156 F. 1 | 8th Cir. | 1907
after stating- the case as above, delivered the opinion of the court.
Counsel for the appellant first assail the decree on the ground that, by filing the' replication after its exception to the defense that the complainant had been doing business in the state of Colorado without a license was overruled, the complainant estopped itself from again questioning the sufficiency of that defense. This is not a case in which complainant waived its objections to the answer by failing
The second and chief objection of counsel to the decree is that the contracts of factorage were illegal, and therefore void, because the complainant was a foreign corporation, and it carried on business in the state of Colorado without a license in violation of the statutes of that state. The contract of January, 1903, when reduced to its lowest terms, was that for one year the complainant would send on the orders of the defendant from its factory and 'warehouse in Eastern states shoes, boots, and rubber goods to the shoe company in Colorado, that the latter would make such advances to the complainant as it requested and would conduct the business and pay all the expenses of selling the goods for the factorage or commission, which consisted of the difference between the agreed prices between the parties to the contracts and the selling prices to the purchasers from the factor. The question has been exhaustively argued whether this was a contract for a conditional sale or a contract of agency. It did not evidence a conditional sale, because there was no obligation of the rubber company to transfer the title to the shoe company for an agreed price, and no obligation of the shoe company to pay an agreed price for the goods. There was no vendor or vendee named in the agreement. It was a contract of bailment for sale, not a contract of sale. In re Columbus Buggy Co., 143 Fed. 859, 74 C. C. A. 611. It was a contract of factorage. The supplemental contract of October, 1903, relieved the factor of making advances and bound it to guarantee payment for the goods it sold. It transformed the factor into a del credere factor. Were these contracts illegal and void?
The Constitution and the statutes of Colorado by their terms prohibit any foreign corporation from doing any business, exercising any corporate power, acquiring or holding any property, or prosecuting or defending any suit in the state, unless it has first filed with the Secretary of State a certificate of its incorporation, a written appointment of an agent in the state to accept service of process, and a. written specification of a principal place of business in the state, has paid to the Secretary of State $30 for its first $50,000 and 50 cents for each additional $1,000 of its capital stock, a fee of $5, and numerous other fees for filing papers and issuing his certificate, and has paid to the Auditor of the State an annual license fee of 2 cents for each $1,000 of its capital stock. Const. Colo. art. 15, § 10; 1 Mills’ Ann. St. §§ 499, 500; Sess. Laws Colo. 1901, p. 121, c. 52, § 10;
“Now a grant of corporate existence is a grant of special privileges to the corporators, enabling them to act for certain designates purposes as a single individual, and exempting them (unless otherwise specially provided) from individual liability. The corporation, being the mere creation of local laW, can have no legal existence beyond the limits of the sovereignty where created. As said by this court in Bank of Augusta v. Earle, 13 Pet. 519, 10 L. Ed. 274: ‘It must dwell in the place of its creation, and cannot migrate to another sovereignty.’ The recognition of its existence even by other states, and the enforcement of its contracts made therein, depend purely upon the comity of those states — a comity which is never extended where the existence of the corporation or the exercise of its powers is prejudicial to their interests or repugnant to their policy. Having no absolute right of recognition in other states, but depending for such recognition and the enforcement of its contracts upon their assent, it follows, as a matter of course, that such assent may be granted'upon such terms and conditions as those states may think proper to impose. They may exclude the foreign corporation entirely, they may restrict its business to particular localities, or they may exact such security for the performance of its contracts with their citizens as in their judgment will best promote the public interest. The whole matter rests in their discretion.”
From the statements in this quotation, counsel argued that the power and purpose of the state of Colorado were unrestricted, and that a foreign corporation cannot lawfully exercise any corporate power or do
In Pensacola Telegraph Company v. Western Union Telegraph Company, 96 U. S. 1, 8, 24 U Ed. 708, the state of Elorida had granted to the Pensacola Telegraph Company the exclusive right to establish and maintain lines of electric telegraph in certain counties of the state, and the Western Union Telegraph Company, a foreign corporation, sought to erect a line of telegraph therein. Chief Justice Waite opened the opinion of the court in that case in these words:
“Congress has power ‘to regulate commerce with foreign nations and among the several states’ (Const art. 1, § 8, par. 3) and ‘to establish post offices and post roads’ (Id. par. 7). The Constitution of the United States and the laws made in pursuance thereof are the supreme law of the land. A law of Congress made In pursuance of the Constitution suspends and overrides all state stal ules with which it is in conflict. Since the case of Gibbons v. Ogden, 9 Wheat. 1. 6 L. Ed. 23, it has never been doubted that commercial intercourse is the clement of commerce which comes within fhe regulating power of Congress.”
And he announced the unanimous opinion of the court that the, grant of the exclusive right by the state of Florida to the Pensacola Company, and its attempt thereby to exclude the foreign corporation from certain portions of the state, were futile. Of the case of Paul v. Virginia he said:
“We are aware that in Paul v. Virginia, 8 Wall. 168, 19 L. Ed. 357, this court decided that a state might exclude the corporation of another slate from its jurisdiction, and that corporations are not within the clause of tbe Constitution which declares that ‘the citizens of each state shall be entitled to all*8 privileges and immunities of citizens in the several states.’ Article 4, § 2. That was not, however, the case of a corporation engaged in interstate commerce; and enough was said by .the court to show that, if it had been, very different questions would have been presented.”
