limit rates; but under pretext of controlling rates, laws virtually amounting to confiscation of property could not be passed.49 This principle would of course apply to a domestic as fully as to a foreign corporation.

§ 128. Interfering with interstate commerce.

To Congress has been given the power to regulate commerce with foreign nations and between the States. And this power is now conceded to be exclusive.50 An act of Congress is not necessary. No State, therefore, has a right to impose any terms upon foreign corporations wishing to do business within its territory, if such imposition would be a regulation of foreign or interstate commerce.51 Before attempting to solve the perplexing question of what degree of control amounts to a regulation of commerce, it may be well to consider just what corporations are engaged in interstate or foreign com

merce.

§ 129. Corporations engaged in interstate commerce: transportation.

The most obvious example of a corporation engaged in interstate commerce is a corporation actually engaged in the transportation of persons or merchandise from State to State;

49 Chicago & N. W. Ry. v. Dey, 35 Fed. 866, 1 L. R. A. 744. "It is said that complainant is a foreign corporation, permitted simply as an act of grace to do business in this State, and that the legislature may therefore impose such terms and conditions, upon its doing business in the State, as it sees fit; that the carrier is not bound to continue in business, and, if he finds the rates imposed by the State not remunerative, may abandon the business. Whatever of force there may be in such arguments as applied to mere personal property capable of removal and use elsewhere, or in other business, it is wholly without force as against railroad corporations, so large a proportion of whose investment is in the soil and fixtures. appertaining thereto, which cannot be removed."

50 Henderson v. Mayor of New York, 92 U. S. 259, 23 L. ed. 543; Gloucester Ferry Co. v. Pa., 114 U. S. 196, 29 L. ed. 158.

51 Cooper Mfg. Co. v. Ferguson, 113 U. S. 727, 28 L. ed. 1137; Phila. Fire Assoc. v. New York, 119 U. S. 110, 120, 30 L. ed. 342; Central Stock Yards Co. v. Louisville & N. R. R. Co., 118 Fed. 113.

such as a railroad company,52 a ferry company," 53 a packet company,54 or an express company.55 The establishment by a railroad company of an office in a State into which its line. does not run was held in the State courts not to be interstate commerce in that State.56 But this was reversed in the Supreme Courts of the United States, and it is now well settled that the business of such an office is interstate commerce, and that the regulation of it is solely for Congress.57 Not only is the transportation of tangible things commerce, equally so is the transmission of intelligence. Thus telegraph companies are engaged in interstate commerce, and a State cannot control them in such a way as would amount to a regulation of commerce. An exclusive charter given by a State to one telegraph company cannot prevent a foreign telegraph company from entering the State.58 And in the same way anything used to facilitate transportation between States is an agency of interstate commerce. Thus a bridge company created to build a bridge between two States is engaged in interstate commerce, and in that function cannot be interfered with by either State.59

$130. Trade.

When a corporation of one State, by its agents, sells goods in another State to be shipped from the first State, the corporation is engaged in interstate commerce. When this question first came before the Supreme Court of the United States, only two justices placed their decision on that ground.60

52 State Freight Tax, 15 Wall. 232, 21 L. ed. 146.

53 Gloucester Ferry Co. v. Pa., 114 U. S. 196, 29 L. ed. 158.

54 New Orleans & M. Packet Co. v. James, 32 Fed. 21.

55 Pacific Exp. Co. v. Seibert, 142 U. S. 339, 35 L. ed. 1035.

56 Norfolk & W. R. R. v. Com., 114 Pa. 256, 6 Atl. 45.

57 Norfolk & W. R. R. v. Pa., 136 U. S. 114, 34 L. ed. 394; acc. McCall v. Cal., 136 U. S. 104, 34 L. ed. 391.

58 Pensacola Tel. Co. v. W. U. Tel. Co., 96 U. S. 1, 24 L. ed. 708; American U. Tel. Co. v. Western U. Tel. Co., 67 Ala. 26, 42 A. R. 90.

50 Stockton v. Baltimore & N. Y. R. R., 32 Fed. 9.

60 Cooper Mfg. Co. v. Ferguson, 113 U. S. 727, 28 L. ed. 1137.

The State courts have almost universally held that such a transaction is interstate commerce,61 and the Supreme Court of the United States has recently so declared.62 Therefore, if an agent of a foreign corporation which has not complied with the law signs a contract which is not to be binding until approved at the home office, a statute of the State where the contract is signed which purports to make it invalid is void as a restraint on interstate commerce.63

It would seem also that the transaction is one of interstate commerce where a foreign manufacturing company places its products in the hands of local merchants to be sold on commission.64 And in Arkansas it has been held, by a divided court, that the establishment of an agency for the sale of sewing-machines manufactured in another State by a corporation of that State, is interstate commerce.65 Loaning money by a foreign corporation is, however, not foreign commerce.66

§ 131. Manufacture.

