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he first paid a license tax of $10 for each year. A foreign corporation, without paying this license tax, obtained contracts for pictures and frames through its solicitors in the city of Greensboro. It secured rooms in a hotel in the city, and shipped the pictures and frames from Chicago in large and separate packages to itself at Greensboro, where one of its agents took the packages from the railway freight station to the company's rooms, broke them open, put the pictures in their respective frames, and then delivered them to the purchasers. He was convicted of a violation of the ordinance, and the Supreme Court of the state sustained his conviction on the familiar ground that the ordinance made no discrimination between foreign and domestic corporations, or between interstate and intrastate commerce. The Supreme Court answered this contention in these words, quoted from an earlier opinion:

“It is strongly urged, as if it were a material point in the case, that no discrimination is made between domestic and foreign drummers—those of Tennessee and those of other states; that all are taxed alike. But that does not meet the difficulty. Interstate commerce cannot be taxed at all, even though the same amount of tax should be laid on domestic commerce, or that which is carried on solely within the state. This was decided in the case of The State Freight Tax, 15 Wall. 232, 21 L. Ed. 146. The negotiation of sales of goods which are in another state, for the purpose of introducing them into the state in which the negotiation is made, is interstate commerce. A New Orleans merchant cannot be taxed there for ordering goods from London or • New York, because in the one case it is an act of foreign and in the other of interstate commerce, both of which are subject to regulation by Congress alone."

It then quoted the opinion of the Supreme Court of North Carolina, that the transaction was not interstate commerce because the pictures and frames were shipped to the foreign corporation itself in Greensboro, were taken to its rooms in the hotel, there taken out of their original packages and put together, and then delivered by its agent, although it conceded that if the pictures had been placed in their frames in Chicago, and then shipped directly to the purchasers in original packages, that business might have been interstate commerce, and said:

"We are not persuaded by their reasoning. It seems to proceed upon two propositions: First, that the pictures in question were not completed before they were brought to Greensboro; and, second, that the articles were not shipped directly to the purchasers, but to an agent of the sender in Greensboro. But it certainly cannot be pretended that, if the pictures and the disconnected frames had been directly shipped to the purchasers, the license tax could have been imposed, either on the vendor out of the state, or on the purchaser within the state. If the pictures and the frames intended for them had been shipped directly to the purchasers, whether in the same or separate packages, such a transaction would, beyond question, be interstate commerce, beyond the reach of the taxing power of the state. It is too plain for argument that the supposed incomplete condition of articles of commerce, if shipped directly to the purchasers, cannot subject them to the license tax. Nor does the fact that these articles were not shipped separately and directly to each individual purchaser, but were sent to an agent of the vendor at Greensboro, who delivered them to the purchasers, deprive the transaction of its character as interstate commerce.

That the articles were sent as freight by rail, and were received at the railroad station by an agent who delivered them to the respective purchasers, in no wise changes the character of the commerce as interstate. Transactions between manufacturing companies in one state, through agents, with citizens of another, constitute a large part of interstate commerce; and for us to hold, with the court below, that


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the same articles, if sent by rail directly to the purchasers, are free from state taxation, but, if sent to an agent to deliver, are taxable through a license tax upon the agent, would evidently take a considerable portion of such traffic out of the salutary protection of the interstate commerce clause of the Constitution."

In the light of the foregoing decisions there can be no doubt that no state in the Union retains the power to exclude a foreign corporation from, or to condition or burden its exercise of its constitutional right to carry on interstate commerce in recognized staple articles of commerce within the limits of the state.

There is yet another exception to the power of a state to condition the right of a foreign corporation to do business within its borders. It may not limit that right by requiring the corporation, as a condition of doing business, to waive or surrender its right to a determination of its controversies with citizens of other states in the national courts.

