commenced, is much to be regretted; | upon local agents to whom automobiles are but § 28 of the Judicial Code is control- consigned for sale by their nonresident ling, and Congress alone has power to manufacturers, which discriminates in fa

afford relief.

Rule discharged.
Petition dismissed.

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1. Foreign corporations doing business in a state, and having an agent there, are within the jurisdiction of the state for the purpose of suit against them.

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[For other cases, see Courts, II. b, 1, in Digest Sup. Ct. 1908.] Constitutional law of the laws 2. A state act imposing a license tax upon all manufacturers or persons or corporations engaged in selling automobiles in the state unconstitutionally discriminates against nonresident manufacturers doing business in the state through local sales agents, where it reduces the tax to one fifth of its normal amount if the manufacturer of the automobiles has three fourths of his assets invested in the bonds of the state or of some of its municipalities, or in other property situated therein and returned for taxation.

equal protection state license tax.

vor of the product of resident manufacturers, is an unconstitutional attempt by the state to regulate interstate commerce, it being in effect a tax upon the importation of the automobiles into the state.

[For other cases, see Commerce IV. b, 1; V. in Digest Sup. Ct. 1908.]

[No. 254.]

Submitted March 22, 1921. Decided June 1, 1921.


N ERROR to the Supreme Court of the State of North Carolina to review a decree which affirmed a decree of the Superior Court of Forsyth County, in that state, refusing to restrain a levy upon automobiles to enforce a state license tax. Reversed and remanded for further proceedings.

See same case below, 178 N. C. 399, 100 S. E. 693.

The facts are stated in the opinion. Mr. J. E. Alexander submitted the cause for plaintiffs in error:

A state may not impose a license tax which in effect discriminates against the citizens or products of another state or country.

12 C. J. pp. 104, 105, §§ 142, 145; Tiernan v. Rinker, 102 U. S. 123, 26 L. ed. 103; Ames v. People, 25 Colo. 508, 55 Pac. 725; Sinclair v. State, 69 N. C. 47; Com. v. Myer, 92 Va. 809, 31 L.R.A. 379, 23 S. E. 915; Weber v. Virginia, 103 U. S.

[For other cases, see Constitutional Law, IV. 344, 26 L. ed. 565.

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a, 4, in Digest Sup. Ct. 1908.] Commerce crimination against products of oth

er states.

3. The imposition of a state license tax

Substance, and not form, controls in determining whether a particular transaction is one of interstate commerce. 12 C. J. p. 21, § 19; Heyman v. Hays,

Co. v. Bates, 39 L. ed. U. S. 538.

Note. As to constitutional equality | ed. U. S. 311; and Pittsburg & S. Coal of privileges, immunities, and protection, generally-see note to Louisville Safety Vault & T. Co. v. Louisville & N. R. Co. 14 L.R.A. 579:

On discrimination against nonresidents by statute or municipal ordinance imposing license or occupation tax-see note to State v. Williams, 40 L.R.A. (N.S.) 286.

As to state licenses or taxes, generally, as affecting interstate commerce-see notes to Rothermel v. Meyerle, 9 L.R.A. 366; American Fertilizing Co. v. North Carolina Bd. of Agri. 11 L.R.A. 179, Gibbons v. Ogden, 6 L. ed. U. S. 23; Brown v. Maryland, 6 L. ed. U. S. 678; Ratterman v. Western U. Teleg. Co. 32 L. ed. U. S. 229; Harmon v. Chicago, 37 L. ed. U. S. 217; Cleveland, C. C. & St. L. R. Co. v. Backus, 38 L. ed. U. S. 1041; Postal Teleg. Cable Co. v. Adams, 39 L.

On state regulation of interstate or foreign commerce-see notes to Norfolk & W. R. Co. v. Com. 13 L.R.A. 107; Brown v. Maryland, 6 L. ed. U. S. 678; and Gloucester Ferry Co. v. Pennsylvania, 29 L. ed. U. S. 158.

As to the validity of class legislation, generally-see notes to State v. Goodwill, 6 L.R.A. 621, and State v. Loomis, 21 L.R.A. 789.

On validity of occupation tax under the commerce clause-see note to Western U. Teleg. Co. v. Taggart, 60 L.R.A. 691.

On peddlers and drummers as related to interstate commerce-see notes to Stockard v. Morgan, 46 L. ed. U. S. 785, and Wagner v. Covington, 64 L. ed. U. S. 158.

