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privileges and immunities of citizens in the several states.' Article 4, $ 2. That was not, however, the case of a corporation engaged in interstate commerce; and enough was said by the court to show that, if it had been, very different questions would have been presented.”
In Cooper Manufacturing Company v. Ferguson, 113 U. S. 727, 5 Sup. Ct. 739, 28 L. Ed. 1137, a corporation of the state of Ohio, in the face of the constitutional and statutory prohibition against doing business in Colorado, without filing its certificate of incorporation, appointing its agent for service, and specifying its principal place of business in that state, made a contract in the state of Colorado, with citizens of that state, to sell and deliver to them in Ohio a steam engine and other machinery for an agreed price. The purchasers refused to pay the price, and pleaded in answer to an action for it the invalidity of the contract, because the Ohio corporation had failed to comply with the qualifying statute, and the court dismissed the action. The Supreme Court reversed that judgment. It held that the Constitution and the statutes of Colorado could not be so literally construed as to prohibit a single act of business within the state, and added :
"So it is clear that the statute cannot be construed to impose upon a foreign corporation limitations of its right to make contracts in the state for carrying on commerce between the states, for that would make the act an invasion of the exclusive right of Congress to regulate commerce among the several states."
Mr. Justice Matthews and Mr. Justice Blatchford delivered a concurring opinion (pages 736, 737, of 113 U. S. page 742 of 5 Sup. Ct. [28 L. Ed. 1137]), in which they announced the rule upon this subject which has ever since prevailed in that court. They said:
"In the present case, the construction claimed for the Constitution of Colorado and the statute of that state passed in execution of it cannot be extended to prevent the plaintiff in error, a corporation of another state, from transacting any business in Colorado which of itself is commerce. The transaction in question was clearly of that character. It was the making of a contract in Colorado to manufacture certain machinery in Ohio, to be there delivered for transportation to the purchasers in Colorado. That was commerce; and to prohibit it, except upon conditions, is to regulate commerce between Colorado and Ohio, which is within the exclusive province of Congress. It is quite competent, no doubt, for Colorado to probibit a foreign corporation from acquiring a domicile in that state, and to prohibit it from carrying on within that state its business of manufacturing machinery. But it cannot prohibit it from selling in Colorado, by contracts made there, its machinery manufactured elsewhere, for that would be to regulate commerce between the states."
In Pembina Mining Company v. Pennsylvania, 125 U. S. 181, 190, 8 Sup. Ct. 737, 741, 31 L. Ed. 650, the Supreme Court held that a state might exact a license fee for allowing a corporation, which was not engaged in interstate or foreign commerce, to maintain an office for its officers, stockholders, agents, and employés, but added that the power to exclude a foreign corporation from doing business within its limits, or to exact conditions for allowing it so to do, or for allowing it to hire offices therein did not exist, "where the corporation is in the employ of the federal government, or where its business is strictly commerce, interstate or foreign. The control of such commerce, being in the federal government, is not to be restricted by state authority.”
In Fritts v. Palmer, 132 U. S. 282, 283, 10 Sup. Ct. 93, 33 L. Ed. 317, a foreign corporation which was not engaged in commerce purchased, took, and conveyed a title to real estate in Colorado without filing the certificate of incorporation and appointments required by the Constitution and statutes of that state, and the Supreme Court sustained the title upon the ground that the only penalty for the violation of the statutes was the liability of the officers and stockholders imposed in such cases.
İn Lyng v. Michigan, 135 U. S. 161, 166, 10 Sup. Ct. 725, 726, 31 L. Ed. 150, the state of Michigan imposed an annual tax of $300 upon the business of selling brewed or malt liquors. Citizens of Wisconsin were engaged in manufacturing such liquors at Green Bay, in that state. They owned a warehouse at Iron River, in the state of Michigan, to which they shipped and in which they stored their liquor for sale in the original packages, and they employed Lyng as their agent to sell it there. Neither they nor their agent paid the tax; but he sold the liquor, and was arrested and convicted for a violation of the law. The Supreme Court reversed the conviction, citing Le Loup v. Mobile, 127 U. S. 640, 648, 8 Sup. Ct. 1380, 32 L. Ed. 311, and Bowman v. Chicago & Northwestern Railway, 125 U. S. 465, 8 Sup. Ct. 689, 31 L. Ed. 700, and said:
"We have repeatedly held that no state has the right to lay a tax on interstate commerce in any form, whether by way of duties laid on the transportation of subjects of that commerce, or on the receipts derived from that transportation, or on the occupation or business of carrying it on, for the reason that such taxation is a burden on that commerce, and amounts to a regulation of it, which belongs solely to Congress.”
