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to $10,776,000, but none of the property is in Massachusetts except current bank deposits and a certificate for $80,000 of stock in another Michigan corporation. It is engaged in the mining and refining of cop per in Michigan, which is sold for delivery in the several states of the United States and in foreign countries. The United Metals Selling Company, a New Jersey corporation, with its principal office in New York city, and with no office in Massachusetts, has the exclusive agency for marketing the Baltic Mining Company's copper, it making no sales directly itself. Considerable quantities of the copper are sold for delivery in Massachusetts, as well as in other states, and transported from the Michigan smelter to the purchaser. In ex-in Massachusetts, of which approximately ceptional instances sales are made in Massachusetts [80] for delivery there, but this is out of the usual course of business, not more than 5 per cent of the total sales being made, the larger part being regularly consummated in New York city. The petition was brought to recover an excise tax of $500 imposed by the commonwealth, pursuant to § 56 of the act, and paid by the company, and was dismissed by the supreme judicial court of Massachusetts. 207 Mass. 381, 93 N. E. 831.

Pennsylvania, and filled either in New York or in Pennsylvania, and the goods being billed directly to the purchaser. Except in intrastate deliveries by messenger, [81] the company uses public carriers in the trans| portation of the goods, and a large percentage of the total sales require transportation from the New York or Pennsylvania factories into other states. The stock on hand in the Boston store, the fixtures and the current bank deposits, represent the tangible property in Massachusetts, and amount to about $100,000. The company maintains fourteen places of business other than the ones in Pennsylvania and Massachusetts, located in New York and other states. Ten per cent of the sales are made

The S. S. White Dental Manufacturing Company is a Pennsylvania corporation, engaged in manufacturing and buying and selling artificial teeth and dental supplies, with an authorized capital stock of $1,000,000, and with its principal office in Philadelphia. Its assets aggregate $5,711,718.29. It has a usual place of business in Boston, consisting of large salesrooms, stockrooms, offices, and storerooms, occupied under lease, where it keeps a supply of goods displayed for sale and in stock. Books are kept here, a New England sales agent is in charge, and fifty-four persons are employed, twelve being salesmen who travel through the New England states, except Connecticut and the maritime provinces; but no manufacturing is done in Massachusetts. It sells goods over the counter from its Boston store and also for delivery in Massachusetts by messenger, mail, and express, 50 per cent of the sales made at that store being to persons residing in Massachusetts, and 50 per cent for delivery to persons residing outside of the state. Goods sold from the Boston stock for delivery other than over the counter or by mail or messenger are billed from the Boston salesrooms directly to the purchaser as consignee, from the company as consignor. Orders are also accepted at the Boston salesroom for delivery from the New York and Pennsylvania factories, such orders being sent to the principal office in

one half are for delivery in that state. The company complied with the requirement of the laws relating to foreign corporations for ten years, and seeks to recover an excise tax of $200, levied pursuant to the statute, and paid by it. The supreme judicial court of Massachusetts held that the act was valid, and dismissed the petition. 212 Mass. 35, 98 N. E. 1056, Ann. Cas. 1913 C, 805.

The act provides (§ 54) for the filing of a certificate annually by foreign corporations, showing their authorized capital stock and assets and liabilities, and (§ 55) that such certificate shall be accompanied by an auditor's sworn statement, and shall be submitted to the commissioner of corporations, who shall assess an excise tax upon the corporation, in accordance with the provisions of § 56 of the act, and that the certificate shall not be filed until approved by him and the tax paid.

Section 56 reads:

"Every foreign corporation shall, in each year, at the time of filing its annual certificate of condition, pay to the treasurer and receiver general, for the use of the commonwealth, an excise tax, to be assessed by the tax commissioner, of 10 of 1 per cent of the par value of its authorized capital stock as stated in its annual certificate of condition; but the amount of such excise tax shall not in any one year exceed the sum of $2,000."

[82] It is further provided (§ 58) for notice to foreign corporations failing to file their proper certificates, and thereafter for the forfeiture and collection of penalties, and for the issuance of injunctions until the payment of such penalties and the filing of such certificates.