236 U. S. 178, 59 L. ed. 527, 35 Sup. Ct. of the three other corporations "for Rep. 403. the purpose of selling and delivering Transactions of interstate commerce said trucks and automobiles." They comprehend every negotiation, initiatory and intervening act, contract, trade, and dealing between citizens of any state or territory or the District of Columbia and those of another political division of the United States, which contemplates and causes an importation into the state, either of goods, of persons, or of information.

12 C. J. p. 21, § 19, note 28.

Mr. James S. Manning, Attorney General of North Carolina, submitted the

cause for defendants in error. Mr. Frank Nash was on the brief:

There is nothing in the statute itself or in its operation which imposes any burden on interstate commerce.

Cheney Bros. Co. v. Massachusetts, 246 U. S. 147, 62 L. ed. 632, 38 Sup. Ct. Rep. 295; Armour Packing Co. v. Lacy, 200 U. S. 226, 50 L. ed. 451, 26 Sup. Ct. Rep. 232; Singer Sewing Mach. Co. v. Brickell, 233 U. S. 304, 58 L. ed. 974, 34 Sup. Ct. Rep. 493.

The statute does not illegally discriminate against nonresidents.

were consigned to the two latter companies, and were sold direct by them from their storage warehouse, being consigned to them for that purpose, and not to be used exclusively as samples or for demonstration purposes, nor used or intended to be used simply for the purpose of soliciting orders to be filled by shipment from the place of their manufacture.

Plaintiffs in error brought this suit in the superior court of Forsyth county to restrain the defendants in error from selling the truck and car. A preliminary restraining order was granted. It was dissolution was affirmed by the supreme subsequently dissolved. The order of court, thereby sustaining the license tax, and the levy upon the automobiles, made

to enforce it.

[423] A summary of the act by which vides in § 72, chap. 231, of the Laws of a license is required is necessary. It pro1917, that every manufacturer of automobiles, "engaged in the business of selling the same in this state, or every perNew York v. Roberts, 171 U. S. 658, 43 in selling automobiles in this state, the son or persons or corporation engaged L. ed. 323, 19 Sup. Ct. Rep. 58; Rey-manufacturer of which has not paid the mann Brewing Co. v. Brister, 179 U. S. 445, 45 L. ed. 269, 21 Sup. Ct. Rep. 201; Armour & Co. v. Virginia, 246 U. S. 1, 62 L. ed. 547, 38 Sup. Ct. Rep. 267.

[422] Mr. Justice McKenna delivered the opinion of the court:

The defendants in error are, respectively, sheriff's of Forsyth and Guilford counties, North Carolina. Under the laws of the state, for the nonpayment of

a license tax, the former levied on a motor truck belonging to the Bethlehem Corporation (referred to as the Pennsylvania corporation); the latter levied on a car belonging to the National Motor Car & Vehicle Corporation (referred to as the Indiana corporation). The trucks are manufactured in Pennsylvania; the cars in Indiana; and they are distributed in North Carolina and other states through W. Irving Young & Company (referred to as the Delaware corporation), a corporation of the state of Delaware, which conducts its business in North Carolina by the Liberty Motors Corporation and the National Motors Company, these companies being corporations of North Carolina. And it is the finding or conclusion of the trial court that "both corporations thereupon were and became the agents"

license tax provided for in this section, before selling or offering for sale any such machine, shall pay to the state treasurer a tax of $500, and obtain a license for conducting such business." The name of the machine must accom

pany the application for a license, which must be in writing. A licensee may employ an unlimited number of agents, but each county of the state may levy a tax on each agent. Besides some other provisions, there is one (and it is of special pertinence in the case) "that if any officer, agent or representative of such manufacturer shall file with the state treasurer a sworn statement showing that at least three fourths of the entire assets of the said manufacturer of automobiles are invested" in the bonds of the state or any of its counties, cities, or towns, or in property situated therein, and returned for taxation, the taxes named in the section shall be one fifth of those named. Upon the renewal of a license that shall have been in force less than six months, a rebate of $250 is allowed on the new license.

Two contentions are made by the plaintiffs in error:

(1) That the act imposing the tax offends the equal protection of the laws

clause of the 14th Amendment of the ing such investment of property is Constitution of the United States. [425] charged $500 for a license, and one having such investment of property is charged only $100. And plaintiffs in error, it is asserted, are necessarily in the $500 class. The contrasting assertion is that local manufacturers are in the $100 class, and that, therefore, there is illegal discrimination in their favor. In explicit specification of such discrimination plaintiffs in error assert that the provision, as applied to them, is "contrary to all common sense," and that the supreme court conceded the improbability of compliance with it by the manufacturer of another state.

