delivered the opinion of the court.
This writ оf error brings up for review a final judgment of the Supreme Court of Tennessee sustaining the validity of certain provisions of a statute of that State passed March 19, 1877, c. 81.
The chief object of the statute was declared to be to secure the development of the mineral resources of the State and to facilitate the introduction of foreign capital. § 7.
It provides, among other things, that “corporations chartered or organized under the laws of other States or countries, for the purpose of mining ores or coals, or of quarrying stones
The second section provides for the filing in the office of the Secretary of State by “ each and every corporation created or organized under or by virtue of any government other than that of this State, of the character named in the first section of this act, desiring to carry on its business ” in the State, of a copy of its charter or articles of association, and the recording of an abstract of the same in the office of the register of each county in which the corporation proposes to carry on its business or to acquire any lands. § 2.
The third section declares that “ such corporations shall be deemed and taken to be corporations of this State, and shall be subject to the jurisdictions of the courts of this State, and may sue and be sued therein in the mode and manner that is, or may be, by law directed in the case of corporations created or organized under the laws of this State.” § 3.
The fifth section provides:
“ § 5. That the corporations, and the property of all corporations coming under the provisions of this act, shall be liable for all the debts, liabilities and engagements of the said corporations, to be enforced in the manner provided by law, for the application of the property of natural persons to the pаyment of their debts, engagements and contracts. Nevertheless, creditors who may be residents of this State shall have a,. priority in the distribution of assets, or subjection of the same, or any part thereof, to the payment of debts over all simplecontract creditors, being residents of any other country or countries, and also over mortgage or judgment creditors, for all debts, engagements and contracts which were made or owing by the said corporations previous to the filing and registration of such valid mortgages, or the rendition of such valid judgments. But all such mortgages and judgments shall be valid, and shall constitute a prior lien on the property on which they are or may be charged as against all debts which may be incurred subsequent to the date of their registration or rendition. The said corporations shall be liable to taxation in all respects the same as natural persons resident in this State, and the property of its citizens is or may be liable to taxation, but to no higher taxation, nor to any other mode of valuation, for the purpose of taxation; and the said corporations shall be entitled to all such exemptions from taxation which are now or may be hereafter granted to citizens or corporations for the purpose of encouraging manufacturers in this State, or otherwise.” Acts of Tennessee 1877, p. 44.
The case made by the record is substantially as follows:
The Embreeville Freehold Land, Iron and Railway Company, Limitеd — to be hereafter called the Embreeville Company — was a corporation organized under the laws of Great Britain and Ireland for mining and manufacturing purposes. In 1890 it registered its charter under the provisions of the above statute, and established a manager’s office in Tennessee. It purchased property and did a mining and manufacturing business there, transacting its affairs in this country at and from its Tennessee office.
On the 20th day of June, 1893, C. M. McOlung & Co. and others filed an original general creditors’ bill in the Chancery Court of Washington County, Tennessee, against this company and others, alleging its insolvency and default in meeting and discharging its current obligations; charging that it had made a conveyance in trust of certain personal property in fraud of the rights of its other creditors, and asking the appointment of a receiver and the administration of its affairs as an insolvent corporation. The court took jurisdiction of the corporation, sustained the bill as a general creditors’ bill, appointed
No question is made in respect to the amount due to any one of the creditors whose claims were presented.
The- company maintained its home office in London, its managing director resided there, and after this suit was instituted liquidation under the Companies’ Acts of Great Britain Avas there ordered and begun.
There Avere holders of debentures executed by the British company whose claims were not specifically adjudicated in the decree beloAv. The original debenture issue amounted to $500,000, and another issue, subsequent in time, and in respect of Avhich priority in right Avas claimed, amounted to $125,000. All the holders of those issues are non-residents of Tennessee and of the United States. There was also a general trade indebtedness aggregating about' $90,000 due by the company to residents of ■ Great Britain. Those claims were specifically adjudicated by the decree.
Among the creditors of the company at the time this suit Avas instituted Avere the plaintiffs in error, namely: C. G. Blake, Avhose residence and place of business Avas in Ohio; Eogers, Brown & Company, the members of which also resided in Ohio and carried on business in that State; and the Hull Coal & Coke Company, a corporation of Virginia. In the intervening petitions filed by those creditors it Avas averred that the plaintiffs in the general creditor’s bill, residents of Tennessee, claimed priority of right in the distribution of the assets of the insolvent corporation over other сreditors of the corporation “citizens of the United States, but not of the State of Tennessee; ” and that the said statute Avas unconstitutional so far as it gave preferences and benefits to the plaintiffs or other citizens of Tennessee over the petitioners or other citizens of the United States.