The specific objections of the plaintiffs in error to the imposition of this tax under the facts shown in the records are threefold: First, the tax is a regulation of interstate commerce, in that it imposes a

direct burden upon that portion of the | Ann. Cas. 1912B, 1312; United States Exp. business and capital of the plaintiffs in Co. v. Minnesota, supra. error which is devoted to interstate commerce; second, the tax is in violation of the due process of law clause, because it attempts to impose taxes upon property beyond the jurisdiction of the commonwealth of Massachusetts; and third, the tax denies to the plaintiffs in error the equal protection of the law.

It is well settled and requires no review of the decisions of this court to that effect that the power of Congress over interstate commerce is supreme under the Federal Constitution, and that the states may not burden such commerce, it being the purpose of the Constitution of the United States to bring commerce of this character under one supreme control, and to vest the exercise of authority over it in the general government. It is equally well settled that forms of regulation prohibited to the state by the Constitution may consist of efforts to tax the carrying on of such commerce, and of attempted levies of taxes upon the receipts of interstate commerce as such. Galveston, H. & S. A. R. Co. v. Texas, 210 U. S. 217, 52 L. ed. 1031, 28 Sup. Ct. Rep. 638; Western U. Teleg. Co. v. Kansas, 216 U. S. 1, 54 L. ed. 355, 30 Sup. Ct. Rep. 190; Pullman Co. v. Kansas, 21. U. S. 56, 54 L. ed. 378, 30 Sup. Ct. Rep. 232; Minnesota Rate Cases (Simpson v. Shepard) 230 U. S. 352, 400, 57 L. ed. 1511, 1541, 33 Sup. Ct. Rep. 729, and previous cases in this court therein cited.

While this is true, other equally wellestablished principles must be borne in mind in considering the validity of a state tax attacked upon grounds of unconstitutionality. The mere fact that a corporation is engaged in [83] interstate commerce does not exempt its property from state taxation. United States Exp. Co. v. Minnesota, 223 U. S. 335, 344, 56 L. ed. 459, 464, 32 Sup. Ct. Rep. 211. It is the commerce itself which must not be burdened by state exactions which interfere with the exclusive Federal authority over it. A resort to the receipts of property or capital employed, in part at least, in interstate commerce, when such receipts or capital are not taxed as such, but are taken as a mere measure of a tax of lawful authority within the state, has been sustained. Maine v. Grand Trunk R. Co. 142 U. S. 217, 35 L. ed. 994, 3 Inters. Com. Rep. 807, 12 Sup. Ct. Rep. 121, 163; Provident Inst. v. Mas'sachusetts, 6 Wall. 611, 18 L. ed. 907; Hamilton Mfg. Co. v. Massachusetts, 6 Wall. 632, 18 L. ed. 904; Flint v. Stone Tracy Co. 220 U. S. 107, 162-165, 55 L. ed. 389, 417-419, 31 Sup. Ct. Rep. 342,

The right of a state to exclude a foreign corporation from its borders, so long as no principle of the Federal Constitution is violated in such exclusion, has been repeatedly recognized in the decisions of this court, and the right to prescribe conditions upon which a corporation of that character may continue to do business in the state, unless some contract right in favor of the corporation prevents, or some constitutional right is denied in the exclusion of such corporation, is but the correlative of the power to exclude. Hammond Packing Co. v. Arkansas, 212 U. S. 322, 343, 53 L. ed. 530, 541, 29 Sup. Ct. Rep. 370, 15 Ann. Cas. 645; Southern P. Co. v. Denton, 146 U. S. 202, 36 L. ed. 942, 13 Sup. Ct. Rep. 44; Barron v. Burnside, 121 U. S. 186, 30 L. ed. 915, 1 Inters. Com. Rep. 295, 7 Sup. Ct. Rep. 931; Home Ins. Co. v. Morse, 20 Wall. 445, 22 L. ed. 365; Herndon v. Chicago, R. I. & P. R. Co. 218 U. S. 135, 54 L. ed. 970, 30 Sup. Ct. Rep. 633. For example, a state may not say to a foreign corporation, you may do business within our borders if you permit your property to be taken without due process of law; or you may transact business in interstate commerce subject to the regulatory power of the state. To allow a state to exercise such authority would permit it to deprive of fundamental rights those entitled to the protection of the Constitution in every part of the Union. Having these general principles [84] in mind, we will proceed to a consideration of the statute of Massachusetts directly involved in these

cases.