In Cooper Manufacturing Company v. Ferguson, 113 U. S. 727, 5 Sup. Ct. 739, 28 L. Ed. 1137, a corporation of the state of Ohio, in the face of the constitutional .and statutory prohibition against doing business in Colorado, without filing its certificate of incorporation, appointing its agent for service, and specifying its principal place of business in that state, made a contract in the state of Colorado, with citizens of that state, to seh and deliver to them in Ohio a steam engine and other machinery for an agreed price. The purchasers refused to pay the price, and pltaded in answer to an action for it the invalidity of the contract, because the Ohio corporation had failed to comply with the qualifying statute, and the court dismissed the action. The Supreme Court reversed that judgment. It held that the Constitution and the statutes of Colorado could not be so literally construed as to prohibit a single act of business within the state, and added:
“So it is clear that the statute cannot be construed to impose upon a foreign corporation limitations of its right to make contracts in the state for carrying on commerce between the states, for that would make the act an invasion of the exclusive right of Congress to regulate commerce among the several states.”
Mr. Justice Matthews and Mr. Justice Blatchford delivered a concurring opinion (pages 736, 737, of 113 U. S. page 742 of 5 Sup. Ct. [28 L. Ed. 1137]), in which they announced the rule upon this subject which has ever since prevailed in that court. They said:
“In the present case, the construction claimed for the Constitution of Colorado and the statute of that state passed in execution of it cannot be extended to prevent the plaintiff in error, a corporation of another state, from transacting any business in Colorado which of itself is commerce. The transaction in question was clearly of that character. It was the making of a contract in Colorado to manufacture certain machinery in Ohio, to be there delivered for transportation to the purchasers in Colorado. That was commerce; and to prohibit it, except upon conditions, is to regulate commerce between Colorado and Ohio, which is within the exclusive province of Congress. It is quite competent, no doubt, for Colorado to prohibit a foreign corporation from acquiring a domicile in that state, and to prohibit' it from carrying on within that state its business of manufacturing machinery. But it cannot prohibit it from selling in Colorado, by contracts made there', its machinery manufactured elsewhere, for that would be to regulate commerce between the states.”
In Pembina Mining Company v. Pennsylvania, 125 U. S. 181, 190, 8 Sup. Ct. 737, 741, 31 L. Ed. 650, the Supreme Court held that a state might exact a license fee for allowing a corporation, which was not engaged in interstate or foreign commerce, to maintain an office for its officers, stockholders, agents, and employés, but added that the power to exclude a foreign corporation from doing business within its limits, or to exact conditions for allowing it so to do, or for allowing it to hire offices therein did not exist, “where the corporation is in the employ of the federal government, or where its business is strictly commerce, interstate or foreign. The control of such com-
In Fritts v. Palmer, 132 U. S. 282, 283, 10 Sup. Ct. 93, 33 L. Ed. 317, a foreign corporation which was not engaged in commerce purchased, took, and conveyed a title to real estate in Colorado without filing the certificate of incorporation and appointments required by the Constitution and statutes of that state, and the Supreme Court sustained the title upon the ground that the only penalty for the violation of the statutes was the liability of the officers and stockholders imposed in such cases.
In Lyug v. Michigan, 135 U. S. 161, 166, 10 Sup. Ct. 725, 726, 34 L. Ed. 150, the state of Michigan imposed an annual tax of $300 upon the business of selling brewed or malt liquors. Citizens of Wisconsin were engaged in manufacturing such liquors at Green Bay, in that state. They owned a warehouse at Iron River, in the state of Michigan, to which they shipped and in which they stored their liquor for sale in the original packages, and they employed Lyng as their agent to sell it there. Neither they nor their agent paid the tax; but he sold the liquor, and was arrested and convicted for a violation of the law. The Suoreme Court reversed the conviction, citing Le Loup v. Mobile, 127 U. S. 640, 648, 8 Sup. Ct 1380, 32 L. Ed. 311, and Bowman v. Chicago & Northwestern Railway, 125 U. S. 465, 8 Sup. Ct. 689, 31 L. Ed. 700, and said:
"We have repeatedly held that no state has the right to lay a tax on Interstate commerce in any form, whether by way of duties laid on the transportation of subjects of that commerce, or on the receipts derived from that transporto Hon, or on the occupation or business of carrying it on, for the reason that such taxation is a burden on that commerce, and amounts to a regulation of it, which belongs solely to Congress.”
