Opinion of the Court.

exclusive right of establishing and maintaining telegraph lines in two counties in that State, and this court held that such legislation was in conflict with the act of Congress of July 24, 1866, granting to any telegraph company the right "to construct, maintain and operate lines of telegraph through and over any portion of the public domain of the United States, over and along any of the military or post roads of the United States which have been or may hereafter be declared such by act of Congress, and over, under or across the navigable streams or waters of the United States," etc. This court held such state legislation unconstitutional, as interfering with interstate commerce, and in its opinion announced no doctrine not in harmony with the principles of the later decisions to which we have referred.

Smith v. Alabama was a case in which an act of the state legislature imposing a license upon any locomotive engineer operating or running any engine or train of cars on any railroad in that State was resisted by an engineer of the Mobile and Ohio Railroad Company, who ran an engine drawing passenger coaches on that road from Mobile in that State to Corinth in Mississippi, on the ground that the statute of the State was an attempt to regulate interstate commerce, and was, therefore, repugnant to the commercial clause of the Constitution of the United States. We held, however, that the statute in question was not in its nature a regulation of commerce; that so far as it affected commercial transactions among the States, its effect was so indirect, incidental and remote as not to burden or impede such commerce, and that it was not, therefore, in conflict with the Constitution of the United States or any law of Congress. It having been thus ascertained that the legislation of the State of Alabama did not impose any burden or tax upon interstate commerce, there is nothing to be found in the opinion in that case that is not in harmony with the doctrines we have asserted in this case. That opinion quoted at length from Sherlock v. Alling, 93 U. S. 99, 102, where it was expressly held that "the States cannot by legislation place burdens upon commerce with foreign nations or among the several States. The decisions go to that

VOL. CXXXVI-8

Syllabus.

extent and their soundness is not questioned. But, upon an examination of the cases in which they were rendered, it will be found that the legislation adjudged invalid imposed a tax upon some instrument or subject of commerce, or exacted a license fee from parties engaged in commercial pursuits, or created an impediment to the free navigation of some public waters, or prescribed conditions in accordance with which commerce in particular articles or between particular places was required to be conducted. In all the cases the legislation condemned operated directly upon commerce, either by way of tax upon its business, license upon its pursuit in particular channels or conditions for carrying it on."

It results from what we have said that the judgment of the court below should be, and it hereby is, reversed, and the case is remanded to that court for further proceedings in conformity with this opinion.

MR. CHIEF JUSTICE FULLER, MR. JUSTICE GRAY and MR. JUSTICE BREWER dissented.

NORFOLK AND WESTERN RAILROAD COMPANY v. PENNSYLVANIA.

ERROR TO THE SUPREME COURT OF THE STATE OF PENNSYLVANIA.

No. 294. Argued April 24, 25, 1890. - Decided May 19, 1890.

A railroad which is a link in a through line of road by which passengers and freight are carried into a State from other States and from that State to other States, is engaged in the business of interstate commerce; and a tax imposed by such State upon the corporation owning such road for the privilege of keeping an office in the State, for the use of its officers, stockholders, agents and employés (it being a corporation created by another State) is a tax upon commerce among the States, and as such is repugnant to the Constitution of the United States.

THE case is stated in the opinion.

Opinion of the Court.

Mr. M. E. Olmstead for plaintiff in error.

Mr. John F. Sanderson, (with whom was Mr. William S. Kirkpatrick on the brief,) for defendant in error.

MR. JUSTICE LAMAR delivered the opinion of the court.

The 16th section of an act of the legislature of the Commonwealth of Pennsylvania, approved June 7, 1879, provides as follows:

"That from and after the first day of July, Anno Domini one thousand eight hundred and seventy-nine, no foreign corporation, except foreign insurance companies, which does not invest and use its capital in this Commonwealth, shall have an office or offices in this Commonwealth for the use of its officers, stockholders, agents or employés, unless it shall have first obtained from the auditor general an annual license so to do, and for said license every such corporation shall pay into the state treasury, for the use of the Commonwealth, annually, one-fourth of a mill on each dollar of capital stock which said company is authorized to have, and the auditor general shall not issue a license to any corporation until said license fee shall have been paid. The auditor general and state treasurer are hereby authorized to settle and have collected an account against any company violating the provisions of this section, for the amount of such license fee, together with a penalty of fifty per centum for failure to pay the same: Provided, That no license fee shall be necessary for any corporation paying a tax under any previous section of this act, or whose capital stock or a majority thereof is owned or controlled by a corporation of this State which does pay a tax under any previous section of this act." Laws of Penn., Sess. 1879, 120, No. 122, § 16.

