« PreviousContinue »
by its necessary operation, materially or directly burdens that business.
It is true that the business in which the International Textbook Company is engaged is of a somewhat exceptional character, but, in our judgment, it was, in its essential characteristics, commerce among the States within the meaning of the Constitution of the United States. It involved, as already suggested, regular and, practically, continuous intercourse between the Textbook Company, located in Pennsylvania, and its scholars and agents in Kansas and other States. That intercourse was conducted by means of correspondence through the mails with such agents and scholars. While this mode of imparting and acquiring an education may not be such as is commonly adopted in this country, it is a lawful mode to accomplish the valuable purpose the parties have in view. More than that; this mode-looking at the contracts between the Textbook Company and its scholars-involved the transportation from the State where the school is located to the State in which the scholar, resides, of books, apparatus and papers, useful or necessary in the particular course of study the scholar is pursuing and in respect of which he is entitled, from time to time, by virtue of his contract, to information and direction. Intercourse of that kind, between parties in different States-particularly when it is in execution of a valid contract between them-is as much intercourse, in the constitutional sense, as intercourse by means of the telegraph-"a new species of commerce," to use the words of this court in Pensacola Telegraph Co. v. Western Union Telegraph Co., 96 U. S. 1, 9. In the great case of Gibbons v. Ogden, 9 Wheat. 1, 189, this court, speaking by Chief Justice Marshall, said, "Commerce, undoubtedly, is traffic, but it is something more; it is intercourse." Referring to the constitutional power of Congress to regulate commerce among the States and with foreign countries, this court said in the Pensacola case, just cited, that "it is not only the right but the duty of Congress to see to it that intercourse among the States and the transmission
of intelligence are not obstructed or unnecessarily encumbered by state legislation." This principle has never been modified by any subsequent decision of this court.
The same thought was expressed in Western Union Tel. Co. v. Pendleton, 122 U. S. 347, 356, where the court said: "Other commerce deals only with persons, or with visible and tangible things. But the telegraph transports nothing visible and tangible; it carries only ideas, wishes, orders, and intelligence." It was said in the Circuit Court of Appeals for the Eighth Circuit, speaking by Judge Sanborn, in Butler Bros. Shoe Co. v. United States Rubber Co., 156 Fed. Rep. 1, 17, that "all interstate commerce is not sales of goods. Importation into one State from another is the indispensable element, the test, of interstate commerce; and every negotiation, contract, trade, and dealing between citizens of different States, which contemplates and causes such importation, whether it be of goods, persons, or information, is a transaction of interstate commerce." If intercourse between persons in different States by means of telegraphic messages conveying intelligence or information is commerce among the States, which no State may directly burden or unnecessarily encumber, we cannot doubt that intercourse or communication between persons in different States, by means of correspondence through the mails, is commerce among the States within the meaning of the Constitution, especially where, as here, such intercourse and communication really relates to matters of regular, continuous business and to the making of contracts and the transportation of books, papers, etc., appertaining to such business. In our further consideration of this case we shall therefore assume that the business of the Textbook Company, by means of correspondence through the mails and otherwise between Kansas and Pennsylvania, was interstate in its nature.
3. We must next inquire whether the statute of Kansas, if applied to the International Textbook Company, would directly burden its right by means of correspondence through the mails and by its agents, to secure written agreements with
persons in other States, whereby such persons, for a valuable consideration, contract to pay a given amount for scholarships in its Correspondence Schools, and to have sent to them, as found necessary, from time to time, books, papers, apparatus and information, needed in the prosecution, in their respective States, of the particular study which the scholar has elected to pursue under the guidance of those who conduct such schools at Scranton? Let us see what effect the statute by its necessary operation must have on the conduct of the company's business.
In the first place, it is made a condition precedent to the authority of a corporation of another State, except banking, insurance and railroad corporations, to do business in Kansas, that it shall prepare, deliver and file with the Secretary of State a detailed "Statement," showing the amount of the authorized, paid-up, par and market value of, its capital stock, its assets and liabilities, a list of its stockholders, with their respective post-office addresses and the shares held and paid for by each, and the names and post-office addresses of the officers, trustees, or directors and managers.
In the next place, the statute denies to the corporation doing business in Kansas the right to maintain an action in a Kansas court, unless it shall first obtain a certificate of the Secretary of State to the effect that the Statement, required by § 1283, has been properly made.
Was it competent for the State to prescribe, as a condition of the right of the Textbook Company to do interstate business in Kansas, such as was transacted with Pigg, that it should prepare, deliver, and file with the Secretary of State the Statement mentioned in § 1283? The above question must be answered in the negative upon the authority of former adjudications by this court. A case in point is Crutcher v. Kentucky, 141 U. S. 47, 56, 57, often referred to and never qualified by any subsequent decision. That case arose under a statute of Kentucky regulating agencies of foreign express companies. The statute required as a condition of the right
of the agent of an express company, not incorporated by the laws of Kentucky, to do business in that Commonwealth, to take out a license from the State Auditor, and to make and file in the Auditor's office a statement showing that the company had an actual capital of a given amount, either in cash. or in safe investments, exclusive of costs. These requirements were held by this court to be in violation of the Constitution of the United States in their application to foreign corporations engaged in interstate commerce. The court said: "If the subject was one which appertained to the jurisdiction of the State legislature, it may be that the requirements and conditions of doing business within the State would be promotive of the public good. It is clear, however, that it would be a regulation of interstate commerce in its application to corporations or associations engaged in that business; and that is a subject which belongs to the jurisdiction of the National and not the State legislature. Congress would undoubtedly have the right to exact from associations of that kind any guarantees it might deem necessary for the public security, and for the faithful transaction of business; and as it is within the province of Congress, it is to be presumed that Congress has done, or will do, all that is necessary and proper in that regard. Besides, it is not to be presumed that the State of its origin has neglected to require from any such corporation proper guarantees as to capital and other securities necessary for the public safety. 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." Again, in the same case: "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." Further, in the same case: "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 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. But taxes or license fees in good faith imposed exclusively on express business carried on wholly within the State would be open to no such objection." To the same general effect are many other cases. Robbins v. Shelby County Taxing District, 120 U. S. 489; Leloup v. Mobile, 127 U. S. 640; Stoutenburgh v. Hennick, 129 U. S. 141; Lyng v. Michigan, 135 U. S. 166; McCall v. California, 136 U. S. 104; Norfolk & Western Railroad Co. v. Pennsylvania, 136 U. S. 114; Western Union Tel. Co. v. Kansas, 216 U. S. 1. It is true that the statute does not, in terms, require the corporation of another State engaged in interstate commerce to take