Messrs. Henry H. Ingersoll, John W. payment of debts over all simple *contract[248) Green, and Charles Seymour for defend-creditors, being residents of any other counants in error.

40] *Mr. Justice Harlan delivered the opin

ion of the court:

The chief object of the statute was declared to be to secure the development of the mineral resources of the state, and to facilitate the introduction of foreign capital. § 7.

granted to citizens or corporations for the
purpose of encouraging manufacturers in
this state, or otherwise." Acts of Tenn.
1877, p. 44, chap. 31.

try or countries, and also over mortgage or judgment creditors, for all debts, engage ments, and contracts which were made or owing by the said corporations previous to This writ of error brings up for review a the filing and registration of such valid final judgment of the supreme court of Ten- mortgages, or the rendition of such valid nessee sustaining the validity of certain pro-judgments. But all such mortgages and visions of a statute of that state passed judgments shall be valid, and shall constiMarch 19th, 1877. tute a prior lien on the property on which they are or may be charged as against all debts which may be incurred subsequent to the date of their registration or rendition. The said corporations shall be liable to taxIt provides, among other things, that ation in all respects the same as natural per"corporations chartered or organized under sons resident in this state, and the property the laws of other states or countries, for the of its citizens is or may be liable to taxapurpose of mining ores or coals, or of quar- tion, but to no higher taxation, nor to any 41]rying stones or minerals, of transporting the other mode of valuation, for the purpose of same, or erecting, purchasing, or carrying taxation; and the said corporations shall be on works for the manufacture of metals, or entitled to all such exemptions from taxa. of any articles made of or from metal, tim-tion which are now or may be hereafter ber, cotton, or wool, or of building dwelling houses for their workmen and others, or gas works, or waterworks, or other appliances designed for the promotion of health, good order, or general utility, in connection with such mines, manufactories, and dwelling houses, may become incorporated in this state, and may carry on in this state the business authorized by their respective charters, or the articles under which they are or may be organized, and may enjoy the rights and do the things therein specified, upon the terms and conditions, and in the manner and under the limitation herein declared." § 1. The second section provides for the filing in the office of the secretary of state by "each and every corporation created or or ganized under or by virtue of any government other than that of the state, of the character named in the first section of this act, desiring to carry on its business" in the state, of a copy of its charter or articles of association, and the recording of an abstract of the same in the office of the register of each county in which the corporation proposes to carry on its business or to acquire any lands. § 2.

The case made by the record is substan-
tially as follows:

The Embreeville Freehold Land, Iron, &
Railway Company, Limited,—to be hereafter
called the Embreeville Company,-
-was a cor-
poration organized under the laws of Great
Britain and Ireland for mining and manu
facturing purposes. In 1890 it registered
its charter under the provisions of the above
statute, and established a manager's office in
Tennessee. It purchased property and did
a mining and manufacturing business there,
transacting its affairs in this country at and
from its Tennessee office.

On the 20th day of June, 1893, C. W. Mc-
Clung & Co. and others filed an original gen-
eral creditors' bill in the chancery court of
Washington county, Tennessee, against this
company and others, alleging its insolvency
and default in meeting and discharging its
current obligations; charging that it had
made a conveyance in trust of certain per-
sonal property in fraud of the rights of its
other creditors, and asking the appointment
of a receiver and the administration of its

The third section declares that, "such corporations shall be deemed and taken to be corporations of this state, and shall be sub-affairs ject to the jurisdictions of the courts of this state, and may sue and be sued therein in the mode and manner that is, or may be, by law directed in the case of corporations created or organized under the laws of this state." § 3.

The fifth section provides:

as an insolvent corporation. The court took jurisdiction of the corporation, sustained the bill as a general creditors' bill, appointed a *receiver of its property in Ten-[243] nessee, administered its affairs in that state, and passed a decree adjudicating the rights and priorities of certain creditors.

No question is made in respect of the amount due to any one of the creditor whose claims were presented.