The supreme judicial court of Massachusetts, in considering the character of the tax assessed under the statute of 1909, said (207 Mass. 388):

"The required payment is strictly of an excise tax, and not of a tax upon property. . . . This excise tax is for the commodity or privilege of having an establishment for business in Massachusetts, with the protection of our laws and the financial and other advantages of a situation here."

We have no fault to find with the conclusion that this is an excise tax. See also Provident Inst. v. Massachusetts, 6 Wall.

611, 18 L. ed. 907; Hamilton Mfg. Co. v. Massachusetts, 6 Wall. 632, 18 L. ed. 904,

in which this court had occasion to consider the taxing system of Massachusetts. That the state may impose a tax upon a corporation, foreign or domestic, for the privilege of doing business within its borders, is undoubted; and such has long been the legislative policy of the commonwealth of Massachusetts, as appears from the his

tory of legislation set forth in the opinions | in the cases last cited. Construing the act in question, the supreme judicial court of Massachusetts has held that it does not apply to corporations engaged in railroad, telegraph, telephone, etc., business, which are taxed on another plan under the provisions of the statute. It is held not to apply to corporations whose business is interstate commerce, or who carry on interstate and intrastate business in such close connection that the intrastate business cannot be abandoned without serious impairment of the interstate business of the corporation. And the statute, it is held, does not apply to corporations which have places of business for the transaction solely of interstate commerce. Atty. Gen. ex rel. Commissioner of Corporations v. Electric Storage Battery Co. 188 Mass. 239, 74 N. E. 467, 3 Ann. Cas. 631. The tax is levied upon the privilege of carrying on business within [85] the state, and not upon property therein which is otherwise taxed.

Kansas. Every case involving the validity of a tax must be decided upon its own facts, and having no disposition to limit the authority of those cases, the facts upon which they were decided must not be lost sight of in deciding other and alleged similar cases. In the Kansas cases the business of both complaining companies was commerce, the same instrumentalities and the same agencies carrying on in the same places the business of the companies of state and interstate [86] character. In the Western U. Teleg. Co. Case, the company had a large amount of property permanently located within the state, and between 800 and 900 offices constantly carrying on both state and interstate business. The Pullman Company had been running a large number of cars within the state, in state and interstate business, for many years. There was no attempt to separate the intrastate business from the interstate business by the limitations of state lines in its prosecution.

An examination of the previous decisions in this court shows that they have been decided upon the application to the facts of each case of the principles which we have undertaken to state, and a tax has only been invalidated where its necessary effect was to burden interstate commerce, or to tax property beyond the jurisdiction of the state. In the cases at bar the business for which the companies are chartered is not, of itself, commerce. True it is that their products are sold and shipped in interstate commerce, and to that extent they are engaged in the business of carrying on interstate commerce, and are entitled to the protection of the Federal Constitution against laws burdening commerce of that character. Interstate commerce of all kinds is within the protection of the Constitution of the United States, and it is not within the authority of a state to tax it by burdensome laws. From the statement of facts it is apparent, however, that each of the corporations in question is carrying on a purely local and domestic business, quite separate from its interstate transactions. That local and domestic busi

It is said, notwithstanding, that this tax is a direct burden upon interstate commerce, and an attempt to tax property beyond the jurisdiction of the state, within the authority of the Kansas cases, Western U. Teleg. Co. v. Kansas, 216 U. S. 1, 54 L. ed. 355, 30 Sup. Ct. Rep. 190; Pullman Co. v. Kansas, 216 U. S. 56, 54 L. ed. 378, 30 Sup. Ct. Rep. 232. These cases have been followed by others similar in character. Ludwig v. Western U. Teleg. Co. 216 U. S. 146, 54 L. ed. 423, 30 Sup. Ct. Rep. 280; Western U. Teleg. Co. v. Andrews, 216 U. S. 165, 54 L. ed. 430, 30 Sup. Ct. Rep. 286; Atchison, T. & S. F. R. Co. v. O'Connor, 223 U. S. 280, 56 L. ed. 436, 32 Sup. Ct. Rep. 216, Ann. Cas. 1913 C, 1050; Meyer v. Wells, F. & Co. 223 U. S. 298, 56 L. ed. 445, 32 Sup. Ct. Rep. 218. In Western U. Teleg. Co. v. Kansas, and Pullman Co. v. Kansas, the statute under which the state of Kansas undertook to levy a charter fee of 10 of 1 per cent of their authorized capital upon the first $100,000 of the capital stock of foreign corporations, and 120 of 1 per cent upon the next $400,000, and for each million or major part thereof, $200, making a tax ofness, for the privilege of doing which the $20,100 against the Western Union Telegraph Company, and $14,800 against the Pullman Company, was declared to be unconstitutional, as having the effect not simply to exert the lawful power of taxing a foreign corporation for the privilege of doing local business, but to burden interstate commerce, and to reach property represented by the capital stock of the companies, which was duly paid in and invested in property in many states, and therefore beyond the taxing jurisdiction of