In Norfolk & Western R. R. Co. v. Pennsylvania, 136 U. S. 114, 115, 118, 120, 10 Sup. Ct. 958, 960, 34 L. Ed. 394, the state of Pennsylvania had prohibited every foreign corporation, except insurance companies, which did not invest and use its capital in that commonwealth, from having any office or offices in that state, unless it paid an annual tax or license fee of one-fourth of a mill upon each dollar of its authorized capital to the auditor of the state. The Norfolk & Western Railroad Company was a foreign corporation. It had no railroad, and with trifling exceptions no capital, in the state of Pennsylvania; but its line of railroad in Virginia and West Virginia connected with other railroads, so that it formed a link in a through line of railroad over which, as a part of the business thereof, freight and passengers were carried into and out of the state. It had offices in Pennsylvania for the use of its officers, stockholders, agents, and employes. The Auditor assessed the annual tax upon it, and the state recovered a judgment therefor, which was affirmed by the Supreme Court of Pennsylvania. The Supreme Court of the United States reversed that judgment and said:
“It ⅛ well seltled by numerous decisions of this court that a state cannot, under the guise of a license tax, exclude from its jurisdiction a foreign corporation engaged in interstate commerce, or impose auy burden upon such commerce within its limits. * * * One of the terms of the contract by which*10 the plaintiff in error became a link in the through line of road referred to in the findings of fact provided that ‘it shall he the duty of each initial road, member of the line, to solicit and procure traffic for the Great Southern De-spatch [the name of said .through line] at its own proper cost and expense.’ Again, the plaintiff in error does not exercise, or seek to exercise, in Pennsylvania any privilege or franchise not immediately connected with interstate commerce and required for the purposes thereof. Before establishing its office in Philadelphia it obtained from the Secretary of the Commonwealth the certificate required by the act of the state Legislature of 1874 enabling it to maintain an office in the state. That office was maintained because of the necessities of the interstate business of' the company, and for no other purpose. A tax upon it was, therefore, a tax upon one of the means or instru-mentalities of the company’s interstate commerce, and as such was in violation of the commercial clause of the Constitution of the United States. Gloucester Ferry Co. v. Pennsylvania, 114 U. S. 196, 5 Sup. Ct. 826, 29 L. Ed. 158; Philadelphia Steamship Co. v. Pennsylvania, 122 U. S. 326, 7 Sup. Ct. 1118, 30 L. Ed. 1200, and cases cited; McCall v. California, 136 U. S. 104, 10 Sup. Ct. 881, 34 L. Ed. 392.”
In Crutcher v. Kentucky, 141 U. S. 47, 57-59, 11 Sup. Ct. 851, 853, 854, 35 L. Ed. 649, the Legislature of that state had prohibited any agent of a foreign express company from doing business in the state unless the express company first filed with the Auditor of the State a statement of its articles of association and satisfactory evidence that it had $150,000 invested in some safe dividend paying stock and had paid to the Auditor of State fees to the amount of $20. Crutcher, the agent of a foreign corporation which was engaged in both interstate and intrastate commerce in Kentucky, was convicted and fined for a violation of this statute, and his conviction was affirmed by the Supreme Court of the state. But the Supreme Court of the United States reversed that conviction, and held that the state statute was unconstitutional and void, with declarations of the law which bear with compelling force upon the issue in this case. It said:
“If a partnership firm of individuals should undertake to carry on the business of interstate commerce between Kentucky and other states, it would not be within the province of the state Legislature to exact conditions on which they should carry on their business, nor to require them to take out a license therefor. To carry on interstate commerce is not a franchise or a privilege granted by the state. It is a right which every citizen of the United States is entitled to exercise under the Constitution and laws of the United States; and the accession of mere corporate facilities, as a matter of convenience in carrying on their business, cannot have the effect of depriving them of such right, unless Congress should see fit to interpose some contrary regulation on the subject. It has frequently been laid down by this court that the power of Congress over interstate commerce.is as absolute as it is over foreign commerce. Would any one pretend that a state Legislature could prohibit a foreign corporation — an English or a French transportation company, for example — from coming into its borders and landing goods and passengers at its wharves, and soliciting goods and passengers for a return voyage, without first obtaining a license from some state officer, and filing a sworn statement as to the amount of its capital stock paid in? And why not? Evidently because the matter is not within the province of state legislation, but within that of national legislation. * * * And the same thing is exactly true with regard to interstate commerce as it is with regard to foreign commerce. * * * We do not think that the difficulty is at all obviated by the fact that the express company, as incidental to its main business (which is to carry goods between different states), does also some local business by carrying goods from one point to another within the state of Kentucky. This is, probably, quite as much for the accommodation of the people of that state as for the advantage of the company. But, whether so or not, it does not obviate the objection*11 that the regulations as to license and capital stock are imposed as conditions on the company’s carrying on the business of interstate commerce, which was manifestly the principal object of its organization. These regulations are clearly a burden and a restriction upon that commerce. Whether intended as such, or not, they operate as such.”
In Horn Silver Mining Company v. New York State, 143 U. S. 305, 315, 12 Sup. Ct. 403, 405, 36 L. Ed. 164, a corporation of Utah, which alleged in its answer that it was a manufacturing. corporation carrying on manufactures in the state of New York, and which was found by the courts to have been engaged in business independently of interstate commerce, was held to be subject to a franchise tax levied upon all corporations, domestic and foreign, by a law of the state of New York. But Justice Field, who delivered the opinion of the court in that case and also* in Paul v. Virginia, after quoting the unrestricted terms he used in the latter case, declared that two qualifications or exceptions to the power of a state to destroy or limit the right of a foreign corporation to do business within its limits had been established — - one, that jt could not exclude or condition the right of a foreign corporation to transact the business of interstate or foreign commerce within its borders; and another, that it could not exclude or condition the right of such a corporation to do business in the state when it was in the employ of the general government.