Under the authority vested in him by that statute the auditor general of the State assessed a license tax against the Norfolk and Western Railroad Company, a corporation existing under the laws of Virginia and West Virginia, for each of the two years ending July 1, 1885, on its capital stock of $25,000,000, at the rate prescribed in the act, amounting to

Opinion of the Court.

$6250 a year, on account of its having an office for the use of its officers, stockholders, agents and employés, in the city of Philadelphia. The case now before this court involves the claim of the State for the year ending July 1, 1884, only. As permitted by the laws of Pennsylvania, the company appealed from the auditor general's settlement to the Court of Common Pleas of Dauphin County, in that State. The case was tried in that court without the intervention of a jury, under an act of the state legislature approved April, 22, 1874, and the court made the following findings of fact :

"1. The defendant is a railroad corporation existing under the laws of the States of Virginia and West Virginia, and its main line and branches lie wholly within these States.

"2. Its line of railroad connects at several points with the railroads of other corporations, and, by virtue of these connections, and certain traffic contracts and agreements, it has become a link in a through line of road, over which, as a part of the business thereof, freight and passengers are carried into and out of this Commonwealth.

"3. Its authorized capital stock is twenty-five millions of dollars.

"4. From July 1, 1883, to July 1, 1885, it had an office in this Commonwealth for the use of its officers, stockholders, agents and employés. Its main office is at Roanoke, Virginia.

"5. During this period it expended a considerable amount of money in Pennsylvania in the purchase of materials and supplies for the use of its road; but, with trifling exceptions, it owns no property and has no capital invested for corporate purposes within this Commonwealth.

"6. It has paid no office license fee for the years named, as required by section sixteen of the act of 1879 (P. L. 120). Upon this section these settlements are based."

Judgment was rendered against the company on that finding, sustaining the settlement made by the auditor general of the State, for the sum of $7503.12. That judgment having been affirmed by the Supreme Court of the State, this writ of error was sued out. The assignment of errors is to the effect that the court below erred in refusing to sustain the following

Opinion of the Court.

points, urged by the company, both in the trial court and in the Supreme Court of the State, viz.:

"(1) Inasmuch as the sixteenth section of the act of June 7, 1879, denies to foreign corporations and to the officers, agents and employés of foreign corporations the right to have an office or place of meeting in the State of Pennsylvania, the said section is in conflict with clause one of section two of article IV of the Constitution of the United States, which provides that the citizens of each State shall be entitled to all privileges. . . of citizens in the several States.'

"(2) The sixteenth section of the act of June 7, 1879, is an abridgment of the privileges and immunities of the citizens of the United States; it discriminates between corporations of the State of Pennsylvania and corporations of other States; it discriminates between corporations and natural persons having offices in Pennsylvania; it discriminates between foreign corporations; it denies to foreign corporations and to natural persons connected with such corporations, particularly this defendant and its officers, agents and employés, who were in the State maintaining an office and doing business at and before the passage of the said act, the equal protection of the laws, and is for these reasons void, because in conflict with article XIV of the amendments to the Constitution of the United States, and also because in conflict with the act of Congress Revised Statutes, section 1977.

"(3) Inasmuch as the Norfolk and Western Railroad Company engaged in the business of transporting freight and passengers to or from other States out of or into the State of Pennsylvania, or from other States to other States, passing through the State of Pennsylvania, and for the successful carrying on of said interstate business it is necessary for the said company to maintain one or more offices in the State of Pennsylvania; therefore the sixteenth section of the act of June 7, 1879, if it requires that the said company cannot lawfully maintain an office in said State without first obtaining from the auditor general thereof a license so to do, and paying the fee prescribed by said section for said license, then the said section is unconstitutional and void, because in conflict with