amount of the authorized capital of the corporation. The absolute power of exclusion includes the right to allow a conditional and restricted exercise of its corporate powers within the State.

* The only limitation upon this power of the State to exclude a foreign corporation from doing business within its limits, or hiring offices for that purpose, or to exact conditions for allowing the corporation to do business or hire offices there, arises 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. Judgment affirmed.

Note.-Western Union Telegraph Co. v. Kansas, 216 U. S. 1 (1910). A statute passed by the State of Kansas in 1898 provided that foreign corporations desiring to do business in the State should make application to the State Charter Board, accompanying their applications with a fee of $25, and if the Board granted the application they should pay for the benefit of the school fund a charter fee of 1-10 of 1 per cent, of their authorized capital stock upon the first $100,000 of their capital, 1-20 of 1 per cent. upon the next $400,000, and for each $1,000,000 or major part thereof above the sum of $500,000, $200. The payment of this fee was made a condition precedent to the doing of business in the State. The Western Union Telegraph Company made application, stating that its authorized capital stock was $100,000,000, whereupon the Board granted it permission to do business provided it paid a charter fee of $20,100. The company refused to pay the tax on the ground that it violated the commerce and due process of law clauses of the United States Constitution. The Supreme Court held that the State law was unconstitutional and void. In making this decision the Court used the following language:

*

* *

"It is clear that the making of the payment by the telegraph company, as a charter fee, of a given per cent. of its authorized capital, representing, as that capital clearly does, all of its business and property, both within and outside of the State, a condition of its right to do local business in Kansas, is, in its essence, not simply a tax for the privilege of doing local business in the State, but a burden and tax on the company's interstate business and on its property located or used outside of the State. That fee, plainly, is not based on such of the company's capital stock as represented in its local business and property in Kansas. The requirement is a given per cent. of the company's authorized capital; that is, all its capital, wherever or however employed, whether in the United States or in foreign countries, and whatever may be the extent of its lines in Kansas as compared with its lines outside of that State. What part of the fee exacted is to be attributed to the company's domestic business in Kansas and what part to interstate business, the State has not chosen to ascertain and declare in the statute. It strikes at the company's entire business, wherever conducted, and its property, wherever located, and, in terms, makes it a condition of the company's telegraph right to transact purely local business in Kansas that it shall contribute, for the benefit of the State school fund, a given per cent. of its whole authorized capital, representing all of its property and all its business and interests everywhere. * *** It is easy to be seen that if every State should pass a statute similar to that enacted by Kansas, not only the

Feturn to

BUREAU OF INTERNATIONAL RELATIONS

freedom of interstate commerce would be destroyed, the decisions of this court nullified, and the business of the country thrown into confusion, but each State would continue to meet its own local expenses not only by exactions that directly burdened such commerce, but by taxation upon property situated beyond its limits."

S. S. WHITE DENTAL MANUFACTURING COMPANY v. COMMONWEALTH OF MASSACHUSETTS.

BALTIC MINING COMPANY v. COMMONWEALTH OF MASSACHUSETTS.

231 U. S. 68. Decided November 3rd, 1913.

The S. S. White Dental Manufacturing Company is a Pennsylvania corporation engaged in manufacturing and selling artificial teeth and dental supplies with an authorized capital stock of $1,000,000, and with its principal office in Philadelphia. Its assets aggregate $5,711,718.29. It has a usual place of business in Boston, where it keeps a supply of goods displayed for sale and in stock. The stock on hand in the Boston store, the fixtures and the current bank deposits, represented the tangible property in Massachusetts, and amounted to about $100,000. The State of Massachusetts imposed a tax upon the corporation in accordance with the following section of its law (Mass. Pub. Stat., 1909, Chap. 490, Section 56): "Every foreign corporation shall in every year at the time of filing its annual certificate of condition, pay to the treasurer and receiver general, for the use of the Commonwealth, an excise tax, to be assessed by the tax commissioner, of 1-50 of 1 per cent. of the par value of its authorized capital stock as stated in its annual certificate of condition; but the amount of such excise tax shall not in any one year exceed the sum of $2,000." The company paid the tax for a number of years, and then brought suit to recover back the amount it had so paid, upon the ground that the tax was a regulation of interstate commerce.

The Baltic Mining Company, a Michigan corporation, owning a copper mine with equipment in Michigan, and having an office in the city of Boston for the use of its President and Treasurer, having a total authorized capital stock of $2,500,000, with none of its property in the State of Massachusetts, except current bank deposits, brought an action of the same character, and the two cases involving the same questions were decided in the one opinion of the court.

MR. JUSTICE DAY delivered the opinion of the court:

The mere fact that a corporation is engaged in interstate commerce does not exempt its property from State taxation. United