By the final decree of the Chancery Court of "Washington County, it was, among other things, adjudged that the act of 1877 was constitutional; that all of the creditors of the Embreeville Company residing in Tennessee were entitled to
priority
Upon appeal to the Chancery Court of Appeals the decree of the Chancery Court was reversed in certain particulars. In the findings of the Chancery Court of Appeals it was stated that the Chancery Court of Washington County adjudged, among othеr things, that “under the act of 1877 (which was adjudged constitutional) all the creditors of said Embreeville Company residing in Tennessee are entitled to priority of satisfaction out of the assets of the Embreeville Company (after the payment out of the proceeds of the real estate of the claim of the Pittsburgh Iron & Steel Engineering Co.) as against the other creditors of said company who are non-residents and citizens of other States of the United States or other countries; that the other creditors of the Embreeville Company who are
citizens of other States of the United States,
and who contracted Avith the said Embreeville Company as located and doing business in the State of Tennessee, are entitled to share ratably in the assets of the defendant Embreeville Company being administered in this cause after the payment of the Pittsburgh Iron & Steel Engineering Company and the Tennessee creditors (except the coke stopped
in transitu).”
And the decree in the Chancery Court of Appeals contained, among other provisions, the following: “ That all of the holders and owners of the debenture bonds of the company are simple contract creditors of said company, and stand upon the same footing in reference to the distribution of the assets of the company as all other of its сreditors residing out of the State of Tennessee;” and that “the portion of the chancellor’s decree giving priority of payment to such of the creditors of
The cause was carried to the Supreme Court of Tennessee, and so far as the plaintiffs in error are concerned was heard in that court upon appeal from the Chancery Court of Appeals, as well as upon writs of error to the Chancery Court.
It was adjudged by the Supreme Court of the State that the act of March 19, 1877, was in all respects a valid enactment, and not in contravention of paragraph 2 of Article IY or of the Fourteenth Amendment of the Constitution of the United States, nor in contravention of any other provision of the National Constitution ; that all of the holders and owners of the debenture bonds of the Embreeville Company were •simple contract creditors of the company, and stood upon the same footing with reference to the distribution of its assets as all of its other creditors who “ reside out of the State of Tennessee,” whether they be residents of other States or of the Kingdom of Great Britain ; that all of the creditors of the Embreeville Company “ who resided in the State of Tennessee ” are entitled to priority of payment out of all of the assets of said company, both real and personal, over all of the other creditors of said company who do not reside in the State of Tennessee, whether they be residents of other States of the United States or of the Kingdom of Great Britain; that all of the creditors of the Embreeville Freehold Land, Iron & Railway Company who reside out of the State of Tennessee, whether they reside in other States of the United States or in the Kingdom of Great Britain, have the right and must share equally and ratably in the distribution of said funds of the said company after the residents of the State of Tennessee shall have been first paid in full.
We have seen that by the third section of the Tennessee statute corporations organized under the laws of other States or countries, and which complied with the provisions of the statute, Avere to be deemed and taken to be corporations of that State; and by the fifth section it is declared, in respect of the property of corporations doing business in Tennessee under the provisions of the statute, that creditors Avho are residents of that State shall have a priority in the distribution of assets, or the subjection of the same, or any part thereof, to the payment of debts, over all simple contract creditors, being residents of any other country or countries.
The suggestion is made that as the statute refers only to “ residents,” there is no occasion to consider -Avhether it is repugnant to the provision of the National Constitution relating to citizens. We cannot accede to this view. The record shoAVS that the litigation proceeded throughout upon the theory that the plaintiffs in error, Blake and the persons composing the firm of Kogers, Brown
&
Co., Avere citizens of Ohio, in Avhich State they resided, transacted business and had their offices, and that the plaintiff in error, the Hull Coal and Coke Company, was a corporation of Yirginia. The intervening petition of the individual plaintiffs in error, as Ave have seen, states that they Avere residents of Ohio, engaged in business in that State, their residence, offices and places of business being at the city of Cincinnati, and that they Avere citizens of the United States, and not citizens of Tennessee. Although these allegations might not be sufficient to show that those parties Avere citizens of Ohio within the meaning of the statute
Beyond question, a State may through judicial proceedings take possession of the assets of an insolvent foreign corporation within its limits, and distribute such assets or their proceeds among creditors according to their respective rights. But may it exclude citizens of other States from such distri
These questions are presented for our determination. Let us see how far they have been answered by the former decisions of this court.