"§ 5. That the corporations, and the property of all corporations coming under the provisions of this act, shall be liable for all the debts, liabilities, and engagements of the said corporations, to be enforced in the manner provided by law, for the application of the property of natural persons to the payment of their debts, engagements, and conThere were holders of debentures executed tracts. Nevertheless, creditors who may by the British company whose claims were be residents of this state shall have a prior- not specifically adjudicated in the decree beity in the distribution of assets, or subjec- low. The original debenture issue amounted tion of the same, or any part thereof, to the to $500,000, and another issue, subsequent 172 U. S.

The company maintained its home office in London, its managing director resided there, and after this suit was instituted liquidation under the companies' acts of Great Britain was there ordered and begun.

U. S., Book 43.

28

433

in time, and in respect of which priority in state of Tennessee, are entitled to share ratright was claimed, amounted to $125,000. ably in the assets of the defendant EmbreeAll the holders of those issues are nonresi-ville Company being administered in this dents of Tennessee and of the United States. cause after the payment of the Pittsburgh There was also a general trade indebtedness Iron & Steel Engineering Company and the aggregating about $90,000 due by the com- Tennessee creditors (except the coke stopped pany to residents of Great Britain. Those in transitu)." And the decree in the chanclaims were specifically adjudicated by the cery court of appeals contained, among other decree. provisions, the following: "That all of the holders and owners of the debenture bonds of the company are simple-contract creditors of said company, and stand upon the same footing in reference to the distribution of the assets of the company as all other of its creditors residing out of the state of Tennessee;" and that the "portion of the chancellor's decree giving priority of payment to such of the creditors of said company who[245] reside in the United States of America, but not in the state of Tennessee, and to such creditors now residents of Tennessee who dealt with the company in relation to its Tennessee office, over all alien creditors of said company, be, and the same is hereby, reversed, it being here adjudged that all the creditors of said company residing out of the state of Tennessee must share equally and ratably in the distribution of the funds of said company after the Tennessee creditors shall have been paid in full."

Among the creditors of the company at the time this suit was instituted were the plaintiffs in error, namely: C. G. Blake, whose residence and place of business was in Ohio; Rogers, Brown, & Company, the members of which also resided in Ohio and carried on business in that state; and the Hull Coal & Coke Company, a corporation of Virginia. In the intervening petitions filed by those creditors it was averred that the plaintiffs in the general creditors' bill, residents of Tennessee, claimed priority of right in the distribution of the assets of the insolvent corporation over other creditors of the corporation "citizens of the United States, but not of the state of Tennessee;" and that the said statute was unconstitutional so far as it gave preferences and benefits to the plaintiffs or other citizens of Tennessee over the petitioners or other citizens of the United States.

By the final decree of the chancery court of Washington county, it was, among other things, adjudged that the act of 1877 was constitutional; that all of the creditors of the Embreeville Company residing in Tennes[244] see were entitled to priority of satisfaction out of its assets (after the payment out of the proceeds of the real estate of the claim of the Pittsburgh Iron & Steel Engineering Company) as against its other creditors who were "residents and citizens of other states of the United States or other countries;" that the creditors who were "citizens of other states of the United States, and who contracted with the company as located and doing business in Tennessee, are entitled to share ratably in its assets, being administered in this cause next after the payment of the Pittsburgh Iron & Steel Engineering Company and the Tennessee creditors."

The cause was carried to the supreme court of Tennessee, and so far as the plaintiffs in error are concerned was heard in that court upon appeal from the court of chancery appeals, as well as upon writs of error to the chancery court.