(2) That the act attempts to regulate interstate commerce, in contravention of the commerce clause of the Constitution. The contentions depend upon different considerations. The basis of the first is that they, the corporations, are discriminated against; the basis of the second is that their products are. The contentions, therefore, should not be [424] confused. They fall under two heads: (1) If the Pennsylvania corporation and the Indiana corporation and the Delaware corporation are doing business in the state, and, therefore, within its jurisdiction, they undoubtedly can complain of a discrimination against them that is offensive to the 14th Amendment. Southern R. Co. v. Greene, 216 U. S. 400, 415, 54 L. ed. 536, 540, 30 Sup. Ct. Rep. 287, 17 Ann. Cas. 1247. (2) If, however, they are not in the state and subject to its jurisdiction, and seek to enter, the tax may be considered a condition which the statute may impose. Paul v. Virginia, 8 Wall. 168, 19 L. ed. 357, and a number of subsequent cases, including Southern R. Co. v. Greene, supra. Unless, as plaintiffs in error contend, the tax is a discrimination against their products.

These contentions we will consider in their order, keeping them as separate as possible.

The attorney general of the state seems to concur in the denunciation, and adds to it the declaration that the insistence of the act is of an "utterly futile project;" but adds, in order to remove or palliate its discrimination, it is as "futile" to manufacturers of the state as to manufacturers of other states, and considers it nugatory. His words are, "from nothing, nothing can arise," and that "discrimination cannot be predicated upon any scheme which is not workable." He therefore dismisses the provision as not applicable.

May we accept his view of it, that is, regard the condition as a mere brutum fulmen, imposing no condition or burden, against the decision of the supreme court of the state? The court has assumed its efficacy and regarded it as a legal condition upon the Pennsylvania corporation, the Indiana corporation, and the Delaware corporation, doing business in the state. We are unable to concur in this conclusion. It is a perilous power to concede to the state, and it is immediately manifest that it can be exerted to prevent all commerce of those corporations (or other corporations) with the state, except as the commerce might be through direct personal purchases and importations. In other words, the power can be exerted to exclude the products of those corporations and every other corporation, if they have, or it has, agents in the state.

(a) This court has decided too often to need citation of the cases that corporations doing business in a state, and having an agent there, are within the jurisdiction of the state for the purpose of suit against them, and we may assume that the principle is applicable here, and that the Pennsylvania corporation, the Indiana corporation, and the Delaware corporation are within the jurisdiction of the state, and subject to its laws, equally with the corporations of the state. It will be observed, however, that the act under review applies to all manufacturers and persons engaged in selling automobiles in the state. The act makes distinctions between nonresident and resident manufacturers. Wherein, then, is there discrimination? [426] But if that provision can be It is contended to be in the pro- dismissed as nugatory, as the attorney vision which reduces the tax to one general asserts, we encounter the alterfifth of its amount-from $500 to native provision which requires the in$100-if the manufacturer of the auto- vestment of a like proportion of assets mobiles has three fourths of his assets of foreign manufacturers in other propinvested in the bonds of the state or erty in the state returned for taxation. some of its municipalities, or in other In resistance to the assertion that the property situated therein and returned provision discriminates against nonresifor taxation. The provision is declared dent manufacturers, the attorney generto be impossible of performance, and its al contends that it is as applicable to effect to be that a manufacturer not hav-resident manufacturers as to nonresi


dent manufacturers, and, of course, his inference is that its condition can be performed as easily by one as by the other, and discriminates against neither. To this we cannot assent. The condition can be satisfied by a resident manufacturer, his factory and its products in the first instance being within the state; it cannot be satisfied by a nonresident manufacturer, his factory necessarily being in another state, some of its products only at a given time being within the state. Therefore, there is a real discrimination, and an offense against the 14th Amendment, if we assume that the corporations are within the state.

Judgment reversed and cause re manded for further proceedings not inconsistent with this opinion.

Mr. Justice Pitney and Mr. Justice Brandeis dissent.

PANY, Petitioner,



(See S. C. Reporter's ed. 427-438.)