A corporation engaged in manufacturing is not engaged in commerce, though the article manufactured may be the subject of commerce. Accordingly, a State statute forbidding the manufacture is not unconstitutional, and the article may

61 Ware v. Hamilton-Brown Shoe Co., 92 Ala. 145; Cook v. Rome Brick Co., 98 Ala. 409; Kindel v. B. & P. Lithographing Co., 19 Colo. 312, 35 Pac. 538, 24 L. R. A. 311; Coit & Co. v. Sutton, 102 Mich. 324, 60 N. W. 690, 25 L. R. A. 819; People v. Roberts, 50 N. Y. S. 355, 27 App. Div. 455; People v. Roberts, 51 N. Y. S. 866, 30 App. Div. 150; People v. Barker, 52 N. Y. S. 921, 31 App. Div. 263; Bateman v. Western Star Milling Co., 1 Tex. Civ. App. 90, 20 S. W. 931; Lasater v. Purcell Mill & Elev. Co., (Tex. Civ. App.) 54 S. W. 425; Pasteur Vaccine Co. v. Burkey, 22 Tex. Civ. App. 232, 54 S. W. 804. See People v. Wemple, 131 N. Y. 64, 29 N. E. 1002, 27 A. S. R. 542.

62 Caldwell v. North Carolina, 187 U. S. 622, 47 L. ed. 336.

63 Holder v. Aultman, 169 U. S. 81, 42 L. ed. 669.

64 Allen v. Tyson-Jones Buggy Co., 91 Tex. 22, 40 S. W. 393; Hallwood

C. R. Co. v. Berry, (Tex. Civ. App.) 80 S. W. 857.

65 Gunn v. White Sewing Machine Co., 57 Ark. 24, 20 S. W. 591, 38 A. S. R. 223, 18 L. R. A. 206.

66 Nelms v. Edinburg Amer. L. M. Co., 92 Ala. 157, 9 So. 141.

not be manufactured even with intent to export it.67 But if instead of forbidding the manufacture wholly, the statute should only forbid it with intent to export the article, such legislation might perhaps be invalid. The Supreme Court of Indiana declared unconstitutional a statute forbidding the extracting of natural gas with intent to transport it beyond the limits of the State.68

§ 132. Insurance.

No corporations have been subjected to more exacting statutory regulations than those engaged in the various forms of insurance. The conditions imposed upon these by statutes have often been very hard. Of course if this business were interstate commerce, such conditions would usually be invalid. Accordingly a very strenuous effort has been made to have insurance business included within the protection of the constitutional provision. It was urged that at the present time the insurance business is an indispensable adjunct of all commercial intercourse. But in Paul v. Virginia it was held that the business of effecting insurance is not commerce, and therefore that regulation of the business of foreign insurance companies is not unconstitutional.69 This decision has been followed wherever the question has been raised.70

Mr. Justice Field, in delivering the opinion of the court, said: "Issuing a policy of insurance is not a transaction of commerce. The policies are simple contracts of indemnity against loss by fire, entered into between the corporation and the assured, for a consideration paid by the latter. These contracts

67 Kidd v. Pearson, 128 U. S. 1, 32 L. ed. 346.

68 State v. Ind. & Oh. Oil, Gas & Mining Co., 120 Ind. 575, 22 N. E. 778, 6 L. R. A. 579.

69 8 Wall. 168, 19 L. ed. 357.

70 Ducat v. Chicago, 10 Wall. 410, 19 L. ed. 972; Liverpool Ins. Co. v. Mass., 10 Wall. 566, 19 L. ed. 1029; Doyle v. Continental Ins. Co., 94 U. S. 535, 24 L. ed. 148; Phila. Fire Assoc. v. New York, 119 U. S. 110, 30 L. ed. 342; List v. Com., 118 Pa. 322. So of marine insurance: Hooper v. Cal., 155 U. S. 648, 39 L. ed. 297; and life insurance: New York L. Ins. Co. v. Cravens, 178 U. S. 389, 44 L. ed. 1116.

are not articles of commerce in any proper meaning of the word. They are not subjects of trade and barter offered in the market having an existence and value independent of the parties to them. They are not commodities to be shipped or forwarded from one State to another, and then put up for sale. They are like other personal contracts between parties which are completed by their signature and the transfer of the consideration. Such contracts are not interstate transactions, though the parties may be domiciled in different States." " 71

Consequently the agents of a foreign insurance company may be punished under the State ante-trust law; 72 and under a retaliatory statute a foreign insurance company may be entirely excluded from the State.73

$133. What is an unlawful interference.

If we have a corporation which is admittedly engaged in interstate or foreign commerce, it is a difficult question to determine what degree of control a State can exercise over it. The power of a State to make any conditions for foreign corporations in general is usually a deduction from the right to exclude absolutely. Since a State can do this, she can admit on any conditions she chooses. In the case of corporations engaged in interstate commerce, however, we must start from a different point. The State cannot exclude absolutely a corporation of this kind. Though a foreign telegraph company

71 In Doyle v. Ins. Co., 94 U. S. 535, 24 L. ed. 148, Bradley, J. (dissenting), said, on the other hand: "To shut these institutions out of neighboring States would not only cripple their energies, but would deprive the people of those States of the benefits of their enterprize. The business of insurance, particularly, can only be carried on with entire safety by scattering the risks over large areas of territory, so as to secure the benefits of the most extended average. The needs of the country require that corporations-at least those of a commercial or financial character-should be able to transact business in different States."

72 State v. Phipps, 50 Kan. 609, 31 Pac. 1097, 18 L. R. A. 657, 34 A. S. R. 152.

73 Talbott v. Fidelity &c. Co., 74 Md. 536, 22 Atl. 395, 13 L. R. A. 584.