It was adjudged by the supreme court of
the state that the act of March 19th, 1877,
was in all respects a valid enactment, and
not in contravention of paragraph 2 of ar-
ticle IV. or of the Fourteenth Amendment
of the Constitution of the United States, nor
in contravention of any other provision of
the National Constitution; that all of the
holders and owners of the debenture bonds
of the Embreeville Company were simple-
contract creditors of the company, and stood
upon the same footing with reference to the
distribution of its assets as all of its other
creditors who "reside out of the state of Ten-
Upon appeal to the chancery court of ap-nessee, whether they be residents of other
peals the decree of the chancery court was re-states or of the Kingdom of Great Britain;
versed in certain particulars. In the find- that all of the creditors of the Embreeville
ings of the chancery court of appeals it was Company" who resided in the state of Ten-
stated that the chancery court of Washing-nessee are entitled to priority of payment
ton county adjudged, among other things, out of all the assets of said company, both
that "under the act of 1877 (which was ad-real and personal, over all of the other cred-
judged constitutional) all the creditors of itors of said company who do not reside in
said Embreeville Company residing in Ten-
nessee are entitled to priority of satisfac-
tion out of the assets of the Embreeville
Company (after the payment out of the pro-
ceeds of the real estate of the claim of the
Pittsburgh Iron & Steel Engineering Co.)
as against the other creditors of said com-
pany who are nonresidents and citizens of
other states of the United States or other
countries; that the other creditors of the
Embreeville Company who are citizens of
other states of the United States, and who
contracted with the said Embreeville Com-in full.
pany as located and doing business in the

the state of Tennessee, whether they be resi-
dents of other states of the United States
or of the Kingdom of Great Britain; that
all of the creditors of the Embreeville Free-
hold Land, Iron, & Railway Company who
reside out of the state of Tennessee, whether
they reside in other states of the United
States or in the Kingdom of Great Britain,
have the right and must share equally and
ratably in the distribution of said funds of
the said company after the residents of the
state of Tennessee shall have been first paid

*The plaintiffs in error contend that the[246]

judgment of the state court, based upon the | Tennessee, but who were citizens, not simply
statute, denies to them rights secured by the residents, of some other state or country.
second section of the fourth article of the It is impossible to believe that the statute
Constitution of the United States providing was intended to apply to creditors of whom
that "the citizens of each state shall be en- it could be said that they were only residents
titled to all privileges and immunities of cit- of other states, but not to creditors who were
izens in the several states," as well as by the citizens of such states. The state did not in-
first section of the Fourteenth Amendment, tend to place creditors, citizens of other
declaring that no state shall "deprive any states, upon an equality with creditors, citi-
person of life, liberty, or property without zens of Tennessee, and to give priority only
due process of law," nor "deny to any per- to Tennessee creditors over creditors who re-
son within its jurisdiction the equal protec-sided in, but were not citizens of, other
states. The manifest purpose was to give to
tion of the laws."
We have seen that by the third section of all Tennessee creditors priority over all cred-
the Tennessee statute corporations organized itors residing out of that state, whether the
under the laws of other states or countries, latter were citizens or only residents of some
and which complied with the provisions of other state or country. Any other inter-
the statute, were to be deemed and taken to pretation of the statute would defeat the ob-
be corporations of that state; and by the ject for which it was enacted. We must
fifth section it is declared, in respect of the therefore consider whether the statute in-
property of corporations doing business in fringes rights secured to the plaintiffs in er-
Tennessee under the provisions of the stat- ror, citizens of Ohio, by the provision of the
ute, that creditors who are residents of that second section of article IV. of the Consti-
state shall have a priority in the distribu-tution of the United States declaring that
tion of assets, or the subjection of the same,
or any part thereof, to the payment of debts,
over all simple-contract creditors, being resi-
dents of any other country or countries.

the citizens of each state shall be entitled to
all privileges and immunities of citizens in
the several states.

in its limits, and distribute such assets or
their proceeds among creditors according to
their respective rights. But may it exclude
citizens of other states from such distribu-
tion *until the claims of its own citizens shall[248]
have been first satisfied? In the administra-
tion of the property of an insolvent foreign
corporation by the courts of the state in
which it is doing business, will the Consti-
tution of the United States permit discrim-
ination against individual creditors of such
corporations because of their being citizens
of other states, and not citizens of the state
in which such administration occurs?

