US SUPREME COURT DECISIONS

The act of the Legislature of Kentucky of March 2, 1860, "to regulate agencies of foreign express companies," which provides that the agent of an express company not incorporated by the laws of that state shall not carry on business there without first obtaining a license from the state, and that preliminary thereto he shall satisfy the auditor of the state that the company he represents is possessed of an actual capital of at least $150,000, and that if he engages in such business without license he shall be subject to fine, is a regulation of interstate commerce so far as applied to a corporation of another state engaged in that business, and is to that extent repugnant to the Constitution of the United States.

The case was stated by the Court as follows:

This case arose at Frankfort, Franklin County, Kentucky, upon an indictment found against Crutcher, the plaintiff in error, in the Franklin Circuit Court, for acting and doing business as agent for the United States Express Company, alleged to be an express company not incorporated by the laws of Kentucky, but trading and doing business as a common carrier by express of goods, merchandise, money, and other things of value in and through the county and state aforesaid, without having any license so to do either for himself or the chanrobles.com-red

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company. Crutcher, being arrested and brought before the court, tendered a special plea setting forth the facts with regard to his employment and the business of the company, and, among other things, that said company was a joint-stock company, incorporated and having its principal office in the City of New York in the State of New York, which plea was refused. He then pleaded not guilty, and the parties filed an agreed statement of facts, and by consent the matters of law and fact were submitted to the court, and the defendant was found guilty and sentenced to pay a fine of one hundred dollars and the costs of prosecution. The agreed statement of facts was as follows:

"It is agreed that the defendant is agent of the United States Express Co., a foreign corporation doing the business ordinarily done by express companies in this country, of carrying goods and freight for hire not only from points in this state to other points in this state, but also of carrying same character of freight from points within this state to points without this state, in divers parts of the United States and vice versa. And defendant, agent at Frankfort, Kentucky, never obtained any license to do such business, nor did said express company obtain any license from the State of Kentucky. The proportion of business done by the said company within and without this state for the month of November, 1888, is shown by a statement herewith filed, market 'X,' and the same proportion of business within and without this state, approximately, is generally done by said company."

The detailed statement referred to, market "X," showed the total amount of business done by the company at the Frankfort office in November, 1888, to have been $226.71, of which $56.14, or not quite one-fourth of the whole, was business done entirely within the state, and the remainder, $170.57, was done partly within and partly without the state -- that is, the goods were brought into the state from places without the state, or were carried from the state to places without the state. Of course, the latter, or largest, portion was comprised within the category of interstate commerce. The defendant upon these facts moved for a new trial, chanrobles.com-red

Page 141 U. S. 49

which was refused, and also for an arrest of judgment, which was denied, and a bill of exceptions was taken. The case was then appealed to the Court of Appeals of Kentucky, and the judgment was affirmed. The ground taken for reversing the judgment was that the statute of Kentucky under which the indictment was found was repugnant to the power given to Congress by the Constitution of the United States to regulate commerce among the several states.

The law in question was passed in 1860, and is as follows:

"An act to regulate agencies of foreign express companies:"

"SECTION 1. Be it enacted by the General Assembly of the Commonwealth of Kentucky that it shall not be lawful after the first day of May, 1860, for any agent of any express company not incorporated by the laws of this commonwealth to set up, establish, or carry on the business of transportation in this sate without first obtaining a license from the auditor of public accounts to carry on such business."

"SEC. 2. Before the auditor shall issue such license to any agent of any company incorporated by any state of the United States, there shall be filed in his office a copy of the charter of such company, and a statement made, under oath of its president or secretary showing its assets and liabilities and distinctly showing the amount of its capital stock, and how the same has been paid, and of what the assets of the company consist, the amount of losses due and unpaid by said company, if any, and all other claims against said company or other indebtedness, due or not due, and such statement shall show that the company is possessed of an actual capital of at least $150,000, either in cash or in safe investment, exclusive of stock notes. Upon the filing of the statement above provided and furnishing the auditor with satisfactory evidence of such capital, it shall be his duty to issue license to such agent or agents as the company may direct to carry on the business of expressing or transportation in this state."

"SEC. 3. Before the auditor shall issue license to any agent of any express or transportation company incorporated by any

Page 141 U. S. 50

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 bylaws 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 in vestment, 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 offense 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."

An amendatory act passed in 1866 raised the license fee to $5, and imposed a fee of $5 for filing copy of charter, and $10 for filing an original or annual chanrobles.com-red

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statement. The Supreme Court of Kentucky, in disposing of the case, gave the following opinion (Crutcher v. Commonwealth, 12 S.W. 141):

"It seems to us that the case of Woodward v. Commonwealth, 7 S.W. 613, 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, both into the state and out of it. It appears that at least fifty percent 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 entrust 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

Page 141 U. S. 52

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 same 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. "

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