In Insurance Company v. Morse, 20 Wall. 445, 455, 456, 22 L. Ed. 365, the state of Wisconsin had enacted a law which by its terms conditioned the exercise by an insurance corporation of its right to do business in the state by requiring a contract on its part not to remove any suit against it to the federal court. The corporation made the agreement, but subsequently filed a petition and gave a bond for the removal of the action against it, brought by a citizen of Wisconsin, from the state court to the federal court. The court of the state denied the petition and gave judgment for the plaintiff, which was affirmed by the Supreme Court of the state. The Supreme Court of the United States again quoted and qualified the broad statement of the power of a state to exclude a foreign corporation, found in Paul v. Virginia, 8 Wall. 168, 19 L. Ed. 357. It said of that statement:

“The general language of the learned justice is to be expounded with reference to the judgment before him."

Speaking of the case of Paul v. Virginia, it declared that:

“It had no reference to the clause giving to citizens of other states the right of litigation in the United States courts, and certainly had no bearing upon the right of corporations to resort to those courts, or the power of the state to limit and restrict such resort."

Discussing the question upon its merits, the opinion proceeded in

this way:



"The Constitution of the United States declares that the judicial power of the United States shall extend to all cases in law and equity arising under that Constitution, the laws of the United States, and to the treaties made or which shall be made under their authority,

and to controversies between a state and citizens of another state and between citizens of different states. The jurisdiction of the federal courts under this clause of the Constitution depends upon and is regulated by the laws of the United States. State legislation cannot confer jurisdiction upon the federal courts, nor can it limit or restrict the authority given by Congress in pursuance of the Constitution. This has been held many times. Railway Company v. Whitton, 13 Wall. 270, 20 L. Ed. 571; Payne v. Hook, 7 Wall. 427, 19 L. Ed. 260; The Moses Taylor, 4 Wall. 411, 18 L. Ed. 397, and cases cited. It has also been held many times that a corporation is a citizen of the state by which it is created and in which its principal place of business is situate, so far as that it can sue and be sued in the federal courts. This court has repeatedly held that a corporation was a citizen of the state creating it, within the clause of the Coustitution


extending the jurisdiction of the federal courts to citizens of different states." 20 Wall. 453, 22 L. Ed. 365.

The Supreme Court reversed the judgment below, and held (1) that the Constitution of the United States secured to corporations of other states the absolute right to remove their cases into the federal courts upon compliance with the national statutes, and (2) that the statute of Wisconsin was an obstruction to that right, was repugnant to the Constitution of the United States and the laws in pursuance thereof, and was illegal and void.

The question arose again in Barron v. Burnside, 121 U. S. 186, 200, 7 Sup. Ct. 931, 936, 30 L. Ed. 915, and the former decision was affirmed. The court said:

"As the Iowa statute makes the right to a permit dependent upon the surrender by the foreign corporation of a privilege secured to it by the Constitution and laws of the United States, the statute requiring the permit must be held to be void.

* In all the cases in which this court has considered the subject of the granting by a state to a foreign corporation of its consent to the transaction of business in the state, it has uniformly asserted that no conditions can be imposed by the state which are repugnant to the Constitution and laws of the United States."

The review of the decisions of the Supreme Court relating to the power of a state to trammel or destroy the right of a corporation of another state to do business within its borders in which we have indulged may have been tedious; but it may be profitable, if it serve to correct the erroneous view that such a corporation has no such right, and that all its powers and privileges without the limits of the state of its creation are at the mercy of any state in which it attempts to do business. It is not now, and it never has been, the law that no corporation of one state has any absolute right of recognition in other states, or that other states may exclude all the corporations of any state from doing any business within them, or that they may condition their transaction of such business by such terms as they may think proper to impose.