In Osborne v. Florida, 164 U. S. 650, 655, 17 Sup. Ct. 214, 41 L. Ed. 586, the Supreme Court of that state held that one of its .statutes, which imposed a license fee upon all express companies doing business in the state, did not apply to or affect in any manner the business of a company which was interstate in its character, and that, so long as an express company confined its operations to interstate or foreign commerce, it was wholly exempt from this statute, and the Supreme Court sustained that decision, and in reviewing Crutcher v. Kentucky, 141 U. S. 47, 11 Sup. Ct. 851, 35 L. Ed. 649, made these remarks which are pertinent to the Colorado Constitution and statutes here under consideration :
“The statute herein differs from the cases where statutes upon this subject have been held void, because in those cases the statutes prohibited the doing of any business In the state whatever, unless upon the payment of a fee or tax. It was said as to those cases that, as the law made the payment of the fee or the obtaining of tbe license a condition to the right to do any business whatever, whether interstate or purely local, it was on that account a regulation of interstate commerce, and therefore void. Here, however, under the construction as given by the state court, the company suffers no harm from the provisions of the statute. It can conduct its interstate business without paying the slightest heed to the act, because it does not apply to or in any degree affect the company in regard to that portion of its business which it has the right to conduct without regulation from the state. The company in this case need take out no license and pay no tax for doing interstate business, and the statute is therefore valid.”
In Miller v. Ammon, 145 U. S. 421, 422, 12 Sup. Ct. 884, 36 L. Ed. 759, cited by the appellant, a citizen of Wisconsin purchased of the plaintiff in Chicago, -on credit, and the plaintiff delivered to the purchaser in Chicago, wine, in violation of the ordinance of the city of Chicago, which prohibited such a sale in that city without a license, under a penalty of from $50 to $100. There was no interstate commerce
In Missouri, Kansas & Texas Trust Company v. Krumseig, 172 U. S. 351, 19 Sup. Ct. 179, 43 L. Ed. 474, the Supreme Court of-Minnesota had held that a statute of that state which declared that, whenever it satisfactorily appeared to a court that any evidence of debt was usurious, the court should declare it void, required the court to declare it void, without requiring the moneys borrowed upon it to be repaid, and the Supreme Court held that this construction must be given to the statute in a suit in equity in the federal court, based upon the statute. But that court added :
“Of course, these views are not applicable to eases arising out of interstate commerce, where the policy to be enforced is federal.”
In Diamond Glue Co. v. U. S. Glue Company, 187 U. S. 611, 23 Sup. Ct. 206, 47 L. Ed. 328, a foreign corporation, without qualifying to do business according to the law of the state of Wisconsin, made a contract to supervise the plans for a glue factory to be built upon a site in that state, to manage the manufacturing in the factory, to operate it for the defendant, and to do various other things. After the factory had been erected and put in operation, the defendant failed to comply with some of its terms, and the foreign corporation brought a suit upon it. The Supreme Court held that the contract was not for the carrying on of interstate commerce, but for the doing of a local business in the. state of Wisconsin, and that it could not be enforced. This case is cited and much relied upon by counsel for the appellant; but it fails to govern the issue here in controversy, because the contract of the foreign corporation in that case was to carry on a local business in the state of Wisconsin.
In Chattanooga Building & Loan Ass’n v. Denson, 189 U. S. 408, 23 Sup. Ct. 630, 47 L. Ed. 870, cited by appellant, no question of interstate commerce arose, and the Supreme Court followed the opinion of the highest judicial tribunal of Alabama, to the effect that loaning money and taking a mortgage upon property in that state constituted doing business therein, and made the note and mortgage void where it had been taken by a foreign corporation without complying with the qualifying statute of the state.
In Pennsylvania Lumbermen’s Mutual Fire Insurance Co. v. Meyer, 197 U. S. 407, 25 Sup. Ct. 483, 49 L. Ed. 810, and Board of Trade v. Hammond Elevator Co., 198 U. S. 424, 441, 25 Sup. Ct. 740, 49 L. Ed. 1111, no question of the regulation of interstate commerce' arose, and the only issue was whether the foreign corporations had been doing business in the state to such an extent that the service of process upon one of their directors or agents therein was a lawful service upon the corporation.
In Caldwell v. North Carolina, 187 U. S. 622, 623, 23 Sup. Ct. 229, 47 L. Ed. 336, an ordinance of the city of Greensboro prohibited every person from engaging in the business of selling or delivering picture frames, pictures, photographs, or likenesses of the human face, unless
“It is strongly urged, as if it were a material point in the ease, that no discrimination is made between domestic and foreign drummers — those of Tennessee and those of other states; that all are taxed alike, Bui, that does not meet the difficulty. Interstate commerce cannot be taxed at all, even though the same amount of tax should be laid on domestic commerce, or that which is carried on solely within the state. This was decided in the case of The State Freight Tax, IS Wall. 232, 21 L. Ed. 146. The negotiation oí sales of goods which are in another state, for the purpose of introducing them into the state in which the negotiation is made, is interstate commerce. A New Orleans merchant cannot bo ta^ed there for ordering goods from London or New York, because in the one case it is-an act of foreign and in the other of interstate commerce, both of which a,re subject to regulation by Congress alone.”
