ARTICLE VI.-RETALIATORY LEGISLATION. SECTION. 126. Validity - Not Unconstitutional as Delegating Legislative Power. 127. Same-Nor as Denying Equal Protection of the Laws. 128. Same-Retaliatory Taxation Laws not Invalid for Want of Uniformity and Equality. 129. Same-Not to be regarded as Taxation at all. 130. Construction-When Retaliatory Provisions become Operative. 131. Same-Strict Construction-General Rule-When the Effect of the Foreign Statute is Doubtful. 132. Same-In New York-Distinction between "Obligations" and "Prohibitions." 134. Same "Substantially the same Basis and Limitations." 135. Same "Taxes, Fines, Penalties, Deposits. Statements, Obligations and Requirements." 136. Same "Same Obligations or Prohibitions." 137. Same-When the Foreign Restrictions Coincide with Charter Limitations. § 126. Validity-Not Unconstitutional as Delegating Legislative Power.-In many, perhaps a majority of the States, the idea that the comity due from one State to another is not required to be more than equal and reciprocal has found expression in socalled "retaliatory laws," having as an incidental and ultimate purpose the better protection of domestic corporations in their transaction of affairs abroad. In these statutes the State, in admitting foreign companies to do business within its borders, measures its exactions by the taxes, license fees, etc., imposed upon its own companies in the domicile of the foreign corporation. The validity of such laws has been vigorously attacked upon constitutional grounds. Without questioning the power of the State to prescribe terms upon which a foreign corporation may do business within its jurisdiction, it is claimed that such a statute in effect delegates the exercise of legislative power upon that subject to the respective legislatures of the various corporate domiciles of the foreign companies, which undertake to do business in its territory. Says the Alabama court, in stating this objection: "This section of the Code' authorizes, in effect, the legislature of Mississippi, speaking through its statutes, which are the subject of extrinsic proof and not of judicial knowledge in our courts, to fix by law the amount which the treasurer of Alabama shall demand of appellants, as a license tax, to do an insurance business in this State. If the law-making power of that State should, in a day, modify, amend or repeal their revenue laws, ipso facto, such legislalative action would modify, amend, or repeal the legal operation of our laws, provided the principle contended for by appellant's counsel is a sound and prevailing one. This cannot be, for it would be confiding to a foreign jurisdiction that legislative discretion which the General Assembly of Alabama are constitutionally bound to exercise themselves, and which they cannot delegate or commit to another. They are not permitted to 'substitute the judgment, wisdom and patriotism of any other body for those to which alone the people have seen fit to 1 Code Ala., 1876, § 1440. confide this sovereign trust.' If such a statute is indeed a delegation of legislative powers it is too plain for argument that it is invalid. But the better view on principle, and it is supported by the weight of authority, is that the operation of such a law is made to depend upon a future contingency; that the provision is the law only of the State enacting it; and that the mere fact that the contingency is created by the legislative action of the foreign State, and that the State officers are referred to the laws of that State to determine whether the contingency has happened, cannot affect its validity." Say the Supreme Court of Illinois: "Who has ever doubted the validity of that portion of our statute which declares that deeds executed without the State may be acknowledged before any one authorized to take such acknowledgments, by the laws of the State or country in which they are made? Or who has ever questioned the constitutionality of that portion of our statute which makes all wills and testaments made in a foreign State or country valid and binding here, if executed and proven agreeably to the laws and usages of such foreign State or country, although not in accordance with our general law on the subject? And yet in either of these cases there is just as much reason for claiming that our legislature has abdicated its legislative func 1 Clark v. Mobile, 67 Ala. 217, 10 Ins. L. J. 357. See to the same effect two anonymous Indiana nisi prius cases reported in a note to the above. 10 Ins. L. J. 361. The Supreme Court of that State, however, took a different view. State v. Ins. Co., 115 Ind. 257, 17 N. E. Rep. 574, 20 Am. & Eng. Corp. Cas. 589. 2 Phoenix Ins. Co. v. Welch, 29 Kan. 672; People v. Fire Association, 92 N. Y. 311; State v. Ins. Co., 115 Ind. 257, 17 N. E. Rep. 574, 20 Am. & Eng. Corp. Cas. 589; Blackmer v. Royal Ins. Co., 115 Ind. 291, 17 N. E. Rep. 580; Home Ins. Co. v. Swigert, 104 Ill. 653. See also Haverhill Ins. Co. v. Prescott, 42 N. H. 547. tions, and attempted to delegate its constitutional and legitimate powers to a foreign State or country, as there is that it has done or attempted to do so in the present case." A cor It derives its corporate come § 127. Same-Nor as Denying Equal Protection of the Laws.-There is even less ground for the objection, sometimes made, that such laws violate the provision of the Federal constitution, that no State shall "deny to any person within its jurisdiction the equal protection of the laws." Such a contention is manifestly untenable. poration is not a "person." life and existence from the laws of the State of its origin. If of a foreign origin, it can within the jurisdiction and transact business within the territory of the State only by legislative permission, express or implied. The right of the State to exclude a foreign corporation is perfectly well settled. When the State does not prohibit, comity implies a consent. But the very act here in question is a prohibition; it prescribes the conditions upon which such organizations may be admitted, to which the latter by coming in must be taken to assent. They have no constitutional right, as the citizen of another State has, to come into the jurisdiction, and cannot dispute the conditions under which alone it has been admitted." 1 Home Ins. Co. v. Swigert, 104 Ill. 653. Upon the general point that a valid law may be dependent, in its operation, upon the shifting character of foreign laws, rules and edicts, see State v. Parker, 26 Vt. 357; Bull v. Read, 13 Gratt. 390; Cargo of Brig Aurora v. United States, 7 Cranch, 386; Williams v. Bank of Michigan, 7 Wend. 540; Bank v. Village of Rome, 18 N. Y. 38, distinguishing Barto v. Himrod, 8 N. Y. 483. 2 Const. U. S. art. 14, § 3 Ante. § 3. People v. Fire Ass'n, 92 N. Y. 311, 324. § 128. Same-Retaliatory Taxation Laws not Invalid for Want of Uniformity and Equality.-Nor can such retaliatory legislation be regarded as in conflict with the principle of uniformity and equality in taxation required by the constitutions of many of the States, whether the charge upon the company is to be regarded in the nature of taxation or of a license. The effect of such laws is to classify the foreign companies by the States from which they come, and, even if they are considered as levying a tax, such classification for purposes of taxation being just and fair, there can be no constitutional objection to it.' § 129. Same-Not to be Regarded as Taxation at all. But the better view is that the burden imposed by these statutes is not to be regarded as a tax at all, but rather in the nature of a license fee.' Thus, in New York, it was held that such a law did not come fairly within the terms of a constitutional provision that "any law which imposes, continues or revives a tax shall distinctly state the tax and the object to which it is to be applied, and it shall not be sufficient to refer to any other law to fix such tax or object," and was not invalid as in violation of it. And in Georgia, such legislation was held to have no connection with the general tax laws, and not repealed by general laws on the subject of taxation, subsequently passed." 1 Phoenix Ins. Co. v. Welch, 29 Kan. 672; Home Ins. Co. v. Swigert, 104 Ill. 653; State ex rel. v. Insurance Co., 115 Ind. 257, 17 N. E. Rep. 574, 20 Am. & Eng. Corp. Cas. 589. Contra: Clark v. Mobile, 62 Ala. 217, 10 Ins. L. J. 357. 2 Phoenix Ins. Co. v. Welch, 29 Kan. 672. People v. Fire Ass'n, 92 N. Y. 311, 327. |