The Constitution of the United States and the acts of Congress in pursuance thereof are the supreme law of the land. Under that Constitution and those laws a corporation of one state has at least three absolute rights which it may freely exercise in every other state in the Union, without let or hindrance from its legislation, or action:

(1) Every corporation, empowered to engage in interstate commerce by the state in which it is created, may carry on interstate commerce in every state in the Union, free of every prohibition and condition imposed by the latter. Pensacola Telegraph Company v. Western Union Telegraph Company, 96 U. S. 1, 8, 24 L. Ed. 708; Cooper Manufacturing Company v. Ferguson, 113 U. S. 727, 736, 737, 5 Sup. Ct. 739, 28 L. Ed. 1137; Pembina Silver Mining Company v. Pennsylvania, 125 U. S. 181, 190, 8 Sup. Ct. 737, 31 L. Ed. 650; Lyng v. Michigan, 135 U. S. 161, 166, 10 Sup. Ct. 725, 34 L. Ed. 150; Norfolk, etc., Ry. Co. v. Pennsylvania, 136 U. S. 114, 115, 118, 120, 10 Sup. Ct. 958, 34 L. Ed. 394; Crutcher v. Kentucky, 141 U. S. 47, 57, 59, 11 Sup. Ct. 851, 35 L. Ed. 649; Horn Silver Mining Company v. New York, 143 U. S. 305, 315, 12 Sup. Ct. 403, 36 L. Ed. 164; Osborne v. Florida, 164 U. S. 650, 655, 656, 17 Sup. Ct. 214, 41 L. Ed. 586; Missouri, K. & T. Trust Co. v. Krumseig, 172 U. S. 351, 19 Sup. Ct. 179, 43 L. Ed. 474; Caldwell v. North Carolina, 187 U. S. 622, 623, 23 Sup. Ct. 229, 47 L. Ed. 336.

(2) Every corporation of any state in the employ of the United States has the right to exercise the necessary corporate powers and to transact the business requisite to discharge the duties of that employment in every other state in the Union without permission granted, or conditions imposed by the latter. Pembina Mining Co. v. Pennsylvania, 125 U. S. 181, 186, 8 Sup. Ct. 737, 31 L. Ed. 650; Horn Silver Mining Co. v. New York, 143 U. S. 305, 315, 12 Sup. Ct. 403, 36 L. Ed. 164.

(3) Every corporation of each state has the absolute right to institute and maintain in the federal courts, and to remove to those courts for trial and decision, its suits in every other state, in the cases and on the terms prescribed by the acts ci Congress. Insurance Company v. Morse, 87 U. S. 445, 453, 456, 22 L. Ed. 365; Barron v. Burnside, 121 U. S. 186, 200, 7 Sup. Ct. 931, 30 L. Ed. 915.

Every law of a state which attempts to destroy these rights or to burden their exercise is violative of the Constitution of the United States and void. The Constitution and statutes of Colorado prohibit every foreign corporation from doing business and from exercising any corporate power in that state until it pays the fees and the annual license tax and complies with the other requirements of its statutes. The result is that in so far as this Constitution and these statutes forbid or obstruct the exercise by a foreign corporation of it right to use the necessary corporate powers to carry on interstate commerce and to maintain and defend its suits in the federal courts, they are repugnant to the Constitution and laws of the nation and ineffective.

We come, then, to the question: Were the contracts in suit transactions of interstate commerce? The contract of January, 1903, was made in New York, and that of October, 1903, in Colorado; but the place of their execution is immaterial here, because the right of the rubber company was as absolute to make and to perform a contract of interstate commerce in Colorado as in New Jersey.

The contention that the rubber goods ceased to be articles of interstate commerce, and became a part of the mass of the property in the state, upon their delivery to the consignee, is likewise immaterial. The soundness of this contention is not conceded. But, if it were, neither that concession nor the numerous authorities upon the taxation of property in the state would be either decisive or persuasive here, for the question is, not whether or not the goods were taxable within the state, but whether or not the state could lawfully prohibit their importation and annul all contracts therefor. If a part of the goods or of the business of the rubber company has been or is within the state of Colorado, there are adequate methods of taxing it, without restraining or prohibiting its interstate commerce, and that fact furnishes no support for such a prohibition. Le Loup v. Port of Mobile, 127 U. S. 640, 647, 8 Sup. Ct. 1380, 32 L. Ed. 311; Crutcher v. Kentucky, 141 U. S. 47, 59, 11 Sup. Ct. 851, 35 L. Ed. 619.