It then quoted the opinion of the Supreme Court of North Carolina, that the transaction was not interstate commerce because the pictures and frames were shipped to the foreign corporation itself in Greensboro, were taken to its rooms in the hotel, there taken out of their original packages and put together, and then delivered by its agent, although it conceded that if the pictures had been placed in their frames in Chicago, and then shipped directly to the purchasers in original packages", that business might have been interstate commerce, and said:
“We are not persuaded by their reasoning. It seems to proceed upon two propositions: First, that the pictures in question were not completed before they were brought to Greensboro; and, second, that the articles were not shipped directly to the purchasers, but to an agent of the sender in Greensboro. But it certainly cannot be pretended that, if the pictures and the disconnected frames liad been directly shipped to the purchasers, the license tax could have been imposed, either on the vendor out of the state, or on the purchaser within the state. If the pictures and the frames intended for them had been shipped directly to the purchasers, whether in the same or separate packages, such a transaction would, beyond question, be interstate commerce, beyond the reach of the taxing power of the state. It is too plain for argument that the supposed incomplete condition of articles of commerce, if shipped directly to the purchasers, cannot subject them to the license tax. ⅞ * i; Nor does the fact that these articles were not shipped separately and directly to each individual purchaser, but were sent to an agent of the vendor at Greensboro, who delivered them to the purchasers, deprive the transaction of its character as interstate commerce. ~ * ⅜ That the articles were sent as freight by rail, and were received at the railroad station by an agent who delivered them to the respective purchasers, in no wise changes the character of the commerce aa interstate. 'Transactions between manufacturing companies in one state, through agents, with citizens of another, constitute a largo part of interstate commerce; and for us to hold, with the court below, that*14 the same articles, If sent by rail directly to the purchasers, are free from state taxation, but, if sent to an agent to deliver, are taxable through a license tax upon the agent, would evidently take a considerable portion of such traffic out of the salutary protection of the interstate commerce clause of the Constitution.”
In the light of the foregoing decisions there can be no doubt that no state in the Union retains the power to exclude a foreign corporation from, or to condition or burden its exercise of its constitutional right to carry on interstate commerce in recognized staple articles of commerce within the limits of the state.
There is yet another exception to the power of a state to condition the right of a foreign corporation to do business within its borders. It may,not limit that right by requiring the corporation, as a condition of doing business, to waive or surrender its right to a determination of its controversies with citizens of other states in the national courts.
In Insurance Company v. Morse, 20 Wall. 445, 455, 456, 22 L,. Ed. 365, the state of Wisconsin had enacted a law which by its terms conditioned the exercise by an insurance corporation of its right to do business in the state by requiring a contract on its part not to remove any suit against it to the federal court. The corporation made the agreement, but subsequently filed a petition and gave a bond for the removal of the action against it, brought by a citizen of Wisconsin, from the state court to the federal court. The court of the state denied the petition and gave judgment for the plaintiff, which was affirmed by the Supreme Court of the state. The Supreme Court of the United States again quoted and qualified the broad statement of the power of a state to exclude a foreign corporation, found in Paul v. Virginia, 8 Wall. 168, 19 L. Ed. 357. It said of that statement:
“The general language of the learned justice is to be expounded with reference to the judgment before him.”
Speaking of the case of Paul v. Virginia, it declared that:
“It had no reference to the clause giving to citizens of other states the right of litigation in the United States courts, and certainly had no bearing upon the right of corporations to resort to those courts, or the power of the state to limit and restrict such resort.”
Discussing the question upon its merits, the opinion proceeded in this way:
“The Constitution of the United States declares that the judicial power of the United States shall extend to all eases in law and equity arising under that Constitution, the laws of the United States, and to the treaties made or which shall be made under their authority, * * * and to controversies between a state and citizens of another state and between citizens of different states. The jurisdiction of the federal courts under this clause of the Constitution depends upon and is regulated by the laws of the United States. State legislation cannot confer jurisdiction upon the federal courts, nor can it limit or restrict the authority given by Congress in pursuance of the Constitution. This has been held many times. Railway Company v. Whitton, 13 Wall. 270, 20 L. Ed. 571; Payne v. Hook, 7 Wall. 427, 19 L. Ed. 260; The Moses Taylor, 4 Wall. 411, 18 L. Ed. 397, and cases cited. It has also been held many times that a corporation is a citizen of the state by which it is created and in which its principal place of business is situate, so far as that it can sue and be sued in the federal courts. This court has repeatedly held that a corporation was a citizen of the state creating it, within the clause of the Constitution*15 extending the jurisdiction of the federal courts to citizens of different states.” 20 Wall. 453. 22 L. Ed. 305.