In Norfolk & Western R. R. Co. v. Pennsylvania, 136 U. S. 114, 115, 118, 120, 10 Sup. Ct. 958, 960, 34 L. Ed. 394, the state of Pennsylvania had prohibited every foreign corporation, except insurance companies, which did not invest and use its capital in that commonwealth, from having any office or offices in that state, unless it paid an annual tax or license fee of one-fourth of a mill upon each dollar of its authorized capital to the auditor of the state. The Norfolk & Western Railroad Company was a foreign corporation. It had no railroad, and with trifling exceptions no capital, in the state of Pennsylvania; but its line of railroad in Virginia and West Virginia connected with other railroads, so that it formed a link in a through line of railroad over which, as a part of the business thereof, freight and passengers were carried into and out of the state. It had offices in Pennsylvania for the use of its officers, stockholders, agents, and employés.' The Auditor assessed the annual tax upon it, and the state recovered a judgment therefor, which was affirmed by the Supreme Court of Pennsylvania. The Supreme Court of the United States reversed that judgment and said:
"It is well settled by numerous decisions of this court that a state cannot, under the guise of a license tax, exclude from its jurisdiction a foreign corporation engaged in interstate commerce, or impose any burden upon such commerce within its limits.
One of the terms of the contract by which the plaintiff in error became a link in the through line of road referred to in the findings of fact provided that 'it shall be the duty of each initial road, member of the line, to solicit and procure traffic for the Great Southern Despatch (the name of said through line] at its own proper cost and expense.' Again, the plaintiff in error does not exercise, or seek to exercise, in Pennsylvania any privilege or franchise not immediately connected with interstate commerce and required for the purposes thereof. Before establishing its office in Philadelphia it obtained from the Secretary of the Commonwealth the certificate required by the act of the state Legislature of 1874 enabling it to maintain an office in the state. That office was maintained because of the necessities of the interstate business of the company, and for no other purpose. A tax upon it was, therefore, a tax upon one of the means or instrumentalities of the company's interstate commerce, and as such was in violation of the commercial clause of the Constitution of the United States. Gloucester Ferry Co. v. Pennsylvania, 114 U. S. 196, 5 Sup. Ct. 826, 29 L. Ed. 158; Philadelphia Steamship Co. v. Pennsylvania, 122 U. S. 326, 7 Sup. Ct. 1118, 30 L. Ed. 1200, and cases cited; McCall v. California, 136 U. S. 104, 10 Sup. Ct. 881, 34 L. Ed. 392.”
In Crutcher v. Kentucky, 141 U. S. 47, 57-59, 11 Sup. Ct. 851, 853, 854, 35 L. Ed. 649, the Legislature of that state had prohibited any agent of a foreign express company from doing business in the state unless the express company first filed with the Auditor of the State a statement of its articles of association and satisfactory evidence that it had $150,000 invested in some safe dividend paying stock and had paid to the Auditor of State fees to the amount of $20. Crutcher, the agent of a foreign corporation which was engaged in both interstate and intrastate commerce in Kentucky, was convicted and fined for a violation of this statute, and his conviction was affirmed by the Supreme Court of the state. But the Supreme Court of the United States reversed that conviction, and held that the state statute was unconstitutional and void, with declarations of the law which bear with compelling force upon the issue in this case. It said:
“If a partnership firm of individuals should undertake to carry on the business of interstate commerce between Kentucky and other states, it would not be within the province of the state Legislature to exact conditions on which they should carry on their business, nor to require them to take out a license therefor. To carry on interstate commerce is not a franchise or a privilege granted by the state. It is a right which every citizen of the United States is entitled to exercise under the Constitution and laws of the United States; and the accession of mere corporate facilities, as a matter of convenience in carrying on their business, cannot have the effect of depriving them of such right, unless Congress should see fit to interpose some contrary regulation on the subject. It has frequently been laid down by this court that the power of Congress over interstate commerce is as absolute as it is over foreign commerce. Would any one pretend that a state Legislature could prohibit a foreign corporation-an English or a French transportation company, for example_from coming into its borders and landing goods and passengers at its wharves, and soliciting goods and passengers for a return voyage, without first obtaining a license from some state officer, and filing a sworn statement as to the amount of its capital stock paid in? And why not? Evidently because the matter is not within the province of state legislation, but within that of national legislation.
And the same thing is exactly true with regard to interstate commerce as it is with regard to foreign commerce. We do not think that the difficulty is at all obviated by the fact that the express company, as incidental to its main business (which is to carry goods between different states), does also some local business by carrying goods froni one point to another within the state of Kentucky. This is, probably, quite as much for the accommodation of the people of that state as for the advantage of the company. But, whether so or not, it does not obviate the objection
that the regulations as to license and capital stock are imposed as conditions on the company's carrying on the business of interstate commerce, which was manifestly the principal object of its organization. These regulations are clearly a burden and a restriction upon that commerce. Whether intended as such, or not, they operate as such.”
In Horn Silver Mining Company v. New York State, 143 U. S. 305, 315, 12 Sup. Ct. 403, 405, 36 L. Ed. 164, a corporation of Utah, which alleged in its answer that it was a manufacturing corporation carrying on manufactures in the state of New York, and which was found by the courts to have been engaged in business independently of interstate commerce, was held to be subject to a franchise tax levied upon all corporations, domestic and foreign, by a law of the state of New York." But Justice Field, who delivered the opinion of the court in that case and also in Paul v. Virginia, after quoting the unrestricted terms he used in the latter case, declared that two qualifications or exceptions to the power of a state to destroy or limit the right of a foreign corporation to do business within its limits had been established, one, that it could not exclude or condition the right of a foreign corporation to transact the business of interstate or foreign commerce within its borders; and another, that it could not exclude or condition the right of such a corporation to do business in the state when it was in the employ of the general government.
