§ 35. Same Retaliatory Legislation.-On the same reasoning, retaliatory legislation, whereby the State imposes upon the foreign company seeking to do business in its jurisdiction, burdens which are similar in kind and amount to those to which its own corporations are subject in the State of the foreign company's creation, has been held valid.'

§ 36. "Due Process of Law."-Since the power of foreign corporations to do business within the State is purely ex comitate, statutory provisions, either limiting this right or decreeing its forfeiture for failure to comply with prescribed regulations, cannot be regarded as depriving them of their property "without due process of law.' Thus, a statute prohibiting any foreign insurance company from entering into any contract with any other such company or its agents, "the object or effect of which is to prevent open and free competition," and requiring it, as a condition precedent of the issue of a certificate of authority to do business in the State, to file with the insurance commissioner its undertaking not to do so, and making it the duty of the commissioner to revoke such certificate upon the violation of such undertaking, was held not to infringe the constitutional provision. So, a State statute requiring the agent of a foreign fire insurance company, whenever a loss shall occur, to retain in his possession all moneys of the company until the loss is adjusted and paid, has been held not to be invalid as a taking of property without due process of law.3

2

Humes, 115 U. S. 512; Yick Wo v. Hopkins, 118 U. S. 356; Hayes v. Missouri, 120 U. S. 68.

1 Philadelphia Fire Ass'n v. New York, 119 U. S. 110.

2 Hartford Fire Ins. Co. v. Raymond, 70 Mich. 485, 38 N. W. Rep. 474. 3 Phoenix Ins. Co. v. Burdett, 112 Ind. 204, 13 N. E. Rep. 705.

A provision in a State constitution, that "all the courts shall be public, and every person for any injury that he may receive in his lands, goods, person or reputation, shall have a remedy by due course of law and justice," is not infringed by a statute "is limiting the right of non-residents or of a foreign corporation to maintain an action against another foreign corporation, to causes of action arising within the State.1

§ 37. Obligation of Contracts.-A statute limiting the right of non-residents to bring suits against a foreign corporation in the local courts cannot be regarded as impairing the obligation of the company's contracts with its non-resident creditors, and enabling it to escape all liability to them by transferring its assets to the State."

Taxation.-This is

The

§ 38. Interstate Commerce not the place for a discussion of the control of interstate commerce, and we have no occasion to examine the reasoning or follow the steps by which the Supreme Court of the United States has reached the view now held by it on that subject. result of its decisions may be stated to be that no State has the right to lay a tax on interstate commerce in any form, whether by way of duties laid on transportation of the subjects of that commerce, or on the receipts derived from that transportation, or on the occupation or business of carrying it on ; and the reason is, that such taxation is a burden on that commerce, and amounts to a regulation of it, which belongs solely to Congress. This ruling ap

3

1 Central R. Co. v. Georgia Construction, etc. Co., 32 S. C. 319.

2 Central R. Co. v. Georgia Construction, etc. Co., 32 S. C. 319.

3 Case of State Freight Tax, 15 Wall. 232; Pensacola Tel. Co. v.

plies equally, of course, to foreign corporations as to other instrumentalities engaged in such commerce.

§ 39. Same-Taxation of Business Within the State. But the mere fact that the business, in which the foreign company is engaged, consists to a great degree of interstate commerce, does not affect the power of the State to regulate and tax that portion of it which is conducted exclusively within its jurisdiction.' In a case where the tax was imposed upon the privilege of carrying on the business of transportation as an express company without distinguishing between its interstate business and that carried on exclusively within the State, the court enjoined the collection of the tax until a separation could be made between the interstate business and the purely local business, if such separation should be possible.'

§ 40. Same-Taxation of Property Within the State. The exemption of interstate and foreign commerce from State regulation does not prevent

