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Statement of the Case.

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foreign government, or any association or partnership acting under the laws of any foreign government, there shall be filed in his office a statement setting forth the act of incorporation or charter, or the articles of association, or by-laws under which they act, and setting forth the matters required by the preceding section of this act to be specified; and satisfactory evidence shall be furnished to the auditor that such company has on deposit in the United States, or has invested in the stock of some one or more of the United States, or in some safe dividend-paying stocks in the United States, the sum of $150,000, which statement shall be verified by the oath of the president of such company, its general agent in the United States, or the agent applying for such license; and upon the due filing of such statement, and furnishing the auditor with satisfactory evidence of such deposit or investment, it shall be his duty to issue such license to the agent or agents applying for the same.

“Sec. 4. The statements required by the foregoing sections shall be renewed in each year thereafter, either in the months of January or July; and the auditor, on being satisfied that the capital or deposit, consisting of cash securities or investments as provided in this act, remain secure to the amount of $150,000, shall renew such license.”

“SEC. 8. Any person who shall set up, establish, carry on, or transact any business for any transportation or express company not incorporated by the law of this State, without having obtained license as by this act required, or who shall in any way violate the provisions of this act, shall be fined for every such offence not less than one hundred nor more than five hundred dollars, at the discretion of a jury, to be recovered as like fines in other cases.

." “SEC. 9. For any license issued by the auditor under this act, and for each renewal thereof, he shall be allowed the sum of $2.50, to be paid by the agent or company taking out such license.” Myer's Supplement, 228.

An amendatory act passed in 1866 raised the license fee to five dollars, and imposed a fee of five dollars for filing copy of charter, and ten dollars for filing an original or annual

Statement of the Case.

statement. The Supreme Court of Kentucky in disposing of the case gave the following opinion (Crutcher v. Commonwealth, 40 Amer. & Eng. Railroad Cases, 29; 12 So. West. Reporter, 141):

“ It seems to us that the case of Woodward against Tho Commonwealth, in which the statute appears in full, (decided by this court at its last term,) determines the question now presented. Counsel for the appellant now claims that the statute of this State is invalid, as its effect is to regulate commerce among the several States. The agent of the express company was fined for not paying to the auditor a fee of five dollars, or rather, for failing to take out a license required by the act regulating the agencies of foreign express companies, passed in March, 1860, and amended by the act of 1866. That the company of which the appellant is agent is a corporation created by the laws of New York, doing business in this State as a carrier of goods, wares and merchandise is conceded, and that it transports goods, etc., out of the State into other States, and all other species of property usually incident to such transportation is admitted. It appears that at least fifty per cent of the business done by this agent consists in the carrying of goods from the place of his agency, Frankfort, to other States. That the carrying and transportation of goods from one State to another is a branch of interstate commerce is not controverted, but it is claimed that there is nothing in the legislation imposing on those who desire to act as the agents of this foreign corporation the burden of paying to the auditor the fee of five dollars for recording his agency, or rather, for issuing him his license to act as such.

“The statute was enacted for the benefit of the citizens of the State, under which the auditor is required to have satisfactory evidence of the ability and solvency of the corporation to do that which it has undertaken to do by virtue of its act of incorporation. Those who intrust to its custody the transportation of their property are entitled to some security that its undertaking will be performed, and we find no law of

1 35 Amer. and Eng. Railroad Cases, 498; 9 Ky. Law Reporter, 670.

Argument for Defendant in Error.

Congress, or any constitutional provision, that would deny to the State the right to impose such a burden upon those who undertake the discharge of such responsible duties. There is no discrimination made between corporations doing a like business; and the State, although the appellant's company is a foreign corporation, has the right to license the business and calling of this agent as it would that of the lawyer or merchant whose business is confined to the State alone.”

The court then referred to the cases of Smith v. Alabama, 124 U. S. 465, and to Nashville, Chattanooga &c. Railway v. Alabama, 128 U. S. 96, and concluded as follows: “We cannot perceive how any burden has been placed by the State upon interstate commerce by the provisions of the enactment in question, and must therefore affirm the judgment.”

Mr. W. W. Macfarland for plaintiff in error.

Mr. James P. Helm (with whom was Mr. Helm Bruce on the brief) for defendant in error.

