Argument for Plaintiff in Error.

217 U.S.

nullified through a destruction of judicial relief. Ex parte Young, 209 U. S. 123.

The Kansas statute clearly operates to deny to the plaintiff the full and equal protection of the laws. The plaintiff is within its constitutional rights in declining to comply with the requirements thereof. Cooper Mfg. Co. v. Ferguson, 113 U. S. 727, 736. With the exception of the Supreme Court of Kansas it has been uniformly held by state courts that such a law is unconstitutional. Underwood Typewriter Co. v. Pigott, 60 W. Va. 532; S. C., 55 S. E. Rep. 664; Woessner v. Cottam & Co., 47 S. W. Rep. 678; Lane Co. v. City Electric Co., 72 S. W. Rep. 425; Texas Railway Co. v. Davis, 54 S. W. Rep. 381; Coweta Fertilizer Co. v. Brown, 163 Fed. Rep. 162, 168; Greek-American Sponge Co. v. Drug Co., 124 Wisconsin, 469, 476; Haldy v. Tomoor-Haldy Co., 4 Ohio Decs. 118; Hargraves Mills v. Harden, 25 N. Y. Misc. 665; Coit & Co. v. Sutton, 102 Michigan, 324; Gunn v. Sewing Mach. Co., 57 Arkansas, 24; Hovey's Estate, 198 Pa. St. 385; Savage v. Atlanta Home Ins. Co., 66 N. Y. Supp. 1105; S. C., 55 App. Div. 20.

The right to contract within a State implies necessarily the right to use the courts of the State to enforce the contract. Von Hoffman v. Quincy, 4 Wall. 535.

While a State is competent to regulate the procedure of its courts it cannot so regulate them as to discriminate against those who are engaged in interstate commerce by denying to them judicial remedies on terms of absolute equality with other litigants. A State cannot discriminate against citizens or products of other States, Railroad v. Husen, 95 U. S. 465; Minnesota v. Barber, 136 U. S. 313; Brimmer v. Rebman, 138 U. S. 78; Voight v. Wright, 141 U. S. 62; Tiernan v. Rinker, 102 U. S. 123; Guy v. Baltimore, 100 U. S. 434; Welton v. Missouri, 91 U. S. 275; Walling v. Michigan, 116 U. S. 446; nor impose a tax on interstate commerce either by a tax laid on the transportation of the subjects of that commerce, State Freight Tax, 15 Wall. 232, 279; Telegraph Co. v. Texas, 105 U. S. 460, 465; People v. Compagnie &c. Trans

217 U. S.

Argument for Plaintiff in Error.

atlantique, 107 U. S. 59; or by a tax on the receipts derived from that transportation or upon the capital stock of the carrier, Phila. S. S. Co. v. Pennsylvania, 122 U. S. 326; West. Un. Tel. Co. v. Alabama, 132 U. S. 472; Pensacola Tel. Co. v. West. Un. Tel. Co., 96 U. S. 1; Ratterman v. West. Un. Tel. Co., 127 U. S. 411; West. Un. Tel. Co. v. Pennsylvania, 128 U. S. 39; West. Un. Tel. Co. v. Massachusetts, 125 U. S. 530; Fargo v. Michigan, 121 U. S. 230; California v. Central Pacific, 127 U. S. 1; Gloucester Ferry Co. v. Pennsylvania, 114 U. S. 196; or by means of a license fee on the privilege or occupation of engaging in interstate commerce, Robbins v. Shelby Co., 120 U. S. 489; Corson v. Maryland, 120 U. S. 502; Leloup v. Mobile, 127 U. S. 640; Harman v. Chicago, 147 U. S. 396; Brennan v. Titusville, 153 U. S. 289; Moran v. New Orleans, 112 U. S. 69; Asher v. Texas, 128 U. S. 129; McCall v. California, 136 U. S. 104; N. & W. R. Co. v. Pennsylvania, 136 U. S. 114; Crutcher v. Kentucky, 141 U. S. 47; Henderson v. Mayor, 92 U. S. 259; Pickard v. Pullman Co., 117 U. S. 34; Webber v. Virginia, 103 U. S. 344; Stoutenburgh v. Hennick, 129 U. S. 141; nor can a State in any way attempt to regulate interstate commerce by imposing burdensome conditions under which it may be conducted whether by fixing rates, Wabash Ry. Co. v. Illinois, 118 U. S. 557; Covington Bridge Co. v. Kentucky, 154 U. S. 204, or preventing the introduction of certain articles of commerce, Bowman v. Chicago Ry. Co., 125 U. S. 465; Leisy v. Hardin, 135 U. S. 100; or by requiring telegraphic messages to be sent in the order received and delivered by messengers within one mile of the office, West. Un. Tel. Co. v. Pendleton, 122 U. S. 347; or by requiring common carriers to give equal passenger accommodations without distinction on account of race or color. Hall v. DeCuir, 95 U. S. 485.

A State may not destroy a Federal right by a threatened denial of judicial relief in the courts of the State. Ex parte Young, 209 U. S. 123; Cotting v. Stockyards, 183 U. S. 79.

To the extent that this plaintiff conducts its business VOL. CCXVII-7

Argument for Plaintiff in Error.