The Supreme Court reversed the judgment below, and held (1) that the Constitution oi the United States secured to corporations of other states the absolute right to remove their cases into the federal courts upon compliance with the national statutes, and (2) that the statute of Wisconsin was an obstruction to that right, was repugnant to the Constitution of the United Stales and the laws in pursuance thereof, and was illegal and void.
The question arose again in Barron v. Burnside, 121 U. S. 186, 200, 7 Sup. Ct. 931, 936, 30 L. Ed. 915, and the former decision was affirmed. The court said:
“As the Iowa statute makes the right to a permit dependent upon the surrender by the foreign corporation of a privilege secured to it by the Constitution and laws of the United States, the statute requiring the permit must be held to be void. * * * In all the cases in which this court has considered the subject of the granting by a state to a foreign corporation of its consent to the transaction of business in the state, it has uniformly asserted that no conditions can be imposed by the state which are repugnant to the Constitution and laws of the United States.”
The review of the decisions of ,the Supreme Court relating to the power of a state to trammel or destroy the riglxt of a corporation of another state to do business within its borders in which we have indulged may have been tedious; but it may be profitable, if it serve to correct the erroneous view that such a corporation has no such right, and that all its powers and privileges without the limits of the state of its creation are at the mercy of any state in which it attempts to do business. It is not now, and it never has been, the law that no corporation of one state has any absolute right of recognition in other states, or that other states may exclude all the corporations of any state from doing any business within them, or that they may condition their transaction of such business by such terms as they may think proper to impose.
The Constitution of the United States and the acts of Congress in pursuance thereof are the supreme law of the land. Under that Constitution and those laws a corporation of one state has at least three absolute rights which it may freely exercise in every other state in the Union, without let or hindrance from its legislation, or action:
(1) Every corporation, empowered to engage in interstate commerce by the state in which it is created, may carry on interstate commerce in every state in the Union, free of every prohibition and condition imposed by the latter. Pensacola Telegraph Company v. Western Union Telegraph Company, 96 U. S. 1, 8, 24 L. Ed. 708; Cooper Manufacturing Company v. Ferguson, 113 U. S. 727, 736, 737, 5 Sup. Ct. 739, 28 L. Ed. 1137; Pembina Silver Mining Company v. Pennsylvania, 125 U. S. 181, 190, 8 Sup. Ct. 737, 31 L. Ed. 660; Lyng v. Michigan, 135 U. S. 161, 166, 10 Sup. Ct. 725, 34 L. Ed. 150; Norfolk, etc., Ry. Co. v. Pennsylvania, 136 U. S. 114, 115, 118, 120, 10 Sup. Ct. 958, 34 L. Ed. 394; Crutcher v. Kentucky, 141 U. S. 47, 57, 59, 11 Sup. Ct. 851, 35 L. Ed. 649; Horn Silver Mining Company v. New York, 143 U. S. 305, 315, 12 Sup. Ct. 403, 36 L.
(2) Every corporation of any state in the employ of the United States has the right to exercise the necessary corporate powers and to transact the business requisite to discharge the duties of that employment in every other state in the Union without permission granted, or conditions imposed by the latter. Pembina Mining Co. v. Pennsylvania, 125 U. S. 181, 186, 8 Sup. Ct. 737, 31 L. Ed. 650; Horn Silver Mining Co. v. New York, 143 U. S. 305, 315, 12 Sup. Ct. 403, 36 L. Ed. 164.
(3) Every corporation of each. state has the absolute right to institute and maintain in the federal courts, and to remove to those courts for trial and decision, its suits in every other state, in the cases and on the terms prescribed by the acts of Congress. Insurance Company v. Morse, 87 U. S. 445, 453, 456, 22 L. Ed. 365; Barron v. Burnside, 121 U. S. 186, 200, 7 Sup. Ct. 931, 30 L. Ed. 915.
Every law of a state which attempts to destroy these rights or to burden their exercise is violative of the Constitution of the United States and void. The Constitution and statutes of Colorado prohibit every foreign corporation from doing business and from exercising any corporate power in that state until it pays the fees and the annual license tax and complies with the other requirements of its statutes. The result is that in so far'as this Constitution and these statutes forbid or obstruct the exercise by a foreign corporation of it right to use the necessary corporate powers to carry on interstate commerce and to maintain and defend its suits in the federal courts, they are repugnant to the Constitution and laws of the nation and ineffective.
We come, then, to the question: Were the contracts in suit transactions of interstate commerce? The contract of January; 1903, was made in New York, and that of October, 1903, in Colorado; but the place of their execution is immaterial here, because the right of the rubber company was as absolute to make and to perform a contract of interstate commerce in Colorado as in New Jersey.