Western Union Tel. Co., 96 U. S. 1; Mobile v. Kimball, 102 U. S. 691; Western Union Tel. Co. v. Texas, 105 U. S. 460; Moran v. New Orleans, 112 U. S. 69; Gloucester Ferry Co. v. Pennsylvania, 114 U. S. 196; Brown v. Houston, 114 U. S. 622; Walling v. Michigan, 116 U. S. 446; Picard v. Pullman So. Car. Co., 117 U. S. 34, 24 Am. & Eng. Ry. Cas. 511; Wabash Ry. Co. v. Illinois, 118 U. S. 557, 26 Am. & Eng. Ry. Cas. 1; Robbins v. Shelby County Taxing Dist., 120 U. S. 489; Philadelphia, etc. S. S. Co. v. Pennsylvania, 122 U. S. 326; Western Union Tel. Co. v. Pendleton, 112 U. S. 347; Ratterman v. Western Union Tel. Co., 127 U. S. 411; Leloup v. Port of Mobile, 127 U. S. 640; Western Union Tel. Co. v. Board of Assessment, 132 U. S. 472; Leisy v. Hardin, 135 U. S. 100; Lyng v. Michigan, 135 U. S. 161; Pullman's Car Co. v. Pennsylvania, 141 U. S. 18; Crutcher v. Kentucky, 141 U. S. 47; St. Louis v. Western Union Tel. Co., 39 Fed. Rep. 59. See, also, Erie Ry. Co. v. State, 31 N. J. Eq. 531, 86 Am. Dec. 226; State v. American Express Co., 7 Biss. 227. Contra: Western Union Tel. Co. v. Mayer, 28 Ohio St. 521; Woodward v. Commonwealth (Ky.), 7 S. W. Rep. 613, not reported officially.

1 Pacific Express Co. v. Seibert, 142 U. S. 339, affirming 44 Fed. Rep. 310; Maine v. Grand Trunk Ry. Co., 142 U. S. 217.

2 United States Express Co. v. Hemmingway, 39 Fed. Rep. 60.

the State from taxing the property, of those engaged in such commerce, located within the State as the property of other citizens is taxed.' Thus, in Western Union Tel. Co. v. Massachusetts,' the court sustained a tax imposed upon the Western Union Telegraph Company on account of the property owned and used by it within that State, the value of which is to be ascertained by comparing the length of its lines within the State with the length of the entire lines.

§ 41. Same "Office License."-Where a company incorporated under the laws of Colorado for the purpose of doing a general mining and milling business in that State, had an office in Philadelphia "for the use of its officers, stockholders, agents, and employees," a tax levied on the corporation for an "office license" was held not to infringe the commercial clause of the constitution because it imposed no prohibition upon the transportation into the State of the products of the corporation or upon their sale in the State, but simply exacted a license from the corporation for its office in the commonwealth. Such a case is distinguished from the exaction of a license for the privilege of doing business, whether levied upon the company itself, as, for instance, a license tax upon telegraph companies," or upon the company's agent, as where a ticket agent of a railroad company operating a road between New York and Chicago was required to pay

1 Railroad Co. v. Peniston, 18 Wall. 5; Marye v. Baltimore, etc. R. Co., 127 U. S. 117. Compare Telegraph Co. v. Texas, 105 U. S. 460. 2 125 U. S. 530, followed in Massachusetts v. Western Union Tel. Co., 141 U. S. 40.

3 Pembina, etc. Co. v. Pennsylvania, 125 U. S. 181.

4 Leloup v. Port of Mobile, 127 U. S. 640.

a municipal license for the privilege of doing business in San Francisco,' both of which have been held void. It must be admitted, however, that the ground of distinction is not clear. It would seem that a tax upon the privilege of having an office, a place of business in the State could, in view of the practical necessity of such a location, be made a tax upon the privilege of doing business.

3

2

§ 42. Same-Limitations upon Corporate Powers. -It has been said that a State cannot, in prescribing conditions under which a foreign company may do business within its jurisdiction, impose limitations on its power to make contracts for carrying on commerce between the States, for that would be an invasion of the exclusive right of Congress. Thus the provision of the Alabama constitution prohibiting foreign corporations from doing business in the State without having an agent and known place of business, has been held not to apply to a sale, by a foreign company to a merchant within the State, of goods to be shipped into the State, since that would amount to a regulation of interstate commerce.* § 43. Same — Other Regulations.-Upon examination of the cases it will be found that the State legislation adjudged invalid as being a regulation of interstate commerce, imposed a tax upon some instrument or subject of commerce, or exacted a license fee from parties engaged in commercial pursuits, or created an impediment to the free navigation of public waters, or prescribed conditions in

1 McCall v. California, 136 U. S. 104, 10 Sup. Ct. Rep. 881.

2 Cooper Mfg. Co. v. Ferguson, 113 U. S. 727, 5 Sup. Ct. Rep. 739. 3 Const. Ala. 1875, art. 14, § 4.

4 Ware v. Hamilton-Brown Shoe Co., 92 Ala. 145, 9 South. Rep. 136. Compare Singer Mfg. Co. v. Hardee, 4 N. M. 175, 16 Pac. Rep. 605.