217 U. S.

through the mails, it is not important whether the subjectmatter, which is transmitted from Pennsylvania to Kansas, was an article of commerce or not, or whether its mere transmission was strictly interstate commerce, for the State of Kansas was powerless to invade the exclusive power of the Federal Government to determine what should and what should not be transported through the mails. See Ex parte Jackson, 96 U. S. 727; In re Rapier, 143 U. S. 110; Horner v. United States (No. 1), 143 U. S. 207.

As to how the words in § 1260 "doing business" or "engaged in business" have been judicially construed by the courts of other States than Kansas, see Bertha Zinc Co. v. Clure, 7 Misc. Rep. (N. Y.) 23; Washington Mills Co. v. Roberts, 8 App. Div. (N. Y.) 201; Southern Cotton Oil Co. v. Roberts, 25 App. Div. (N. Y.) 13; Soda Fount Co. v. Roberts, 20 App. Div. (N. Y.) 585; Kellogg Newspaper Co. v. Roberts, 30 App. Div. (N. Y.) 150; Ware Cattle Co. v. Anderson et al., 77 N. W: Rep. 1026; Holder v. Aultman, 169 U. S. 81; Sullivan v. Sullivan Timber Co., 15 So. Rep. 941; Toledo Commercial Co. v. Glen Mfg. Co., 45 N. E. Rep. 197; Mearshon & Co. v. Lumber Co., 187 Pa. St. 12; Wolff-Dryer Co. v. Bigler & Co., 192 Pa. St. 466; Cooper Mfg. Co. v. Ferguson, 113 U. S. 727; David & Rankin Mfg. Co. v. Dix, 64 Fed. Rep. 406-412; Brewing Co. v. Roberts, 22 App. Div. (N. Y.) 282; Smith Co. v. Roberts, 27 App. Div. (N. Y.) 455; Beard v. Publishing Co., 71 Alabama, 60; Murphy Varnish Co. v. Connell, 10 Misc. Rep. (N. Y.) 553; Harlan & Hollingsworth Co. v. Campbell, 139 N. Y. 68; Chicago Stock Yards Company v. Roberts, 154 N. Y. 1; Havens & Geddes Co. v. Diamond, 93 Ill. App.

557.

These cases hold that a corporation incorporated to do a manufacturing business, and exercising all its corporate franchises in the State where it is incorporated and manufactures the article which it sells in the State where it is incorporated, although it sends agents to other States to sell its goods, does not engage in business in the other States.

It can only be stated "doing business" in other States when it opens its manufacturing establishment and manufactures its goods in another State.

There was no appearance or brief filed for defendant in error.

MR. JUSTICE HARLAN delivered the opinion of the court.

This action was brought by the International Textbook Company in one of the courts of Kansas-the court of Topeka-to recover from Pigg, the defendant in error, the sum of $79.60 with interest as due the plaintiff under a written contract between him and that company made in 1905. The case was tried upon agreed facts and judgment was rendered in favor of the defendant for his costs. That judgment was affirmed in a state District Court, which held that the plaintiff was not entitled to maintain the action, and the latter judgment was affirmed by the Supreme Court of Kansas.

It is assigned for error that the final judgment-based upon certain provisions of the statutes of Kansas, to be presently referred to--was in violation of the company's rights under the Constitution of the United States.

The facts agreed to-using substantially the language of the parties-make substantially the following case:

The International Textbook Company is a Pennsylvania corporation, and the proprietor of what is known as the International Correspondence Schools at Scranton in that Commonwealth. Those Schools have courses in Architecture, Chemistry, Civil, Mechanical, Electrical and Steam Engineering, English Branches, French, German, Mathematics and Mechanics, Pedagogy, Plumbing, Heating, Telegraphy and many other subjects. It has a capital stock, and the profits arising from its business are distributed in dividends or applied otherwise as the company may elect. The executive officers of the company, as well as the teachers and instructors employed by it, reside and exercise their respective functions at Scranton.

Its business is conducted by preparing and publishing instruction papers, textbooks and illustrative apparatus for courses of study to be pursued by means of correspondence, and the forwarding, from time to time, of such publications and apparatus to students. In the conduct of its business the company employs local or traveling agents, called SolicitorCollectors, whose duties are to procure and forward to the company at Scranton, from persons in a specified territory, on blanks furnished by it, applications for scholarships in its Correspondence Schools, and also to collect and forward to the company deferred payments on scholarships. In order that applicants may adopt applications to their needs each Solicitor-Collector is kept informed by correspondence with the company of the fees to be collected for the various scholarships offered and of the contract charges to be made for cash or deferred payments, as well as the terms of payment acceptable to the company. In conformity with the contract between the company and its scholars, the scholarship and instruction papers, text-books and illustrative apparatus called for under each accepted application are sent by the company from Scranton directly to the applicant and instruction is imparted by means of correspondence through the mails between the company at its office in that city and the applicant at his residence in another State.

During the period covered by the present transaction the company had a Solicitor-Collector for the territory that included Topeka, Kansas, and he solicited students to take correspondence courses in the plaintiff's schools. His office in Kansas was procured and maintained at his own expense, for the purpose of furthering the procuring of applications for scholarships and the collection of fees therefor. The company had no office of its own in that State. The Solicitor-Collector was paid a fixed salary by the company and a commission on the number of applications obtained and the collections made. He sent daily reports to the company for his territory, those reports showing that for March, 1906, the aggregate collections