The contention that the rubber goods ceased to be articles of interstate commerce, and became a part of the mass of the property in the state, upon their delivery to the consignee, is likewise immaterial. The soundness of this contention is not conceded. But, if it were, neither that concession nor the numerous authorities upon the taxation of property in the state would be either decisive or persuasive here, for the question is, not whether or not the goods were taxable within the state, but whether or not the state could lawfully prohibit their importation and annul all contracts therefor. If a part of the goods or of the business of the rubber company has been or is within tíre state of Colorado, there are adequate methods of taxing it, without restraining or prohibiting its interstate commerce, and that fact furnishes no support for such a prohibition. Le Loup v. Port of Mobile, 127 U. S. 640, 647, 8 Sup. Ct. 1380, 32 L. Ed. 311; Crutcher v. Kentucky, 141 U. S. 47, 59, 11 Sup. Ct. 851, 35 L. Ed. 649.
commerce. Caldwell v. North Carolina, 187 U. S. 622, 629, 23 Sup. Ct. 229, 47 L. Ed. 336; Wagner v. Meakin, 92 Fed. 76, 33 C. C. A. 577, 581, 584; Allen v. Tyson-Jones. Buggy Co., 91 Tex. 22, 40 S. W. 393, 714; Chattanooga R. & C. R. Co. v. Evans, 66 Fed. 809, 814, 14 C. C. A. 116; Gunn v. White Sewing Machine Co.. 57 Ark. 24, 20 S. W. 591, 18 L. R. A. 306, 38 Am. St. Rep. 223; Keating Implement & Machine Co. v. Favorite Carriage Co., 12 Tex. Civ. App. 666, 35 S. W. 417. The decision of the Supreme Court of Kentucky to the contrary in Commonwealth v. Parlin & Orendorff Co., 118 Ky. 168, 80 S. W. 791, has been thoughtfully read, but it does not commend itself to our judgment.
As the contracts were transactions of interstate commerce, any prohibition or obstruction to the making of them, or to the enforcement of them in the national courts, by the legislation or action of the state of Colorado, was beyond the power of the state and futile. Where the Congress has passed no law regulating interstate commerce in well-recognized articles of commerce, that fact is conclusive evidence that it intends such commerce to be free, and any law of a state which prohibits or restrains it at all is unconstitutional and void. Caldwell v. North Carolina, 187 U. S. 622, 629, 23 Sup. Ct. 229, 47 L. Ed. 336; Brown v. Houston, 114 U. S. 622, 631, 5 Sup. Ct. 1091, 29 L. Ed. 257; Bowerman v. Rogers, 125 U. S. 585, 587, 8 Sup. Ct. 986, 31 L. Ed. 815; Walling v. Michigan, 116 U. S. 455, 456, 6 Sup. Ct. 454, 29 L. Ed. 691; Welton v. The State of Missouri, 91 U. S. 275, 282, 23 L. Ed. 347; State Freight Tax, 15 Wall. 233, 21 L. Ed. 146; Brennan v. Titusville, 153 U. S. 289, 302, 14 Sup. Ct. 829, 38 L. Ed. 719; Robbins v. Shelby Comity Taxing District, 120 U. S. 489, 493, 7 Sup. Ct. 592, 30 L. Ed. 694; Le Loup v. Mobile, 127 U. S. 640, 647, 648, 8 Sup. Ct. 1380, 32 L. Ed. 311; Lyng v. Michigan, 135 U. S. 161, 166, 10 Sup. Ct. 725, 34 L. Ed. 150; Leisy v. Hardin, 135 U. S. 100, 119, 10 Sup. Ct. 681, 34 L. Ed. 128.
There' is, however, another view of this case which is both reasonable and persuasive. The law upon the subject which has been considered was the same when the Colorado Constitution was adopted and when her statutes were enacted that it is to-day, and the legal presumption, in the absence of persuasive evidence of another purpose, is •that the people and the Regislature of that state intended in the adoption of this Constitution and the enactment of these laws to obey the supreme law of the land, that they intended to prohibit the doing of intrastate business only, and the exercise by foreign corporations of ■corporate power unauthorized by the Constitution and laws of the United States, and that only, without a license from their state. Hence this Constitution and these statutes should be read and interpreted, if possible, in the light of this presumption, so that they will not conflict
Let us now turn to the contracts, observe what the rubber company-agreed to do and what it actually did under them, and determine, if possible, whether or not in making or in performing these agreements it was guilty of doing any business within the meaning of the Constitution and statutes of Colorado. It agreed to ship the goods from its warehouse, or its mill, upon the orders of the appellee, to that company in Denver; and it: did so. It contracted to do, and it did, nothing more. It never had any office or place of business in Colorado. It never received, stored, handled, or sold any goods, or collected any money for the sales of any goods, in that state under this contract. It never incurred, assumed, or paid any expenses of doing all these, things, or of conducting any of the business. The shoe company had and maintained a place of business in Colorado, it rented or owned the place in which the business in Colorado was done, and it agreed to bear all the expenses and losses of receiving, storing, and selling the goods; and it did so. The purchasers of the goods were purchasers from it, solicited and secured by it. They were its customers, and liable to it for the purchase price of the goods. The goods were billed to them in the name of the shoe company as consignee. The profits of the business and the work of the business, the labor of receiving, storing, and selling the goods, were the shoe company’s. The profits constituted its factorage, its compensation, for carrying on the business. There is no question here between the-state and the shoe company, or between the shoe company and the purchasers of the goods, or between the rubber company and the purchasers of the goods. The question here is between the consignor and the factor, and it is whether the consignor, which did not agree to do, and did not in fact, do the business of receiving, storing, and