This court has never undertaken to give any exact or comprehensive definition of the words “privileges and immunities ” in Article IY of the Constitution of the United States. Referring to this clause, Mr. Justice Curtis, speaking for the court in
Conner
v. Elliott,
One of the leading cases in which the general question has been examined is
Corfield
v. Coryell, decided by Mr. Justice Washington at the circuit. He said: “The inquiry is, what are the privileges and immunities of citizens in the several States? We feel no hesitation in confining these expressions to .those privileges and immunities which are, in their nature,
fundamental;
which belong, of right, to the citizens of all free governments, and which have, at all times, been enjoyed by the citizens of the several States which compose this Union from the time of their becoming free, independent and sov
These observations of Mr. Justice Washington were made in a case involving the validity of a statute of New Jersey ■ regulating the taking of oysters and shells on banks or beds
within
that State, and which excluded inhabitants and residents of other States from the privilege of taking or gathering clams, oysters or shells on any of the rivers, bays or waters
in
New Jersey, not wholly owned by some person residing in the State. The statute was sustained upon the ground that it only regulated the use of the common property
Upon these grounds rests the decision in
McCready
v.
Virginia, 9
In
Paul v.
Virginia,
Ward
v.
Maryland,
In the
Slaughter-house cases,
In
Cole
v.
Cunningham,
These principles have not been modified by any subsequent decision of this court.
The foundation upon which the above cases rest cannot however stand, if it be adjudged to be in the power of one State, when establishing regulations for the conduct of private business of a particular kind, to give its own citizens essential privileges connected with that business which it denies to citizens of other States. By the statute in question the British company was to be deemed and taken to be a corporation of Tennessee, with authority to carry on its business in that State. It was the right of citizens of Tennessee to deal with
It is an established rule of equity that when a corporation becomes insolvent it is so far civilly dead that its property may be administered as a trust fund for the benefit of its stockholders and creditors,
(Graham
v.
Railroad Co.,
¥e hold such discrimination against citizens of other States to be repugnant to the second section of the Fourth Article of the Constitution of the United States, although, generally speaking, the State has the poAver to prescribe the conditions upon which foreign corporations may enter its territory for purposes of business. Such a power cannot be exerted with the effect of defeating or impairing rights secured to citizens
In
Lafayette Ins. Co.
v. French,
We must not be understood as saying that a citizen of one State is entitled to enjoy in another State
every
privilege that may be given in the latter to its own citizens. There are privileges that may' be accorded by a State to its own people in which citizens of other States may not participate except in conformity to such reasonable regulations as may be established by the State. For instance, a State cannot forbid citizens of other States from suing in its courts, that right being enjoyed by its own people ; but it may require a non-resident, although a citizen of another State, to give bond for costs, although such bond be not required of a resident. Such a regulation of the internal affairs of a State cannot reasonably be characterized as hostile to the fundamental rights of citizens of other States. So, a State may, by rule uniform in its operation as to citizens of the several States, require residence within its limits for a given time before a citizen of another State who becomes a resident thereof shall exercise the right of suffrage or become eligible to office. It has never been supposed that regulations of that character materially interfered with the enjoyment by citizens of each State of the privileges and immunities secured by the Constitution to citizens of the several States. The Constitution forbids only such legislation affecting citizens of the respective States as will substantially or practically put a citizen of one State in a condition of alienage when he is within or when he removes to another State, or when asserting in another State the rights that commonly appertain to those who are part of the political community known as the People of the United States, by and
• Nor must wе be understood as saying that a State may not, by its courts, retain within its limits the assets of a foreign corporation, in order that justice may be done to its own citizens; nor, by appropriate action of its judicial tribunals, see to it that its own citizens are not unjustly discriminated against by reason of the administration in other States of the assets there of an insolvent corporation doing business within its limits. For instance, if the Embreeville Company had property in Virginia at the time of its insolvency, the Tennessee court administering its assets in that State could take into account what a Virginia creditor, seeking to participate in the distribution of the company’s assets in Tennessee, had received or would receive from the company’s assets in Virginia, and make such order touching the assets of the .company in Tennessee as 'would protect Tennessee creditors against wrongful discrimination, arising from the particular action taken in Virginia for the benefit of creditors residing in that Commonwealth.
