Argument for Defendant in Error.

212 U. S.

What would be a just or unjust amendment or alteration of the laws governing corporate privileges, under this constitutional provision, is and must be a question for the state court, and is not a Federal question.

The Supreme Court of Arkansas has held that this act is valid, under the constitution of Arkansas. Hartford Ins. Co. v. State, 76 Arkansas, 303.

On the hearing of this cause below, the Supreme Court of Arkansas necessarily, in holding that §§ 8 and 9 were valid, held that their enactment was within the constitutional power of amendment reserved to the State. The highest court of a State is the tribunal of last resort upon all questions of the validity of a state statute as measured by the state constitution. Kirtland v. Hotchkiss, 100 U. S. 491; Mo. Pac. Ry. v. Humes, 115 U. S. 512, 520; Fallbrook Irr. Dist. v. Bradley, 164 U. S. 112; French v. Barber Asphalt Co., 181 U. S. 324; Hibben v. Smith, 191 U. S. 310; Olsen v. Smith, 195 U. S. 332; National Cotton Oil Co. v. Texas, 197 U. S. 130, 131; Waters-Pierce Oil Co. v. Texas, 177 U. S. 28, 43; Hunter v. Pittsburgh, 207 U. S. 67.

Furthermore, the Supreme Court of Arkansas, in the case at bar, has held that these sections are valid, under the constitution of Arkansas-i. e., that they constitute such regulations as fall within the reserved power of the State to alter, amend or repeal the laws governing corporations. Upon this proposition, likewise, the decision of the highest court of the State is conclusive. Sinking Fund Cases, 99 U. S. 700; Miller v. State, 15 Wall. 498; Holyoke Co. v. Lyman, 15 Wall. 519; Tomlinson v. Jessup, 15 Wall. 459; Railway Co. v. Maine, 96 U. S. 510; Shields v. Ohio, 95 U. S. 324; Woodson v. State, 69 Arkansas, 521; Railway v. Leep, 54 Arkansas, 101.

A foreign corporation which comes into a State does so under an implied agreement to all the powers of the State reserved by its constitution. State v. Standard Oil Co. of Indiana, 91 S. W. Rep. 1062; Waters-Pierce Oil Co. v. Texas, 177 U. S. 28; Bank of Augusta v. Earl, 13 Pet. 519; Hooper v. California, 155 U. S. 648.

212 U.S.

Argument for Defendant in Error.

The act in question does not punish for acts committed beyond the jurisdiction of the State of Arkansas. The doing of business in Arkansas under given circumstances, and not the formation of the combination, is the gist of the prohibited action. Hartford Ins. Co. v. State, 76 Arkansas, 303; WatersPierce Oil Co. v. Texas, 177 U. S. 28; Armour Packing Co. v. Lacy, 200 U. S. 226.

Section 8 of the act, referring to the production of witnesses, books, papers and documents to be used as evidence, etc., is not invalid as contended. Hammond Packing Co. v. State, 81 Arkansas, 540, 541; Consolidated Rendering Co. v. Vermont, 207 U. S. 541; Hale v. Henkel, 201 U. S. 43; State v. Standard Oil Co., 91 S. W. Rep. 1162; National Cotton Oil Co. v. Texas, 197 U. S. 133.

Section 9 of the act prescribes a procedure which meets all the requirements of due process of law, and under the facts as shown in the record, plaintiff in error has not been deprived of its property without due process of law. Holden v. Hardy, 169 U. S. 366; Brown v. New Jersey, 175 U. S. 178; Iowa v. Iowa Cent. Ry. Co., 160 U. S. 389; L. & N. Ry. Co. v. Schmidt, 177 U. S. 230; Wilson v. North Carolina, 169 U. S. 586; Hovey v. Elliott, 167 U. S. 409, distinguished.

The essentials of due process of law as required by the Fourteenth Amendment are notice and opportunity to defend.

A party has no constitutional right to any particular form of procedure or to have applied to a case the rules of procedure which are derived from the common law.

The States, subject only to the qualification that they can not wholly deny a defendant some sort of terms, have the free and uncontrolled right to prescribe new forms of procedure and impose terms and conditions upon parties in their courts.

There is no fixed standard by which the sufficiency of the notice or opportunity to be heard shall be measured; and that the States may constitutionally abolish the ordinary or common law rules governing the hearing of cases and substitute

other procedures, so long as they give some sort of notice and opportunity to be heard.

Arising out of the distinction between the powers of the States and of the Federal Government, there is a distinction between the due process of law under the Fourteenth and Fifth Amendments, at least to the extent that the States may authorize procedures in their own courts, even unknown to the common law.