Carriers liability for loss effect of placement and notice to consignee. 1. The relation of a carrier to a shipment during the first forty-eight hours after a car has been placed on a public delivarrival has been given to the consignee, is ery track at destination, and notice of that of carrier, where the bill of lading provides that "property not removed by the party entitled to receive it within fortyeight hours, exclusive of legal holidays, after notice of its arrival has been duly sent or given, may be kept in car, depot, or place of delivery of the carrier, subject to rier's responsibility as warehouseman only, a reasonable charge for storage and to caror may be, at the option of the carrier, removed to and stored in a public or licensed warehouse at the cost of the owner, and there held at owner's risk and without liability on the part of the carrier, and sub

ful charges, including a reasonable charge
for storage." Until the responsibility of
warehouseman attaches, that of carrier con-

[For other cases, see Carriers, II. b, 3, in
Digest Sup. Ct. 1908.]
public delivery track.

(b) If they are not within the state, their second contention is that the act is an attempt to regulate interstate commerce. If it have that effect it is illegal; for a tax on an agent of a foreign corporation, for the sale of a product, is a tax on the product, and if the product be that of another state, it is a tax on commerce between the states. Welton v. Missouri, 91 U. S. 275, 23 L. ed. 347; Webber v. Virginia, 103 U. S. 344, 26 L. ed. 565; I. M. Darnell & Son v. Memphis, 208 U. S. 113, 52 L. ed. 413, 28 Sup: Ct. Rep. 247. This is the assertion of plaintiffs in error; defendants in error oppose a denial to the assertion, and the denial is supported by the supreme court on the authority of Brown v. Houston, 114 U. S. 622, 29 L. ed. 257, 5 Sup. Ct.ject to a lien for all freight and other lawRep. 1091; Singer Sewing Mach. Co. v. Brickell, 233 U. S. 304, 58 L. ed. 974, 34 Sup. Ct. Rep. 493. The basis of the denial and its support by the supreme court is that the automobiles had passed out of interstate commerce and had reached repose in the state, and blend with the other things of the [427] state, and became subject to intrastate regulation. It is doubtful if that be a justifiable deduction from the findings of the trial court. But comment is not necessary. It is the finding of the court that the automobiles were in the hands of the agents of the consigning corporations, and, therefore, a tax against them was practically a tax on their importation into the state. It is not necessary to say it would be use- Argued April 28, 1921. less to send them to the state if their sale could be prevented by a prohibitive tax, or one so discriminating that it would prevent competition with the products of the state. This is the ruling of the cases which we have cited. It is especially the ruling in I. M. Darnell & Son v. Memphis, supra. The imposition of such a tax is practically the usurpation of the power of Congress over interstate commerce, and therefore illegal.

placing car on

2. Delivery to a consignee which will relieve a carrier from liability as such for the contents of the car is not made by the carrier's placing the car, as it arrives, on a public delivery track, with notice thereof to the consignee, and by his acceptance of the car, breaking the seal, and beginning to unload it.

[For other cases, see Carriers, II. b, 4, in Digest Sup. Ct. 1908.]

[No. 299.]


Decided June 1,

Note. As to liability after arrival of freight-see note to Constable v. National S. S. Co. 38 L. ed. U. S. 904.

As to what is reasonable time for removal of goods by consignee, after which the liability of the carrier as such terminates-see note to United Fruit Co. v. New York & B. Transp. Line, 8 L.R.A.(N.S.) 240.


N WRIT of Certiorari to the Su- | Bros. v. Northern P. R. Co. 68 Wash. preme Court of the State of Illinois 527, 40 L.R.A. (N.S.) 773, 123 Pac. 1011; to review a judgment which affirmed a Brooks Mfg. Co. v. Southern R. Co. 152 judgment of the Appellate Court for the N. C. 665, 68 S. E. 243; Levers v. AtchiFirst District of that state, reversing a son, T. & S. F. R. Co. 22 N. M. 599, judgment of the Municipal Court of Chi- L.R.A.1918A, 294, 166 Pac. 1178; Chicago in favor of a carrier in a suit for cago, M. & St. P. R. Co. v. Kelm, 121 damages for loss to a shipment. Af- Minn. 343, 44 L.R.A.(N.S.) 995, 141 N. firmed. W. 295; Kingman St. Louis Implement Co. v. Southern R. Co. 133 Mo. App. 317, 112 S. W. 721; Gratiot Street Warehouse Co. v. St. Louis, A. & T. H. R.

See same case below, 291 Ill. 149, 125 N. E. 767.

The facts are stated in the opinion.

