or not, may invoke the protection of the courts against any actual interference with interstate commerce where such interferences affect injuriously their private interests. In case they constitute a corporation, the preventive remedy may usually be obtained through corporate agents and in the corporate name. Although a state may, as a general rule, arbitrarily prohibit foreign corporations from transacting business within its territory, and may withdraw its license to do so at any time, yet there are instances where an absolute prohibition would have the substantial results of an interference or obstruction to interstate commerce within the meaning of the constitution. Thus, in many cases of railroad companies, it would be practically impossible to establish and maintain a line of any considerable length except through a corporate organization, or to make it subserve great public or even private interests without extending it beyond the boundaries of a single state. If in this or other instances, the right of acting in a corporate capacity were necessary as a means of carrying on any particular branch of commerce between the states, or with foreign countries, the constitution would, without doubt, be construed so as to secure the right. But though the right of acting in a corporate capacity could not be altogether refused, yet any conditions not impossible, or very difficult, of performance could be imposed and any police regulations enforced as in a case of other corporations. A requirement that a foreign corporation shall be reincorporated pursuant to the general laws of the state which it is proposed to enter is not a prohibited interference

1 An act requiring delivery by messengers of telegraphic dispatches, if the persons to whom they are addressed, or their agents, reside within one mile of the station, or within the city or town within which it is located, was held invalid with respect to dispatches to be delivered in other states. W. U. Tel. Co. v. Pendleton, 122 U. S. 347; 7 S. Ct. 1126.

with commerce even where a total exclusion might be considered unconstitutional.1

The right of telegraph companies incorporated under the laws of any state to construct, maintain and operate their lines over any portion of the public domain, over any military or post road, and across the navigable streams is secured by act of congress.2

By filing with the postmaster-general its written acceptance of the restrictions and obligations prescribed by the act, a telegraph company becomes a federal agency; and as an authorized instrument of interstate commerce is exempt from state interference or obstruction from carrying on its business anywhere in the United States.8

1 Stout v. Sioux City, etc., R. R. Co., 8 Fed. Rep. 794. See Moore v. Chicago, etc., Ry. Co., 21 Fed. Rep. 817; Ins. Co. v. Morse, 20 Wall. 445. The railroad service known as "switching” is local, and the charge made for it is not part of the through rate of transportation fixed beforehand, and not having reference to interstate commerce may be regulated by the State of Chicago M. & St. P. R. Co. v. Becker, 32 F. 849.

2 U. S. Rev. Stat. 5263-8.

Pensacola Tel. Co. v. Western Un. Tel. Co., 96 U. S. 1; Am. Un. Tel. Co. v. Westen Union Tel. Co., 67 Ala. 26.

§ 1089.

1090.

CHAPTER XL.

TAXATION OF CORPORATIONS.

Corporations and individuals entitled to similar treatment.
The place of taxation.

1091. Taxation of foreign corporations.

1093. Taxation of shares of capital stock and of property of corpora

tion distinguished.

1094. The policy of certain states.

1095. The situs of shares and corporate bonds for taxing purposes. 1096.

Shares in national banks.

1097. The proper method of taxing the property of banking corpora

tions.

1098. Banks may be required to furnish lists for taxing purposes. 1099. Requirements of national bank act.

1102. Must not conflict with the exercise of federal agencies.

1103. Obligations of the federal government are agencies.

1104. Municipal bonds are governmental agencies.

1105. Distinction between federal agency and property of agent.

1106. Interstate interests of corporations.

1107. The form which the tax assumes immaterial.

1108. Property stored at place of shipment.

1109. Traffic and property distinguished.

1110. Franchises granted by the states subject to taxation.

1111. Need not be measured by its property value.

1112. Taxation of land grants.

1113. Both franchise and property may be taxed. 1114.

Double taxation.

1115. Various methods of taxing corporate property. 1116. Over-valuation not alone a ground of objection,

1117. Taxation of railroad property in general.

1118. The Connecticut scheme of railroad taxation.

1121. Effect of consolidation upon exemption-Subsequent laws. 1122. Construction of exemption as affecting shares.

§ 1089. Corporations and individuals entitled to similar treatment. In the matter of taxation, corporations should not be allowed to fare any better or worse than individuals. The appropriation to be made of the taxes when collected must, however, be public or the consideration fails, and to take property for other than public purposes would be a violation of the constitution or, not to make too fine a point, would be "none the less robbery because it is done under the forms of law and is called taxation."1

Subject, however, to the restrictions of the federal constitution and the various provisions found in the state constitutions designed to prevent discriminations, to secure equalization and to prevent extravagance, no attempt to define the extent of this essential function of all governments would be successful.

"Taxation originates in the financial necessities of government. Those necessities are in themselves illimitable by human agency. The means of the supply to be adequate must be illimitable too. It cannot be foreseen by the framers of the constitution who would limit the power of taxation what may be the necessities of the government at a given time, or under the pressure of attack from without or insubordination within its borders, or what pecuniary means it may need in its possible struggle with those difficulties which it is the very purpose of organized government to meet and overcome. To assure the public safety therefore dictates that the state be clothed with power to command its entire material resources.2

1 Justice MILLER, in Loan Association v. Topeka, 20 Wall. 655. See also, Parkersburg v. Brown, 106 U. S. 487; Allen v. Inhabitants of Jay, 60 Me. 124; Lowell v. Boston, 11 Mass. 454; Jenkins v. Andover, 103 Mass. 94.

2 WALLACE, C. J., in Stockton & V. R. R. Co. v. Stockton, 41 Cal. 148, 165, 166.

Taxing power is co-extensive with sovereignty. Analogous to the right of

§ 1090. The place of taxation.-The power to tax is of right and necessity confined to the property within the territorial boundary of the state exercising it. A state may make whatever discriminations against foreign corporations and in favor of its own citizens it chooses, and may wholly exclude the former from the right to transact business within it, or subject the privilege of doing so to such exactions in the way of fees, licenses, taxes and furnishing security to its citizens as it may deem proper, subject only to the constitutional provisions applicable to the subject, and to the condition that it shall not interfere with the performance of the functions of the national government.

The power of the state to tax corporate franchises and property does not depend upon the fact that such franchises were conferred by the state exercising the taxing power.

eminent domain, and having its foundation in the same inherent sovereignty of the state, is that of providing revenues to defray the expenses of the government and carrying on its operations by taxation.

No contracts are impaired by the imposition of burdens of government upon persons and property, and there are no limitations upon the power, except that no discriminations shall be made in favor of or against any individual or class, and that the purpose shall be public. If any "due process of law" is necessary, the requirement is satisfied by a fair ascertainment or assessment in pursuance of general laws of the amount for which each citizen and each species of property shall be chargeable and of the time and manner of payment. The only consideration or compensation due to the taxpayer on the part of the state for its exercise is the equal protection and benefit of the laws.

These advantages are the equivalent for the taxes he pays and the other public burdens he assumes in common with others.

Distinction between the right of taxation and of eminent domain. Between the right of taxation and of taking private property for public use, there is this difference: "Private property taken for public use by the right of eminent domain is taken, not as the owner's share of contribution to a public burthen, but as so much beyond his share. Special compensation is therefore to be made in the latter case, because the government is a debtor for the property so taken; but not in the former, because the payment of taxes is a duty, and creates no obligation to repay otherwise than in the proper application of the tax." People v. Brooklyn, 4 Comst. 419, per RUGGLES, J. See also Litchfield v. Vernon, 41 N. J. L. 123; Gilman v. Sheboygan, 2 Black. 510.