The contemporaneous construction of the due process phrase of the Fifth Amendment, placed upon it by the Congress which proposed it, by the passage of the act of 1789, demonstrates that a default judgment may be authorized by statute for refusal to produce evidence, without a denial of due process.

The legislation and decisions of the several States, authorizing such default judgments, demonstrate that the same have never been regarded as denying the due process of law.

MR. JUSTICE WHITE delivered the opinion of the court.

The Hammond Packing Company, an Illinois corporationhereafter called the Hammond Company-seeks to reverse a judgment for ten thousand dollars as penalties for alleged violations of a state law referred to as the Anti-Trust Act of 1905.

The Hammond Company challenged the authority which the act purported to exert and the forms of procedure which the statute authorized and which were employed to enforce its requirements, because of their alleged repugnancy to the Constitution of the United States, in particulars which were enumerated. The Supreme Court of Arkansas held that the acts which the Hammond Company was charged with having committed were within the prohibitions of the law of 1905, and that the statute was in no respect repugnant to the Constitution of the United States. These conclusions were sustained by considering prior cognate legislation, and a construction given thereto, as well as by an analysis of the act of 1905, elucidated by a prior decision made concerning the same. Before recurring particularly to the procedure and judgment in this case we advert

to these subjects, as they are essential to a comprehension of the matters here arising for decision.

The constitution of Arkansas of 1874 (§ 11, art. 12) authorized foreign corporations to do business in the State, subject to the same regulations and with the same rights as those enjoyed by domestic corporations. Carrying these provisions into effect, the legislature (Kirby's Digest Laws, Ark., §§ 824 to 827) authorized permits to be issued to foreign corporations, subjecting them to like control and entitling them to the same privileges as domestic corporations on payment of the same fees as were exacted from a domestic corporation and on compliance with other statutory requirements. In § 6, art. 12, of the same constitution there was contained a reservation of the power of the legislature to repeal, alter or amend charters of incorporation, subject, however, to the limitation that thereby "no injustice shall be done to the corporators."

The Hammond Company obtained a permit and engaged in business within the State of Arkansas.

In 1899 what was known as the Rector Act was enacted for the punishment of pools, trusts and conspiracies to control prices, etc. Under this law an action was commenced to recover penalties against the Lancashire Fire Insurance Company, a foreign corporation doing business under a permit. The case was in 1899 decided by the Supreme Court of Arkansas against the State. 66 Arkansas, 466. The court held that "it [the statute] did not intend to prohibit or punish acts done or agreements made in foreign countries by corporations doing business here, when such acts or agreements have reference only to persons or property or prices in such foreign countries."

In January, 1905, the Rector Act was repealed and the statute now in question was enacted. The first section of the new law, which is in the margin,1 reënacted the first section of the old act, with certain additions, which are in italics. Various sec

1 SEC. 1. Any corporation organized under the laws of this or any other State, or country, and transacting or conducting any kind of business in this State, or any partnership or individual, or other association

tions were added in the new law, of which only §§ 8 and 9 are particularly relevant to this controversy. As we shall hereafter have occasion to specially consider these sections, they are presently put out of view.

The Hartford Fire Insurance Company-a Connecticut corporation was proceeded against for alleged violations of the act of 1905. The company defended on the ground that it was not a member of or a party to any pool, etc., made in Arkansas, and that it was not a member of any pool, etc., which in any manner affected the premium for insuring property within that State.

In disposing of the case the Supreme Court of Arkansas (76 Arkansas, 303) considered two questions: First, the proper construction of the act; and second, its constitutionality as construed. The first question was thus stated:

"1. Does the act prohibit, under the penalty named therein, a foreign insurance corporation from doing business in Arkan

or persons whatsoever, who are now, or shall hereafter create, enter into, become a member of, or a party to, any pool, trust, agreement, combination, confederation or understanding, whether the same is made in this State or elsewhere, with any other corporation, partnership, individual, or any other person or association of persons, to regulate or fix either in this State or elsewhere the price of any article of manufacture, mechanism, merchandise, commodity, convenience, repair, any product of mining, or any article or thing whatsoever, or the price or premium to be paid for insuring property against loss or damage by fire, lightning or tornado, or to maintain said price when so regulated or fixed, or who are now, or shall hereafter enter into, become a member of, or a party to any pool, agreement, contract, combination, association or confederation, whether made in this State or elsewhere, to fix or limit in this State or elsewhere, the amount or quantity of any article of manufacture, mechanism, merchandise, commodity, convenience, repair, any product of mining, or any article or thing whatsoever, or the price or premium to be paid for insuring property against loss or damage by fire, lightning, storm, cyclone, tornado or any other kind of policy issued by any corporation, partnership, individual or association of persons aforesaid, shall be deemed and adjudged guilty of a conspiracy to defraud and be subject to the penalties as provided by this act.