Mr. Frank H. Towner argued the cause, and, with Mr. Ralph M. Shaw, filed a brief for petitioner:

Co. 221 Ill. 418, 77 N. E. 675; Pittsburgh,
C. & St. L. R. Co. v. Nash, 43 Ind. 423;
Whitney Mfg. Co. v. Richmond & D. R.
Co. 38 S. C. 365, 37 Am. St. Rep. 767,
17 S. E. 147; Anchor Mill Co. v. Bur-

The provisions of the bills of lading covering the shipments sued on are binding on the parties hereto, and the liabili-lington, C. R. & N. R. Co. 102 Iowa, 262, ty of petitioner is to be measured by Denver & R. G. R. Co. v. Johnson, 69 71 N. W. 255, 3 Am. Neg. Rep. 157; those provisions so far as they are valid under the Act to Regulate Commerce. Colo. 252, 193 Pac. 729; State v. IntoxiKansas City Southern R. Co. v. Carl, cating Liquors, 106 Me. 138, 29 L.R.A. 227 U. S. 639, 57 L. ed. 683, 33 Sup. Ct. (N.S.) 745, 76 Atl. 265, 20 Ann. Cas. 668; Lewis v. New York, O. & W. R. Co. Rep. 391; Georgia, F. & A. R. Co. v. Blish Mill. Co. 241 U. S. 190, 60 L. ed. 210 N. Y. 429, 104 N. É. 944; Anthony 948, 36 Sup. Ct. Rep. 541; St. Louis, I. & J. Co. v. New York C. & H. R. R. M. & S. R. Co. v. Starbird, 243 U. S. Co. 223 N. Y. 21, L.R.A.1918F, 1085, 119 592, 61 L. ed. 917, 37 Sup. Ct. Rep. 462; N. E. 90; United Metals Selling Co. v. Missouri, K. & T. R. Co. v. Ward, 244 Pryor, 155 C. C. A. 621, 243 Fed. 91; U. S. 383, 61 L. ed. 1213, 37 Sup. Ct. Southern R. Co. v. Prescott, 240 U. S. 632, 60 L. ed. 836, 36 Sup. Ct. Rep. 469. Rep. 617.

Under §§ 1 and 5 of the bills of lading covering the shipments sued on in this case, the liability of petitioner as a carrier was not extended throughout the period of forty-eight hours following placement of the cars and notice thereof to respondent, and consumed by respondent in unloading the shipments.

McEntire v. Chicago, R. I. & P. R. Co. 98 Neb. 92, 152 N. W. 305, on rehearing in 98 Neb. 828, 154 N. W. 722; Grand Trunk & W. R. Co. v. Glinski, Ind. App., 125 N. E. 53.

There being nothing in the applicable parts of §§ 1 and 5 of the bills of lading sued on extending petitioner's liability as a common carrier through the first forty-eight hours after placement of the cars and notice to respondent, delivery of the shipments sued on had been made; or, if not, petitioner's liability at the time the losses sued for occurred did not exceed that of a warehouseman.

2 Hutchinson, Carr. 3d ed. § 711; 1 Michie, Carr. § 843; Southern R. Co. v. Barclay, 1 Ala. App. 348, 56 So. 26, 6 Ala. App. 502, 60 So. 479; Kenny Co. v. Atlanta & W. P. R. Co. 122 Ga. 365, 50 S. E. 132; Vaughn v. New York, N. H. & H. R. R. Co. 27 R. I. 235, 61 Atl. 695; Texas & P. R. Co. v. Robertson,

Civ. App.


Mr. William B. Moulton argued the cause, and, with Mr. Joseph A. Bates, filed a brief for respondent:

The bill of lading having been prepared by the petitioner, §§ 1 and 5 should be construed most strongly against it.

Texas & P. R. Co. v. Reiss, 183 U. S. 621, 46 L. ed. 358, 22 Sup. Ct. Rep. 252; Lehigh Valley Transp. Co. v. Post Sugar Co. 128 Ill. App. 600; 10 C. J. 181.

The contention of the petitioner as to delivery in this case is without value, in view of the words used in § 5 of the bill of lading.

Gary Bros. & G. Co. v. Chicago, M. & P. S. R. Co. 49 Mont. 524, 143 Pac. 955; Rustad v. Great Northern R. Co. 122 Minn. 453, 142 N. W. 727; Mark Owen & Co. v. Michigan C. R. Co. 291 Ill. 149, 125 N. E. 767, 214 Ill. App. 94.

Before the approval of the form of the bill of lading in the present case, by the Interstate Commerce Commission, the consignee had a right, recognized by the courts, to a reasonable time after placement and notice in which to unload, during which the liability of the carrier continued that of a common carrier.

Jackson v. New York C. & H. R. R. Co. 167 Ill. App. 461; Schumacher v. 143 S. W. 708; Rothchild Chicago & N. W. R. Co. 207 Ill. 199, 69

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