These questions are presented for our de-
termination. Let us see how far they have
been answered by the former decisions of this

court.

Beyond question, a state may through ju The suggestion is made that as the statute dicial proceedings take possession of the asrefers only to "residents," there is no occa-sets of an insolvent foreign corporation withsion to consider whether it is repugnant to the provision of the National Constitution relating to citizens. We cannot accede to this view. The record shows that the litigation proceeded throughout upon the theory that the plaintiffs in error, Blake and the persons composing the firm of Rogers, Brown, & Co., were citizens of Ohio, in which state they resided, transacted business and had their offices, and that the plaintiff in error, the Hull Coal & Coke Company, was a corporation of Virginia. The intervening petition of the individual plaintiffs in error, as we have seen, states that they were residents of Ohio, engaged in business in that state, their residence, offices and places of business being at the city of Cincinnati, and that they were citizens of the United States, and not citizens of Tennessee. Although these allegations might not be sufficient to show that those parties were citizens of Ohio [247] within the meaning of the statute regulating the jurisdiction of the circuit courts of the United States (Robertson v. Cease, 97 U. S. 646 [24: 1057]), they may be accepted as sufficient for that purpose in the present case, no question having been made in the state court that the individual plaintiffs in error were not citizens, but only residents of Ohio. Looking at the purpose and scope of the Tennessee statute, it is plain that the words "residents of this state" refer to those whose residence in Tennessee was such as inlicated that their permanent home or habitation was there, without any present intention of removing therefrom, and having the intention, when absent from that state, to return thereto; such residence as appertained to or inhered in citizenship. And the words, in the same statute, "residents of any other country or countries" refer to those whose respective habitations were not in

This court has never undertaken to give any exact or comprehensive definition of the words "privileges and immunities" in article IV. of the Constitution of the United States. Referring to this clause, Mr. Justice Curtis, speaking for the court in Conner v. Elliott, 18 How. 591, 593 [15: 497, 498], said: "We do not deem it needful to attempt to define the meaning of the word 'privileges' in this clause of the Constitution. It is safer, and more in accordance with the duty of a judicial tribunal, to leave its meaning to be determined, in each case, upon a view of the particular rights asserted and denied therein. And especially is this true when we are dealing with so broad a provision, involv ing matters, not only of great delicacy and importance, but which are of such a charac ter that any merely abstract definition could scarcely be correct; and a failure to make it so would certainly produce mischief." Nev ertheless, what has been said by this and other courts upon the general subject will assist us in determining the particular questions now pressed upon our attention.

435

Upon these grounds rests the decision in McCready v. Virginia, 94 U. S. 391, 395 [24: 248, 249], sustaining a statute of Virginia prohibiting the citizens of other states from planting oysters in a river in that state tice Waite, speaking for the court in that case, said: "These [the fisheries of the state] remain under the exclusive control of the state, which has consequently the right, in its discretion, to appropriate its tide waters and their beds to be used by its people as a common for taking and cultivating fish, so far as it may be done without obstructing navigation. Such an appropriation is in effect nothing more than a regulation of the use by the people of their common property. The right which the people of the state thus acquire comes, not from their citizenship alone, but from their citizenship and property combined. It is in fact a property right, and not a mere privilege or immunity of citizenship." Consequently, the decision was that the citizens of one state were not invested by the Constitution of the United States "with any interest in the common property of the citizens of another state."