We suppose that the only serious question involved in the case is, as to whether or not the State has the power to require that all express companies doing business in the State shall have an actual capital of at least $150,000. If it has the power to require this, then it unquestionably has the power to require that some officer of the State shall be satisfied of this fact by the filing with him of a sworn statement showing the fact. And we suppose there cannot be any question but that the State has the right to require that the charter of the corporation doing business in the State, and which charter fixes the rights and powers, and often the liabilities of the corporation, shall be made known to the people of this State who are to deal with the corporation, by filing a copy of said charter in a public office of the State.

And we understand it to be the settled law that where a State has the right to make such requirements as these, which call for the performance of duties on the part of state officers, it has also the right to require that reasonable fees shall be paid by the party seeking the performance of these offices, to

Argument for Defendant in Error.

cover the cost and to make reasonable compensation to the officers for the services performed. Smith v. Alabama, 124 U. S. 465.

We do not deny that the business done by an express company is commerce; nor that it is well settled that a State cannot charge a person engaged in interstate commerce, for the privilege of coming into the State to do business. And we are familiar with the line of decisions holding that a State cannot tax the occupation of carrying on interstate commerce. But the great majority of these cases have been cases involving the validity of tax laws, which are manifestly not laws enacted by virtue of the State's police power.

As these cases involving the validity of tax laws could not, in the very nature of the case, involve a consideration of the nature and extent of the State's police power, except by way of illustration, therefore, inasmuch as the present case is not a tax case, but is a case in which the statute of the State is claimed to be valid under the police power of the State, we derive more assistance and instruction from the decisions of this court, wherein the court has been called upon to decide expressly whether or not a given act by a State was a valid exercise of the police power of the State, than we do from the class of cases above referred to, where the question of police power was not and could not have been directly involved.

For these reasons it seems to us that the cases of Brown v. Maryland, 12 Wheat. 419; The Passenger Cases, 7 How. 283 ; State Freight Tax Case, 15 Wall. 232; Railroad Gross Receipts Case, 15 Wall. 284; Florida Telegraph Case, 96 U. S. 1; Texas Telegraph Case, 105 U. S. 460; Massachusetts Telegraph Case, 125 U. S. 530; Leloup v. Mobile, 127 U. S. 640; Moran v. New Orleans, 112 U. S. 69; Gloucester Ferry Co. v. Pennsylvania, 114 U. S. 196; and Picard v. Pullman Car Co., 117 U. S. 34, are not nearly so instructive in the consideration of the case at bar as are such cases as New York v. Miln, 8 Pet. 119; The License Cases, 5 How. 504; Smith v. Alabama, 124 U. S. 465; Patterson v. Kentucky, 97 U. S. 501; Railroad Company v. Alabama, 128 U. S. 96, and others of that character.

Argument for Defendant in Error.

However courts and text-writers may differ as to the definition of the police power of a State, all agree that such a power does exist in the States; that it was never surrendered to Congress; that it is absolutely essential to the existence of the States, and that it embraces the power to make all needful regulations for the protection of its citizens. It is well that no constitution, or fixed law of any kind, ever attempted to define this power. It must always be sufficient to meet the exigencies of the times, whatever they may be, or the government must perish; and, as no human mind can comprehend the future, none can tell what may or may not become necessary to meet its requirements. The habits and customs of people, their pursuits, their manner of conducting business, their means of communication, differ so widely at different times that it is absolutely necessary that governments should have a power to meet the exigencies of the times. And in a government like ours, unique in history, where in every State there are two coexistent governments, where every citizen is at one and the same time the citizen of two governments, the subject of two sovereignties; and when we recollect that there is no isolated fact, no solitary event, but that every occurrence is connected directly or collaterally with countless others, we say, that when these considerations are remembered, one cannot fail to recognize the danger of testing by extreme cases these independent powers of distinct sovereignties governing the same people at the same time; the danger in insisting that the exercise in a certain manner of a given power by one of these governments is necessarily invalid, because it may be seen that by the application of the same power in an extreme case of kindred nature some object might be effected which is more legitimately the subject of a different power in the other government.

Whatever may be the correct statement of the view now taken by this court on the question of the exclusiveness of the power of Congress over interstate commerce, it is, of course, remembered that at one time the majority of this court held that the grant of power to Congress to regulate interstate commerce did not exclude the power of the States in that

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