state has imposed a tax, is real and substantial, and not so connected with interstate commerce as to render a tax upon it a burden upon the interstate business of the companies involved. In these cases the ultimate contention is not that the receipts from interstate commerce are taxed as such, but that the property of the corporations, including [87] that used in such commerce, represented by the authorized capital of the corporations, is taxed, and therefore interstate commerce is unlawfully burdened

by a state statute. While the tax is imposed by taking a percentage of the authorized capital, the agreed facts show that the authorized capital is only a part of the capital of the corporations, respectively. In the Baltic Mining Company Case, the authorized capital is $2,500,000, while the entire property and assets are $10,776,000; and in the White Dental Company Case the authorized capital is $1,000,000, while the assets aggregate $5,711,718.29. Further, the Massachusetts statute limits the tax to a maximum of $2,000. The conclusion, therefore, that the authorized capital is only used as the measure of a tax, in itself lawful, without the necessar effect of burdening interstate commerce, brings the legislation within the authority of the state. So, if the tax is, as we hold it to be, levied upon a legitimate subject of such taxation, it is not void because imposed upon property beyond the state's jurisdiction, for the property itself is not taxed. In so far as it is represented in the authorized capital stock, it is used only as a measure of taxation, and, as we have seen, such measure may be found in property or in the receipts from property not in themselves taxable.

It is further contended that the imposition of the tax denies the equal protection of the laws, and this upon the authority of Southern R. Co. v. Greene, 216 U. S. 400, 54 L. ed. 536, 30 Sup. Ct. Rep. 287, 17 Ann. Cas. 1247. In that case the railway company had gone into the state of Alabama, and, under authority of the state, acquired a large amount of railroad property upon which it paid taxes as well as a license tax imposed by the state. After the payment of all such taxes, and in this condition of affairs, the state undertook to levy upon the railroad company a privilege tax because it was a foreign corporation, not imposing the same tax upon domestic corporations doing precisely the same business. This court held that the railroad company was a person within the meaning [88] of the Constitution, and entitled to the equal protection of the laws, and that by the taxation of its railroad property under such circumstances it was denied the equal protection of the law, no like tax being levied upon domestic corporations. It was said in that case (p.

416):

The conditions existing in the Southern R. Co. v. Greene Case are not presented here. It is true that the plaintiffs in error paid taxes assessed against foreign corporations before the passage of the law of 1909, and that the White Dental Company had a leasehold for storerooms in the state; but we do not find in this situation an acquisition of permanent property, such as was shown in the Greene Case. And there is no question of the continued authority of the state to tax a foreign corporation for the privilege of doing business within its borders, which authority the state possesses so long as it does not violate rights secured by the Federal Constitution. Even if, as plaintiffs in error contend, under the statute, domestic corporations are favored, the statute is not invalid, for no limitation upon the power of a state to exclude foreign corporations requires identical taxes in all cases upon domestic and foreign corporations.

As this statute has been construed by the Supreme Judicial Court of Massachusetts, and applied in these cases, we are unable to find that the tax imposed violates the constitutional rights of the plaintiffs in error. Judgments affirmed.

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The assurance by the attorney general of West Virginia, on behalf of that state, that a commission appointed under a joint resolution of the state legislature is endeavoring to effect a settlement of the controversy, and needs further time to complete its labors, requires the denial of a motion by the commonwealth of Virginia that the Federal Supreme Court proceed at once to settle and determine all the questions left open by it when determining the amount which West Virginia should pay as its equitable share of Virginia's public at the time of its creation as a state. debt, which was assumed by West Virginia [Original jurisdiction of Federal Court, see Supreme Court of the United States, in Digest Sup. Ct. 1908.]