One of the leading cases in which the gen- | longing to a state may be abundantly suffieral question has been examined is Corfield cient for the use of the citizens of that state, v. Coryell, decided by Mr. Justice Washing- but might be totally exhausted and destroyed ton at the circuit. He said: "The inquiry if the legislature could not so regulate the is, What are the privileges and immunities use of them as to exclude the citizens of the of citizens in the several states? We feel no other states from taking them, except under hesitation in confining these expressions to such limitations and restrictions as the laws those privileges and immunities which are, may prescribe." in their nature, fundamental; which belong, of right, to the citizens of all free governments, and which have, at all times, been enjoyed by the citizens of the several states which compose this Union from the time of their becoming free, independent, and sover-where the tide ebbed and flowed. Chief Jus[249]eign. *What these fundamental principles are, it would perhaps be more tedious than difficult to enumerate. They may, however, be comprehended under the following general heads: Protection by the government; the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety; subject, nevertheless to such restraints as the government may justly prescribe for the general good of the whole. The right of a citizen of one state to pass through or to reside in any other state for the purposes of trade, agriculture, professional pursuits, or otherwise; to claim the benefit of the writ of habeas corpus; to institute and maintain actions of any kind in the courts of the state; to take, hold, and dispose of property, either real or personal; and an exemption from higher taxes or impositions than are paid by the other citizens of the state, may be mentioned as some of In Paul v. Virginia, 8 Wall. 168 180 the particular privileges and immunities of [19: 357, 360], the court observed that "it citizens, which are clearly embraced by the was undoubtedly the object of the clause in general description of privileges deemed to be fundamental; to which may be added the question to place the citizens of each state upon the same footing with citizens of other elective franchise as regulated and esstates, so far as the advantages resulting tablished by the laws or Constitution from citizenship in those states are conof the state in which it is to be excerned. It relieves them from the disabiliercised. These, and many others which ties of alienage in other states; it inhibits might be mentioned, are, strictly speaking, discriminating legislation against them by privileges and immunities, and the enjoy other states; it gives them the right of free ment of them by the citizens of each state ingress into other states, and egress from in every other state was manifestly calcu- them; it insures to them in other states the lated (to use the expression of the preamble to the corresponding provision in the old those states in the acquisition and enjoysame freedom possessed by the citizens of[251] Articles of Confederation) 'the better to secure and perpetuate mutual friendship and ment of property and in the pursuit of hapto them in other intercourse among the people of the different piness; and it secures states of the Union.'" 4 Wash. C. C. 371, has been justly said that no provision in the states the equal protection of their laws. It Constitution has tended so strongly to conThese observations of Mr. Justice Wash-stitute the citizens of the United States one ington were made in a case involving the people as this. Lemmon v. The People, 20 N. validity of a statute of New Jersey regulat-Y. 607. Indeed, without some provision of ing the taking of oysters and shells on banks the kind, removing from the citizens of each or beds within that state and which exclud-state the disabilities of alienage in the other ed inhabitants and residents of other states states, and giving them equality of privilege from the privilege of taking or gathering with citizens of those states, the Republic clams, oysters, or shells on any of the rivers, bays, or waters in New Jersey, not wholly owned by some person residing in the state. The statute was sustained upon the ground Ward v. Maryland, 12 Wall. 418, 430 [20: that it only regulated the use of the common 449,453], involved the validity of a statute [250]property of the citizens of New Jersey, which of Maryland requiring all traders, not being could not be enjoyed by others without the permanent residents of the state, to take out tacit consent or the express permission of the licenses for the sale of goods, wares, or mersovereign having the power to regulate its chandise in Maryland, other than agriculuse. The court said: "The oyster beds be-tural products and articles there manufac

380.

would have constituted little more than a
league of states: it would not have consti-
tuted the Union which now exists."

tured. This court said: "Attempt will not | cases rest cannot, however, stand, if it be adbe made to define the words 'privileges and immunities,' or to specify the rights which they are intended to secure and protect, beyond what may be necessary to the decision of the case before the court. Beyond doubt those words are words of very comprehensive meaning, but it will be sufficient to say that the clause plainly and unmistakably secures and protects the right of a citizen of one state to pass into any other state of the Union for the purpose of engaging in lawful commerce, trade, or business without molestation; to acquire personal property, to take and hold real estate, to maintain actions in the courts of the states, and to be exempt from any higher taxes or excises than are imposed by the state upon its own citizens. Compre-clared, that that company, being admitted to hensive as the power of the states is to lay and collect taxes and excises, it is nevertheless clear, in the judgment of the court, that the power cannot be exercised to any extent in a manner forbidden by the Constitution; and inasmuch as the Constitution provides that the citizens of each state shall be entitled to all privileges and immunities of citizens in the several states, it follows that the defendant might lawfully sell, or offer or expose for sale, within the district described [252]in the indictment, any goods which the permanent residents of the state might sell, or offer or expose for sale in that district, without being subjected to any higher tax or excise than that exacted by law of such permanent residents."