It may be appropriate to observe that the objections to the statute of Tennessee do not necessarily embrace enactments that are found in some of the States requiring foreign insurance corporations, as a condition of their coming into the State for purpоses of business, to deposit with the state treasurer funds sufficient to secure policy holders in its midst. Legislation of that character does not present any question of discrimination against citizens forbidden by the Constitution. Insurance funds set apart in advance for the- benefit of home policy holders of a foreign insurance company doing business in the State are a trust fund of a specific kind to be administered for the exclusive benefit of certain persons. Policy holders in other States know that those particular funds are segregated from the mass of property owned by the company, and that they cannot look to them to the prejudice of those for whose special benefit they were deposited. The present case is not one. of that kind. The- statute of Tennessee did no.t make it a condition of the right of the British corporation
¥e adjudge that when the general рroperty and assets of a private corporation, lawfully doing business in a State, are in course of administration by the courts of such State, creditors who are citizens of other States are entitled, under the Constitution of the United States, to stand upon the same plane with creditors of like class who are citizens of such State, and cannot be denied equality of right simply because they do not reside in that State, but are citizens residing in other States of the Union. The individual plaintiffs in error were entitled to contract with this British corporation, lawfully doing business in Tennessee, and deemed and taken to be a corporation
As to the plaintiff in error, the Hull Coal & Coke Company of Yirginia, different considerations must govern our decision. It has long been settled that, for purposes of suit by or against it in the courts of the United States, the members of a corporation are to be conclusively presumed to be citizens of the State creating such corporation ;
Louisville, Cincinnati & Charleston Railroad Co.
v.
Letson,
Since, however, a corporation is a “person” within the-meaning of the Fourteenth Amendment,
(Santa Clara County
v.
Southern Pacific Railroad Co.,
We are of opinion that this question must receive a negative
It is equally clear that the Virginia corporation cannot rely upon the clause declaring that no State shall “ deny to any '..person within its jurisdiction the equal protection of the laws.” That prohibition manifestly relates only to the denial by the State of equal protection to persons “ within its jurisdiction.” Observe, that the prohibition against the deprivation of property without due process of law is not qualified by the words “within its jurisdiction,” while those words are found in the succeeding clause relating to the equal protection of the laws. The court cannot assume that those words were inserted
What may be thе effect of the judgment of this court in the present ease upon the rights of creditors not residing in the United States, it is not necessary to decide; Those creditors are not before the court on this writ of error.
I am unable to concur in the opinion of the court in this case. In my judgment it misconceives the language of the statute, the issues presented by the pleadings, and the decision of the state court. The act does not discriminate between citizens of Tennessee and those of other States. Its language is creditors “ residents of this State shall have a priority . . . over all simple contract creditors being residents of any other country or countries.” The allegation of the amended bill is, “ your orators are all residents of the State of Tennessee and' were such at the time the various debts sued on in this cаuse were created,” and that by virtue of the statute they are entitled to priority over the “defendant, Eogers, Brown & Co., and all other creditors of said insolvent corporation who do not reside in the State of Tennessee, or did not so reside at the time their credits were given.” The intervening petition of the plaintiffs in error, Blake and Eogers, Brown
&
Co., alleges “that they are residents of the State of Ohio, and were at the times and dates hereinafter named engaged in business in said State, their residences, offices and places of business being at the city of Cincinnati.” The decree of the Chancery Court of Appeals adjudges “ that all of the creditors of said company who resided in the State of Tennessee are entitled to priority of payment out of all of the assets of the company of every kind over all of the creditors of said company who do not reside in the State of Tennessee.” And the decree of the Supreme Court of the State is in substantially the
Taking the statute as it reads, and assuming that the legislature of Tennessee meant that which it said, the question is whether a State, permitting a foreign corporation which is not engaged in interstate commerce to 'come into its territory and there do business, has the power to protect all persons residing within its limits who may have dealings with such foreign corporation by requiring it to give them a prior security on its
“ The insurance business, for example, cannot be carried on in a State by a foreign corporation without complying with all the conditions imposed by the legislation of that State. So with regard to manufacturing corporations, and all other corporations whose business is of a local and domestic nature, which would include express companies whose business is confined to points and places wholly within the State. The cases to this effect are numerous. Bank of Augusta v. Earle,13 Pet. 519 ; Paul v. Virginia,8 Wall. 168 ; Liverpool Insurance Company v. Massachusetts,10 Wall. 566 ; Cooper Manufacturing Company v. Ferguson,113 U. S. 727 ; Phila. Fire Association v. New York,119 U. S. 110 .”