Many authorities have been examined which relate in some degree to the question which has now been decided. They are numerous, various, and conflicting, and any attempt to reconcile them must fail. The reasons for the conclusion reached have been stated, and some of the authorities examined are here cited for reference: Nutter v. Wheeler, 2 Lowell, 346, 18 Fed. Cas. 497; In re Hovey’s Estate, 198 Pa. 385, 48 Atl. 311, 315; Chattanooga, R. & C. R. Co. v. Evans, 66 Fed. 809, 815, 816, 14 C. C. A. 116, 121, 122; Allen et al. v. Tyson-Jones Buggy Co., 91 Tex. 22, 40 S. W. 393, 714; Keating Implement & Machine Co. v. Favorite Carriage Co., 12 Tex. Civ. App. 666, 35 S. W. 417; Gunn v. White Sewing Machine Co., 57. Ark. 24, 20 S. W. 591, 18 L. R. A. 206, 38 Am. St. Rep. 223; Bertha Zinc & Mineral Co. v. Clute, 27 N. Y. Supp. 342, 7 Misc. Rep. 123; U. S. v. American Bell Teleph. Co. (C. C.) 29 Fed. 17, 40; Wolff Dryer v. Bigler, 192 Pa. 466, 43 Atl. 1092; Ammons v. Brunswick Co., 141 Fed. 570, 575, 72 C. C. A. 614; Blodgett v. Lanyon Zinc Co., 120 Fed. 893, 58 C. C. A. 79; Iowa Lillooet Gold Mining Co. v. U. S. F. & G. Co. (C. C.) 146 Fed. 437; Osborne & Co. v. Josselyn, 92 Minn. 267, 99 N. W. 890; Davis & Rankin Building, etc., Co. v. Caigle (Tenn. Ch. App.) 53 S. W. 240; Southern Cotton Oil Co. v. Wemple (C. C.) 44 Fed. 24; People ex rel. v. Wemple, 131 N. Y. 64, 69, 29 N. E. 1002, 27 Am. St. Rep. 542; Chicago M. & E. Co. v. Sims, 101 Mo. App. 569, 74 S. W. 128; Fertilizer Co. v. Kelly, 10 Pa. Super. Ct. 565; Elliott v. Parlin & Oren-dorff Co., 71 Kan. 665, 81 Pac. 500, 502; John Deere Plow Co. v. Wyland, 69 Kan. 255, 76 Pac. 863; D. M. Osborne & Co. v. Shilling (Kan.) 88 Pac. 258; Pennsylvania L. M. Fire Ins. Co. v. Meyer, 197 U. S. 407, 415, 25 Sup. Ct. 483, 49 L. Ed. 810; Commonwealth v. Parlin & Orendorff Co., 118 Ky. 168, 80 S. W. 791; New Haven Pulp & Board Co. v. Downingtown Mfg. Co. (C. C.) 130 Fed. 605; Wilson Moline Buggy Co. v. Priebe (Mo. App.) 100 S. W. 558; Pittsburgh Const. Co. v. West Side Belt R. Co. (C. C.) 151 Fed. 125; Brewing
Finally, counsel for the shoe company argue that the decree should be reversed and the bill dismissed because the complainant had an adequate remedy at law. The adequate remedy at law which will deprive a federal court of jurisdiction in equity must be as certain, practical, prompt, efficient, and complete as the remedy in equity. Boyce’s Executors v. Grundy, 3 Pet. 210, 215, 7 L. Ed. 855; Castle Creek Water Co. v. City of Aspen, 148 Fed. 8, 14, 76 C. C. A. 516. The relief which the complainant sought was the immediate possession and ultimate recovery of the goods in the hands of the defendant which subsequently realized $29,647.09, the recovery from the bank of the $8,276.47 which it owed upon the “Butter Bros. Shoe Company Consignee Account,” and the recovery from the shoe company of the $14,856.37 which it; owed on account of the goods it had sold. The shoe company denied by irs answer that the complainant was entitled to any of this relief. To obtain such relief at law an action of replevin and of assumpsit against the defendant, and an action against the hank, would have been necessary, and the remedy by two or three actions at law might not have been as prompt and efficient as a single suit in equity. In order to determine the issues presented by the pleadings it was necessary to take and state an account of many items, to the end that the quantities and selling prices of the goods which the defendant had sold and the amounts due to the complainant therefor might be determined. No action at law furnishes as efficient, practical, or adequate a remedy for the decision of such a controversy as a suit in a court of equity, which, with its deliberate methods, its power to select men trained in the science of accounting to take the evidence and state the result, its authority to consider and modify their reports after exceptions and hearings, is alone really competent to justly determine such an issue. Gunn v. Brinkley Car Works & Mfg. Co., 66 Fed. 382, 384, 13 C. C. A. 529, 531; Hayden v. Thompson, 71 Fed. 60, 64, 17 C. C. A. 592, 595; Fechteler v. Palm Bros. & Co., 133 Fed. 462, 465, 66 C. C. A. 336; M’Mullen Lumber Co. v. Strother, 136 Fed. 295, 303, 304, 69 C. C. A. 433.
The complainant had no adequate remedy at law, and the decree below must be affirmed.
It is so ordered.
