re Menefee, 22 Oklahoma, 365; 97 Pac. Rep. 1014; but the doctrine laid down in the opinion substitutes public opinion for the constitution. Public opinion can only be ascertained from the will of the people as declared by the legislature, and, therefore, the decision substitutes the act of the legislature for the constitution. C., B. & Q. R. R. Co. v. Illinois, 200 U. S. 341. The legal objection to such a law would be that it takes private property for private use. The practical objection would be that it discourages careful scrutiny in taking checks, and encourages reckless and incompetent business. Putting the cost of an examination upon the bank does not take its property for a private use because the fee charged goes to the public officers of the State and is for a public use. The opinion is in direct conflict with the entire range of decisions holding that state action imposing a railroad VOL. CCXIX-37 Argument for Plaintiff in Error. 219 U. S. rate too low to furnish return on the investment is unconstitutional as a taking of private property for private use. Munn v. Illinois, 94 U. S. 113. There is a twilight zone separating public use from private use and within this zone the line of division is irregular and here it is that the courts differ from each other in the application of the principle, but the difficulty heretofore has been in determining whether the use was public or private. When it has once been determined that the property is being taken for a private use that has heretofore been regarded as the complete settlement of the controversy. L. & N. R. R. Co. v. Central Stock Yards Co., 212 U. S. 132; Missouri Pacific R. R. Co. v. Nebraska, 217 U. S. 196. Private property cannot be taken for private use, and if taken for public use, there must be compensation. Missouri Pacific R. R. Co. v. Nebraska, 164 U. S. 403; Wilkinson v. Leland, 2 Pet. 626, 658; Boyd v. United States, 116 U. S. 616, 635; Yick Wo v. Hopkins, 118 U. S. 356; Lawton v. Steele, 152 U. S. 133, 137; Cole v. City of LaGrange, 113 U. S. 1; Connolly v. Union Sewer Pipe Co., 184 U. S. 540, 558; C., B. & Q. R. R. Co. v. Chicago, 166 U.S. 226; Muhlker v. N. Y., N. H. & H. R. R. Co., 197 U. S. 544; C., B. & Q. R. R. Co. v. Illinois, 200 U. S. 561. Private property cannot be taken for private use under the taxing power. 8 Rose's Notes, 362; Missouri &c. Ry. Co. v. Nebraska, 164 U. S. 417; Garland v. Board of Revenue, 87 Alabama, 227; McClelland v. State, 138 Indiana, 332. Osawakee v. Township, 14 Kansas, 420, 428; Blain v. Agricultural Society, 21 Kansas, 560; Atchison &c. R. R. Co. v. Atchison, 47 Kansas, 714; Geneseo v. Gas Co., 55 Kansas, 362; Lancaster v. Clayton, 86 Kentucky, 380; Baltimore &c. R. R. Co. v. Spring, 80 Maryland, 517; Kingman v. Brockton, 153 Massachusetts, 259; Opinion of Justices, 155 Massachusetts, 601; State v. Foley, 30 Minne |