In Osborne v. Florida, 164 U. S. 650, 655, 17 Sup. Ct. 214, 41 L. Ed. 586, the Supreme Court of that state held that one of its statutes, which imposed a license fee upon all express companies doing business in the state, did not apply to or affect in any manner the business of a company which was interstate in its character, and that, so long as an express company confined its operations to interstate or foreign commerce, it was wholly exempt from this statute, and the Supreme Court sustained that decision, and in reviewing Crutcher v. Kentucky, 141 U. S. 47, 11 Sup. Ct. 851, 35 L. Ed. 619, made these remarks which are pertinent to the Colorado Constitution and statutes here under consideration:
"The statute herein differs from the cases where statutes upon this subject have been held void, because in those cases the statutes prohibited the doing of any business in the state whatever, unless upon the payment of a fee or tax. It was said as to those cases that, as the law made the payment of the fee or the obtaining of the license a condition to the right to do any business whatever, whether interstate or purely local, it was on that account a regulation of interstate commerce, and therefore void. Here, however, under the construction as given by the state court, the company suffers no harm from the provisions of the statute. It can conduct its interstate business without paying the slightest heed to the act, because it does not apply to or in any degree affect the company in regard to that portion of its business which it has the right to conduct without regulation from the state. The company in this case need take out no license and pay no tax for doing interstate business, and the statute is therefore valid.”
In Miller v. Ammon, 145 U. S. 421, 422, 12 Sup. Ct. 884, 36 L. Ed. 759, cited by the appellant, a citizen of Wisconsin purchased of the plaintiff in Chicago, on credit, and the plaintiff delivered to the purchaser in Chicago, wine, in violation of the ordinance of the city of Chicago, which prohibited such a sale in that city without a license, under a penalty of from $50 to $100. There was no interstate commerce in the transaction, and the Supreme Court held that the liquor traffic was freighted with peril to the general welfare, that the contract of sale was unlawful, and that the plaintiff could not recover the purchase price.
84 C.C.A. -12
In Missouri, Kansas & Texas Trust Company v. Krumseig, 172 U. S. 351, 19 Sup. Ct. 179, 43 L. Ed. 474, the Supreme Court of Minnesota had held that a statute of that state which declared that, whenever it satisfactorily appeared to a court that any evidence of debt was usurious, the court should declare it void, required the court to declare it void, without requiring the moneys borrowed upon it to be repaid, and the Supreme Court held that this construction must be given to the statute in a suit in equity in the federal court, based upon the statute. But that court added :
“Of course, these views are not applicable to cases arising out of interstate commerce, where the policy to be enforced is federal."
In Diamond Glue Co. v. U. S. Glue Company, 187 U. S. 611, 23 Sup. Ct. 206, 47 L. Ed. 328, a foreign corporation, without qualifying to do business according to the law of the state of Wisconsin, made a contract to supervise the plans for a glue factory to be built upon a site in that state, to manage the manufacturing in the factory, to operate it for the defendant, and to do various other things. After the factory had been erected and put in operation, the defendant failed to comply with some of its terms, and the foreign corporation brought a suit upon it. The Supreme Court held that the contract was not for the carrying on of interstate commerce, but for the doing of a local business in the state of Wisconsin, and that it could not be enforced. This case is cited and much relied upon by counsel for the appellant; but it fails to govern the issue here in controversy, because the contract of the foreign corporation in that case was to carry on a local business in the state of Wisconsin.
In Chattanooga Building & Loan Ass'n v. Denson, 189 U. S. 408, 23 Sup. Ct. 630, 47 L. Ed. 870, cited by appellant, no question of interstate commerce arose, and the Supreme Court followed the opinion of the highest judicial tribunal of Alabama, to the effect that loaning money and taking a mortgage upon property in that state constituted doing business therein, and made the note and mortgage void where it had been taken by a foreign corporation without complying with the qualifying statute of the state.
In Pennsylvania Lumbermen's Mutual Fire Insurance Co. v. Meyer, 197 U. S. 407, 25 Sup. Ct. 483, 49 L. Ed. 810, and Board of Trade v. Hammond Elevator Co., 198 U. S. 424, 441, 25 Sup. Ct. 740, 49 L. Ed. 1111, no question of the regulation of interstate commerce arose, and the only issue was whether the foreign corporations had been doing business in the state to such an extent that the service of process upon one of their directors or agents therein was a lawful service upon the corporation.
In Caldwell v. North Carolina, 187 U. S. 622, 623, 23 Sup. Ct. 229, 47 L. Ed. 336, an ordinance of the city of Greensboro prohibited every person from engaging in the business of selling or delivering picture frames, pictures, photographs, or likenesses of the human face, unless