"We have here a foreign corporation within a state, in compliance with the laws of the state, which has lawfully acquired a large amount of permanent and valuable property therein, and which is taxed by a discriminating method not employed as to domestic corporations of the same kind, Submitted October 14, 1913. carrying on a precisely similar business."

[No. 2, Original.]

Decided No

vember 10, 1913.

ON

The facts are stated in the opinion.

N MOTION of the Commonwealth of | is based upon the ground that certain Virginia that the court proceed to a negotiations which have taken place befinal hearing of the questions left open by tween the Virginia Debt Commission repreits decision when determining the amount senting Virginia, and a commission reprewhich West Virginia should pay as its senting West Virginia, appointed in virtue equitable share of the Virginia public of a joint resolution of the legislature of debt, which was assumed by West Virginia that state, adopted in 1913, make it inat the time of its creation as a state. Over- dubitably certain that no hope of an adjustruled and case assigned for final hearing ment exists. But without reviewing the on April 13, 1914. course of the negotiations relied upon, we think it suffices to say that, in resisting the motion, the attorney general of West Virginia, on behalf of that state, insists that the view taken by Virginia of the negotiations is a misapprehension of the purposes of West Virginia, as that state, since the appointment of the commission on its behalf, has been relying upon that commission "to consummate such an adjustment and settlement of said controversy as commend the result of its negotiations to the favorable consideration of the governor Mr. A. A. Lilly, Attorney General of and the legislative branch of its governWest Virginia, and Messrs. V. B. Archer, ment, and thus terminate said controversy, Charles E. Hogg, and John H. Holt | to the satisfaction of her people and the submitted the cause for the state of West Virginia.

Mr. Samuel W. Williams, Attorney General of Virginia, and Messrs. Randolph Harrison and William A. Anderson submitted the cause for the Commonwealth of Virginia. Mr. John B. Moon was on the

brief.

Messrs. Holmes Conrad and Sanford Robinson submitted the cause for the bondholding creditors.

to

commonwealth of Virginia, and upon the principles of honor and justice to both states, and in fairness to the holders of the

Mr. Chief Justice White delivered the debt [91] for whose benefit this controversy opinion of the court:

is still pending." The attorney general further stating that, in order to accomplish the results just mentioned, a subcommittee of the Commission of West Virginia has been and is engaged in investigating the whole subject with the purpose of preparing a proposition to be submitted to the Vir ginia Debt Commission, to finally settle the whole matter, and that a period of six months' time is necessary to enable the committee to complete its labors.

Having regard to these representations, we think we ought not to grant the motion

In March, 1911 (Virginia v. West Virginia, 220 U. S. 1, 55 L. ed. 353, 31 Sup. Ct. Rep. 330), our decision was given "with respect to the basis of liability and the share of the principal of the debt of Virginia that West Virginia assumed." In view, however, of the [90] nature of the controversy, of the consideration due the respective states, and the hope that by agreement between them further judicial action might be unnecessary, we postponed proceeding to a final decree, and left open the question of what, if any, interest to proceed at once to consider and dewas due, and the rate thereof, as well as the right to suggest any mere clerical error which it was deemed might have been committed in fixing the sum found to be due upon the basis of liability which was settled. In October, 1911, we overruled without prejudice a motion made by Virginia to proceed at once to a final determination of the cause on the ground that there was no reasonable hope of an amicable adjustment. Virginia v. West Virginia, 222 U. S. 17, 56 L. ed. 71, 32 Sup. Ct. Rep. 4.

The motion on behalf of the state of Virginia now before us is virtually a reiteration of the former motion to proceed, and

termine the cause, but should, as near as we can do so consistently with justice, comply with the request made for further time to enable the commissioners of West Virginia to complete the work which we are assured they are now engaged in performing for the purpose of effecting a settlement of the controversy. As, however, the granting of six months' delay would necessitate carrying the case possibly over to the next term, and therefore be in all probability an extension of time of more than a year, we shall reduce somewhat the time asked, and direct that the case be assigned for final hearing on the 13th day of April next, at the head of the call for that day.

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