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CHAPTER VIII

INTERSTATE RELATIONS; THE COMITY CLAUSE

Privileges and immunities

Article IV, § 2 of the Constitution declares that "the citizens of each State shall be entitled to all privileges and immunities of citizens in the several States." This provision has for its general aim the prevention of arbitrary and vexatious discriminations by the several States in favor of their own citizens and against the citizens of other States. "It was undoubtedly the object of the clause in question," say the Supreme Court in Paul v. Virginia,1 "to place the citizens of each State upon the same footing with citizens of other States, as far as the advantages resulting from citizenship in those States are concerned. It relieves them from the disabilities of alienage in other States; it inhibits discriminating legislation against them by other States; it gives them the right of free ingress in other States, and egress from them; it insures to them in other States the same freedom possessed by the citizens of those States in the acquisition and enjoyment of property and in the pursuit of happiness; and it secures to them in other States the equal protection of their laws. It has been justly said that no provision in the Constitution has tended so strongly to constitute the citizens of the United States one people as this. Indeed, without some provision of the kind, removing from the citizens of each State the disabilities

18 Wall. 168; 19 L. ed. 357.

of alienage in the other, and giving them equality of privileges with citizens of those States, the Republic would have constituted little more than a league of States; it would not have constituted the Union which now exists." 2

Political privileges

The interstate comity clause of the Federal Constitution does not compel the several States to grant to resident citizens of the other States immediately upon their entrance into the State the political privileges extended to their own citizens. This the Supreme Court has held from the very beginning and has recently reaffirmed in the case of Blake v. McClung.3

Finally, it is to be said, the several States may impose upon non-residents such special limitations and obligations as are, in aim and effect, not discriminative but reasonably necessary for the protection of their own citizens from fraud, disease or injury of any sort. Thus, as an example, though the citizens of other States may not be forbidden to sue in the courts of the State, they may be required to give bonds for costs not exacted of residents.4

In McCready v. Virginia 5 the important limitation of the clause was established that a citizen of one State is not, of constitutional right, entitled to share upon equal terms with the citizens of another State those proprietary interests which may be said to belong generally to that

2 The courts have never attempted a complete list of the privileges and immunities guaranteed by this clause, but for partial enumerations see Corfield v. Coryell, 4 Wash. C. C. 371; and Ward v. Maryland, 12 Wall. 418, 20 L. ed. 449. See also two articles by W. J. Meyers in Michigan Law Review, I, 286, 364, entitled "The Privileges and Immunities of Citizens in the Several States."

3 172 U. S. 239; 19 Sup. Ct. Rep. 165; 43 L. ed. 432.

4 Chemung Canal Bank v. Lowery, 93 U. S. 72; 23 L. ed. 806. 594 U. S. 391; 24 L. ed. 248.

State as such. This case involved the right of cultivating oysters on beds of the tide waters of the State. The court in its opinion say: "We think we may safely hold that the citizens of one State are not invested by this clause of the Constitution with any interest in the common property of the citizens of another State."

Privileges of one State not carried into other States

The comity clause does not entitle a citizen within his own State to privileges and immunities which may be granted by other States to their citizens. In other words, it does not require that when a right is granted by any one of the States of the Union to its citizens, it thereby becomes a right which all the other States must grant to their citizens.

It also scarcely needs argument that under this special privileges clause a citizen of one State residing, or having legal interests in another State, may not lay claim to privileges and immunities which his own State grants him, but which the other State does not grant to its citizens.6

Corporations not citizens within the meaning of the comity clause

In Paul v. Virginia the doctrine, never since questioned, was laid down that a corporation is not a citizen within the meaning of the term as used in the comity clause. Inasmuch as a corporation is the mere creation of local law, the court declare that it can have no legal existence, or right to do business, beyond the limits of the sovereignty. by which it was created. In other words, the interstate comity clause of the Federal Constitution does not necessitate the recognition by the several States of corporations

Paul v. Virginia, 8 Wall. 168; 19 L. ed. 357.

created by any of the other States. "Having no absolute right of recognition in other States," the court say, "but depending for such recognition and enforcement of its contracts upon their assent, it follows, as a matter of course, that such assent may be granted upon such terms and conditions as those States may think proper to impose. They may exclude the foreign corporation entirely, they may restrict its business to particular localities, or they may exact such securities for the performance of its contracts with their citizens as in their judgment will best promote the public interest. The whole matter rests in their discretion."

The principle of State omnipotence when dealing with the corporations of other States is, however, limited in three very important respects. In so far as such corporations are engaged in the conduct of interstate commerce they may not be controlled, the regulation of this subject being exclusively a Federal concern; they may not be deprived of property without due process of law or denied the equal protection of the laws; and the obligations of contracts entered into by them may not be impaired."

7 See, for example, Blake v. McClung, 172 U. S. 239; 19 Sup. Ct. Rep. 165; 43 L. ed. 432, and authorities there cited. Also, Sully v. Am. National Bank, 178 U. S. 289; 20 Sup. Ct. Rep. 935; 44 L. ed.

1072; Waters-Pierce Oil Co. v. Texas, 177 U. S. 28; 20 Sup. Ct. Rep. 518; 44 L. ed. 657; W. U. Tel. Co. v. Kansas, 216 U. S. 1; 30 Sup. Ct. Rep. 190; 54 L. ed. 355; Pullman Co. v. Kansas, 216 U. S. 56; 30 Sup. Ct. Rep. 232; 54 L. ed. 56.

CHAPTER IX

INTERSTATE RELATIONS: EXTRADITION

Interstate extradition

The Constitution provides that "a person charged in any State with treason, felony or other crime, who shall flee from justice, and be found in another State, shall on demand of the executive authority of the State from which he has fled, be delivered up to be removed to the State having jurisdiction of the crime" (Art. IV, § 2, cl. 2).

In the case of Kentucky v. Dennison,1 decided by the Supreme Court in 1860, the respective powers and duties of the State and Federal Governments in respect of the extradition of criminals came up for adjudication. Congress had passed a law declaring that, upon request from the State from which the fugitive has fled, "it shall be the duty of the executive authority of the State" to cause the fugitive to be seized and delivered to the agent of the demanding State. Dennison, the governor of Ohio, refused the request of the Commonwealth of Kentucky to surrender a fugitive from her borders. Thereupon a mandamus was asked from the Federal court to compel him to do so. This writ, the Supreme Court in a unanimous opinion refused to issue, the position being taken that the obligation imposed upon the governors of the State by the extradition clause is not one which may be enforced by Federal authority.

There have since been a number of occasions upon which

1 24 How. 66; 16 L. ed. 717.

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