In the Slaughter-House Cases, 16 Wall. 36, 77 [21: 394, 409], the court, referring to what was said in Paul v. Virginia, above cited, in reference to the scope and meaning of section two of article IV. of the Constitution, said: "The constitutional provision there alluded to did not create those rights which it called privileges and immunities of citizens of the several states. It threw around them in that clause no security for the citizen of the state in which they were claimed or exercised. Nor did it profess to control the power of the state governments over the rights of its own citizens. Its sole purpose was to declare to the several states that whatever those rights, as you grant or establish them to your own citizens, or as you limit or qualify, or impose restrictions on their exercise, the same, neither more nor less, shall be the measure of the rights of citizens of other states within your jurisdiction."

In Cole v. Cunningham, 133 U. S. 107, 113, 114 [33: 538,542], this court cited with approval the language of Justice Story, in his Commentaries on the Constitution, to the effect that the object of the constitutional guaranty was to confer on the citizens of the several states "a general citizenship, and to communicate all the privileges and immunities which the citizens of the same state would be entitled to under like circumstances, and this includes the right to institute actions."

These principles have not been modified by any subsequent decision of this court.

The foundation upon which the above

judged to be in the power of one state, when
establishing regulations for the conduet of
private business of a particular kind, to give
its own citizens essential privileges con-
nected with that business which it denies to
citizens of other states. By the statute in
question the British company was to be
deemed and taken to be a corporation of Ten-
nessee, with authority to carry on its busi-
ness in that state. It was the right of cit-
izens of Tennessee to deal with *it, as it was[253]
their right to deal with corporations created
by Tennessee. And it was equally the right
of citizens of other states to deal with that
corporation. The state did not assume to
declare, even if it could legally have de-
do business in Tennessee, should transact
business only with citizens of Tennessee, or
should not transact business with citizens of
other states. No one would question the
right of the individual plaintiffs in error,
although not residents of Tennessee, to sell
their goods to that corporation upon such
terms in respect of payment as might be
agreed upon, and to ship them to the cor-
poration at its place of business in that
state. But the enjoyment of these rights
is materially obstructed by the statute in
question; for that statute, by its necessary
operation, excludes citizens of other states
from transacting business with that corpo-
ration upon terms of equality with citizens
of Tennessee. By force of the statute alone,
citizens of other states, if they contracted at
all with the British corporation, must have
done so subject to the onerous condition that
if the corporation became insolvent its as-
sets in Tennessee should first be applied to
meet its obligations to residents of that
state, although liability for its debts and en-
gagements was "to be enforced in the manner
provided by law for the application of the
property of natural persons to the payment
of their debts, engagements, and contracts."
But, clearly, the state could not in that mode
secure exclusive privileges to its own citi-
zens in matters of business. If a state should
attempt, by statute regulating the distribu-
tion of the property of insolvent individuals
among their creditors, to give priority to
the claims of such individual creditors as
were citizens of that state over the claims of
individual creditors citizens of other states,
such legislation would be repugnant to the
Constitution upon the ground that it with-
held from citizens of other states as such,
and because they were such, privileges
granted to citizens of the state enacting it.
Can a different principle apply, as between
individual citizens of the several states, when
the assets to be distributed are the assets of
an insolvent private corporation lawfully
engaged in business and having the power to[254]
contract with citizens residing in states
other than the one in which it is located?

It is an established rule of equity that
when a corporation becomes insolvent it is
so far civilly dead that its property may be
administered as a trust fund for the benefit
of its stockholders and creditors (Graham v.