Every one dealing with a foreign corporation is bound to take notice of the statutes of the State imposing conditions upon that corporation in respect to the transaction of its business within the'State, just as he must take notice of any mortgage or other incumbrance placed by the corporation upon its property there situated. A State may and often does provide that persons furnishing supplies to and doing work for a corporation shall have a lien upon the property of that corporation prior to any mortgage. The validity of such legislation has always been sustained, and they who loan their money to the corporation do so with notice of the limitation, and have no constitutional right of complaint if their mortgage is thereafter postponed to simple contract obligations. If voluntarily the corporation placed a mortgage upon all its assets within the State to secure a debt to a single creditor residing within
It is conceded, in the opinion of the court, that a foreign insurance corporation might be required to make a special deposit with the state treasurer to secure local policy holders, but if it is within the constitutional power of the State to require such special deposit, and when made it becomes in fact a security to the home policy holders, I am unable to appreciate why the State may not require a general mortgage on all the assets within the State as like security. Looking at it
Indeed, aside from the demand made by the statutes of certain States of deposits by foreign corporations to secure home creditors, there are frequent illustrations of discrimination based upon the matter of residence. Often non-resident plaintiffs are required to give security for costs when none is demanded of resident suitors. Attachments will lie in the beginning of an action, authorizing the seizure of property upon the ground that the defendant is a non-resident, when no such seizure is permitted in case of resident defendants. These and many similar illustrations, which might be suggested, only disclose that it has been accepted as a general truth that a State may discriminate on the ground of residence, and that such discrimination is not to be condemned as one between citizens ; and yet if the doctrine of the opinion of the court in this case be correct, I cannot see how those statutes can be sustained, for surely they discriminate between non-resident and resident suitors in the matter of fundamental rights, to wit, the right of equal entrance into the courts and equal security in the possession of property.
It may not be uninteresting to notice the case of
Fritts
v. Palmer,
“ Sec. 260. Foreign corporations shall, before they ai’e authorized or permitted to do any business in this State, make and file a certificate signed by the president and secretary of such corporation, duly acknowledged, with the secretary of State, . . . and no corporation doing business in the State, incorporated under the laws of any other State, shall be permitted to mortgage, pledge or otherwise incumber its real or personal property situated in this State, to the injury or exclusion of any citizen, citizens or corporations of this Statewho are creditors of such foreign corporation, and no mortgage by any foreign corporation, except railroad and telegraph companies, given to secure any debt created in any other State, shall take effect as against any citizen or corporation of this State until all its liabilities due to any person or corporation in this State at the time of recording such mortgage have been paid and extinguished.”
Commenting upon this section, and others, this court said (p. 288):
“No question is made in this case — indeed, there can be no doubt — as to the validity of these constitutional and statutory provisions, so far, at least, as they do not directly affect foreign or interstate commerce.. In Cooper Manufacturing Co. v. Ferguson,113 U. S. 727 , 732, this court said that£ the right of the people of a State to prescribe generally by its constitution and laws the terms upon which a foreign corporation shall be allowed to carry on its business in the State, has been settled by this court.’ ”
It will be perceived that the statute of Colorado restrained a foreign corporation from mortgaging, pledging or otherwise incumbering its property situate in the State to the injury or exclusion of any citizen of the State, creditor of such corporation, and further provided that no mortgage given by such foreign corporation to secure a debt created in another State should take effect against any citizen of the State until all liabilities due to any person or corporation in the State had been paid and extinguished. But this court said, and I think correctly, that there could be no doubt of the validity of these statutory provisions. It may be said, and said truthfully, that the attention of the court was. not specially direсted to this particular portion of the statute, and hence that the decision cannot be taken as authority. Yet the section was spread before the court, it is quoted in its opinion, and it was so obviously constitutional that neither counsel nor court had any doubt thereof. I note this case in order to suggest the objectionable evolution of the thought that a State may not protect those persons who are within its jurisdiction in respect to property also within its jurisdiction, or impose conditions on
The doctrine of this opinion is that a State has no power to secure protection to persons within its jurisdiction, citizens or non-citizens, in respect to property also within its jurisdiction, because, forsooth, such protection may in some cases work to the disadvantage of one who is not only a non-resident but also not a citizen of the State. It seems to me that the practical working out of this doctrine will be not that the State may not discriminate in favor of its own residents as against non-residents, but that the State must discriminate in favor of non-residents and against its own residents. Take this illustration: A corporation organized and having its home office in New York comes into California to do business. The State of California attempts to require that its assets within the State shall be kept as a primary security for home creditors. This court declares that such requisition is unconstitutional. The solvency or insolvency of that New York corporation will be known in New York by those who are nearer to its home office sooner than by people in California. Insolvency is impending. The creditors in New York, near the home office, and familiar therefore with its exact condition, ascertaining its approaching insolvency, send to California, where there are assets, and, availing themselves of the ordinary statutory provisions of that State, seize by attachment all the assets there situated. The insolvency is thereafter made public, and the California creditors find that all the assets of the corporation within their State have been seized by creditors outside the State, and they are driven to the State of New York, where the corporation was organized, where its home
I am authorized to state that the Chief Justice concurs in this dissent.