poration is not included in the term citizen in this provision, and no corporation therefore can claim under this provision the right to exercise a privilege in one State to which it is entitled in another.

§ 126. Equal protection of the laws.

19 37

The Fourteenth Amendment to the Constitution of the United States provides that no State "shall deny to any person within its jurisdiction the equal protection of the laws." Under this Amendment a corporation is a "person.' But until the corporation comes within the jurisdiction of a State the provision does not apply; and so long as the corporation has not yet received permission from the State to act within its borders, it has not come within its jurisdiction. The imposition of any condition whatsoever upon a corporation desiring to enter the State is therefore not within the constitutional limitation.38 "The State is not prohibited from discriminating in the privileges it may grant to foreign corporations as a condition of their doing business or hiring offices within its limits, provided always such discrimination does not interfere with any transaction by such corporations of interstate or foreign commerce. It is not every corporation, lawful in the State of its creation, that other States may be willing to admit within their jurisdiction or consent that it have offices in them; such, for example, as a corporation for lotteries. And even where the business of a foreign corporation is not unlawful in other States the latter may wish to limit the number of such corporations, or subject their business to such control as would be in accordance with the policy governing domestic corporations of similar character. The States may, therefore, require for the admission within their limits of the corporations of other States, or of any number of them, such conditions as they may choose, without acting

37 Ante, § 81.

38 Dugger v. Mechanics' & T. I. Co., 95 Tenn. 245, 32 S. W. 5, 28 L. R. A.

796.

in conflict with the concluding provision of the first section of the Fourteenth Amendment. . . 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." 39

So, where a foreign insurance company was doing business in New York under a license renewable by the law of New York every year, it was held to be within the power of New York to impose new conditions. For the corporation was within the jurisdiction of New York only for a year; at the end of the year the corporation ceased to have the power to act within the State, and, therefore, to be within the jurisdiction, until it complied with the new conditions.40 "It could not be of right within such jurisdiction, until it should receive the consent of the State to its entrance therein under the new provisions, and such consent could not be given until the tax, as a license fee for the future, should be paid." 41

The requirement of "equal protection of the laws" entitles a foreign corporation, after it has been admitted to the State and while abiding by the conditions of its admission, to as favorable treatment under the laws as is granted to a domestic corporation. "The inhibition ... was designed to prevent any person or class of persons from being singled out as a special subject for discriminating and hostile legislation." 42 Therefore, it does not prevent the operation of the police power of the State, provided it is exercised without discrimina

39 Field, J., in Pembina C. S. Mining & Milling Co. v. Pennsylvania, 125 U. S. 181, 189, 31 L. ed. 650.

40 Phila. Fire Assoc. v. New York, 119 U. S. 110, 30 L. ed. 342. Acc. Manchester Fire Ins. Co. v. Herriott, 91 Fed. 711.

41 Blatchford, J., in Phila. Fire Assoc. v. New York, 119 U. S. 110, 120, 30 L. ed. 342.

42 Field, J., in Pembina C. S. Mining & Milling Co. v. Pennsylvania, 125 U. S. 181, 188, 31 L. ed. 650.

45

tion, and extends equally to domestic and foreign corporations; 43 and a provision requiring a foreign corporation to accept service made upon an agent acting for it within the State is not unconstitutional.44 But where a statute provides for one mode of service for residents and another for non-residents, it is unconstitutional as applied to foreign corporations; so when it requires different formalities to be observed by agents of corporations organized under the laws of another State, not because of non-residence but because of such organization.46 In like manner, a law imposing a tax on manufacturing corporations whose business is not wholly conducted within the State does not deny equal protection of the laws since it applies both to foreign and domestic corporations.47 When, however, a foreign corporation holds a mortgage on land within the State which it has the right to foreclose, a denial of its right to purchase because it had not complied with State laws, would be a denial of equal protection of the law within the amendment.48

8127: Taking property.

The Fourteenth Amendment declares that "no state shall deprive any person of life, liberty, or property, without due process of law." This clause prevents a State from passing any laws looking toward virtual confiscation of the property of foreign corporations within its limits. On this ground the Federal court in Iowa enjoined the railway commissioners of that State from putting in force the schedule of rates fixed by the legislature. Brewer, J., said that the State might

43 Pembina C. S. Mining & M. Co. v. Pennsylvania, 125 U. S. 181, 31 L. ed. 650; Minneapolis & S. L. Ry. v. Beckwith, 129 U. S. 26, 32 L. ed. 585; Manchester Fire Ins. Co. v. Herriott, 91 Fed. 711.

44 Shafer Iron Co. v. Stone, 88 Mich. 464, 50 N. W. 389.

45 Caldwell v. Armour, 1 Pen. (Del.) 545, 43 Atl. 517. ?

46 State v. Cadigan, 73 Vt. 245, 50 Atl. 1079, 87 A. S. R. 714, 57 L. R. A. 666.

47 New York v. Roberts, 171 U. S. 658, 43 L. ed. 323.

48 Black v. Caldwell, 83 Fed. 880.

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

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.

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

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