States Exp. Co. v. Minnesota, 223 U. S. 335. It is the commerce itself which must not be burdened by State exactions which interfere with the exclusive Federal authority over it. A resort to the receipts of property or capital employed in part, at least, in interstate commerce, when such receipts or capital are not taxed as such, but are taken as a mere measure of a tax of lawful authority within the State, has been sustained. * * ** It is said, that this tax is a direct burden upon interstate commerce, and an attempt to tax property beyond the jurisdiction of the State, within the authority of the Kansas cases, Western U. Teleg. Co. v. Kansas, 216 U. S. 1; Pullman Co. v. Kansas, 216 U. S. 56. * * * * In Western U. Teleg. Co. v. Kansas, and Pullman Co. v. Kansas, the statute under which the State of Kansas undertook to levy a charter fee of 1-10 of 1 per cent. of their authorized capital upon the first $100,000 of the capital stock of foreign corporations, and 1-20 of 1 per cent. upon the next $400,000, and for each million or major part thereof, $200, making a tax of $20,100 against the Western Union Telegraph Company, and $14,800 against the Pullman Company, was declared to be unconstitutional, as having the effect not simply to exert the lawful power of taxing a foreign corporation for the privilege of doing local business, but to burden interstate commerce, and to reach property represented by the capital stock of the companies, which was duly paid in and invested in property in many States, and therefore beyond the taxing jurisdiction of Kansas. Every case involving the validity of a tax must be decided upon its own facts, and having no disposition to limit the authority of these cases, the facts upon which they were decided must not be lost sight of in deciding other and alleged similar cases. In the Kansas cases the business of both complaining companies was commerce, the same instrumentalities and the same agencies carrying on in the same places the business of the companies of State and interstate character. In the Western U. Teleg. Co. case, the company had a large amount of property permanently located within the State, and between 800 and 900 offices constantly carrying on both State and interstate business. The Pullman Company had been running a large number of cars within the State, in State and interstate business, for many years. There was no attempt to separate the intrastate business from the interstate business by the limitations of State lines in its prosecution. * * In the cases at bar the business for which the companies are chartered is not, of itself, commerce. True it is, that their products are sold and shipped in interstate commerce, and to that extent they are engaged in the business of carrying on interstate commerce, and are entitled to the protection of the Federal Constitution against laws burdening commerce of that character. Interstate commerce of all kinds is within the protection of the Constitution of the United States, and it is not within the authority of a State to tax it by burdensome laws. From the statement of facts it is apparent, however, that each of the corporations in question is carrying on a purely local and domestic business, quite separate

*

from its interstate transactions. That local and domestic business, for the privilege of doing which the State has imposed a tax, is real and substantial, and not so connected with the interstate commerce as to render a tax upon it a burden upon the interstate business of the companies involved. In these cases the ultimate contention is not that the receipts from interstate commerce are taxed as such, but that the property of the corporations, including that used in such commerce, represented by the authorized capital of the corporations, is taxed, and therefore interstate commerce is unlawfully burdened by a State statute. While the tax is imposed by taking a percentage of the authorized capital, the agreed facts show that the authorized capital is only a part of the capital of the corporations, respectively. In the Baltic Mining Company case, the authorized capital is $2,500,000, while the entire property and assets are $10,766,000; and in the White Dental Company case the authorized capital is $1,000,000, while the assets aggregate $5,711,718.29. Further, the Massachusetts statute limits the tax to a maximum of $2,000. The conclusion, therefore, that the authorized capital is only used as the measure of a tax, in itself lawful, without the necessary effect of burdening interstate commerce, brings the legislation within the authority of the State. So, if the tax is, as we hold it to be, levied upon a legitimate subject of such taxation, it is not void because imposed upon property beyond the State's jurisdiction, for the property itself is not taxed. In so far as it is represented in the authorized capital stock, it is used only as a measure of taxation, and, as we have seen, such measure may be found in property or in the receipts from property not in themselves taxable. * * * * As this statute has been construed by the Supreme Judicial Court of Massachusetts, and applied in these cases, we are unable to find that the tax imposed violates the constitutional rights of the plaintiffs in error.

Judgments affirmed.

Dissenting: The Chief Justice, Mr. Justice Van Devanter and Mr. Justice Pitney.

2. The State Police Power as Affecting Commerce.

WILLSON v. BLACKBIRD CREEK MARSH COMPANY.

2 PETERS, 245. 1829.

A statute of the State of Delaware authorized the Blackbird Creek Marsh Company to erect a dam on Blackbird Creek, a navigable stream wholly within the State. By this dam property along the stream was improved, but it blocked the river and stopped navigation. Willson and others owned a sloop, regularly enrolled under an act of Congress and licensed to carry on the coasting trade.

The owners of the sloop destroyed the dam in getting their boat up the creek. The company then sued them for trespass. The owners of the sloop sought to justify their act on the theory that the Blackbird Creek being a navigable stream, was a highway of interstate commerce, and therefore the State statute permitting the company to dam it conflicted with the act of Congress, under which they were licensed. The highest court of the State gave judgment in favor of the company, whereupon an appeal was taken to the United States Supreme Court.

MR. CHIEF JUSTICE MARSHALL delivered the opinion of the court.

The Act of Assembly by which the plaintiffs were authorized to construct their dam, shows plainly that this is one of those many creeks, passing through a deep level marsh adjoining the Delaware, up which the tide flows for some distance. The value of the property on its banks must be enhanced by excluding the water from the marsh, and the health of the inhabitants probably improved. Measures calculated to produce these objects, provided they do not come into collision with the powers of the general government, are undoubtedly within those which are reserved to the States. But the measure authorized by this act stops a navigable creek, and must be supposed to abridge the rights of those who have been accustomed to use it. But this abridgement, unless it comes in conflict with the Constitution or a law of the United States, is an affair between the government of Delaware and its citizens, of which this court. can take no cognizance.

The counsel for the plaintiffs in error insist that it comes in conflict with the power of the United States "to regulate commerce with foreign nations and among the several States."

If Congress had passed an act which bore upon the case-any act in execution of the power to regulate commerce, the object of which was to control State legislation over those small navigable creeks into which the tide flows, and which abound throughout the lower country of the middle and southern States-we should feel not much difficulty in saying that a State law coming in conflict with such an act would be void. But Congress has passed no such act. The repugnancy of the law of Delaware to the Constitution is placed entirely on its repugnancy to the power to regulate commerce with foreign nations and among the several States; a power which has not been so exercised as to affect the question.

We do not think that the act empowering the Blackbird Creek Marsh Company to place a dam across the creek, can, under all the circumstances of the case, be considered as repugnant to the power to regulate commerce in its dormant state, or as being in conflict with any law passed on the subject.