Nor is the fact that these contracts did not evidence sales of the goods determinative of this question. A sale is not the test of interstate commerce. All sales of sound articles of commerce, which necessitate the transportation of the goods sold from one state to another, are interstate commerce; but all interstate commerce is not sales of goods. Importation into one state from another is the indispensable element, the test, of interstate commerce; and every negotiation, contract, trade, and dealing between citizens of different states, which contemplates and causes such importation, whether it be of goods, persons, or information, is a transaction of interstate commerce. “Since the case of Gibbons v. Ogden, 9 Wheat. 1, 6 L. Ed. 23,” said Chief Justice Waite in Pensacola Telegraph Co. v. Western Union Telegraph Co., 96 U. S. 8, 24 L. Ed. 708, "it has never been doubted that commercial intercourse is an element of commerce which comes within the regulating power of Congress.” The contracts before us constituted and caused commercial intercourse between citizens of different states. Their chief purpose and their principal effect were the importation of sound articles of commerce into the state of Colorado from other states, and they necessarily constituted transactions of interstate commerce. Caldwell v. North Carolina, 187 U. S. 622, 629, 23 Sup. Ct. 229, 47 L. Ed. 336; Wagner v. Meakin, 92 Fed. 76, 33 C. C. A. 577, 581, 584; Allen v. Tyson-Jones Buggy Co., 91 Tex. 22, 40 S. W. 393, 714; Chattanooga R. & C. R. Co. v. Evans, 66 Fed. 809, 814, 14 C. C. A. 116; Gunn v. White Sewing Machine Co., 57 Ark. 24, 20 S. W. 591, 18 L. R. A. 206, 38 Am. St. Rep. 223; Keating Implement & Machine Co. v. Favorite Carriage Co., 12 Tex. Civ. App. 666, 35 S. W. 417. The decision of the Supreme Court of Kentucky to the contrary in Commonwealth v. Parlin & Orendorff Co., 118 Ky. 168, 80 S. W. 791, has been thoughtfully read, but it does not commend itself to our judgment.

As the contracts were transactions of interstate commerce, any prohibition or obstruction to the making of them, or to the enforcement of them in the national courts, by the legislation or action of the state of Colorado, was beyond the power of the state and futile. Where the Congress has passed no law regulating interstate commerce in well-recognized articles of commerce, that fact is conclusive evidence that it intends such commerce to be free, and any law of a state which prohibits or restrains it at all is unconstitutional and void. Caldwell v. North Carolina, 187 U. S. 622, 629, 23 Sup. Ct. 229, 47 L. Ed. 336; Brown v. Houston, 114 U. S. 622, 631, 5 Sup. Ct. 1091, 29 L. Ed. 257; Bowerman v. Rogers, 125 U. S. 585, 587, 8 Sup. Ct. 986, 31 L. Ed. 815; Walling v. Michigan, 116 U.S. 455, 456, 6 Sup. Ct. 454, 29 L. Ed. 691; Welton v. The State of Missouri, 91 U. S. 275, 282, 23 L. Ed. 347; State Freight Tax, 15 Wall. 232, 21 L. Ed. 146; Brennan v. Titusville, 153 U. S. 289, 302, 14 Sup. Ct. 829, 38 L. Ed. 719; Robbins v. Shelby County Taxing District, 120 U. S. 489, 493, 7 Sup. Ct. 592, 30 L. Ed. 694; Le Loup v. Mobile, 127 U. S. 610, 647, 648, 8 Sup. Ct. 1380, 32 L. Ed. 311; Lyng v. Michigan, 135 U. S. 161, 166, 10 Sup. Ct. 725, 34 L. Ed. 150; Leisy v. Hardin, 135 U. S. 100, 119, 10 Sup. Ct. 681, 34 L. Ed. 128.

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