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 coun. ants in error.

try or countries, and also over mortgage or

judgment creditors, for all debts, engage 240] *Mr. Justice Harlan delivered the opin- ments, and contracts which were made or ion of the court:

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 consti. March 19th, 1877.

tute a prior lien on the property on which The chief object of the statute was declared they are or may be charged as against all to be to secure the development of the min- debts which may be incurred subsequent to eral resources of the state, and to facilitate the date of their registration or rendition. the introduction of foreign capital. $ 7. The said corporations shall be liable to tax

It 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 taxa

purpose of mining ores or coals, or of quar- tion, but to no higher taxation, nor to any 241 ]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, cctton, or wool, or of building dwelling granted to citizens or corporations for the
houses for their workmen and others, or gas purpose of encouraging manufacturers in
works, or waterworks, or other appliances this state, or otherwise.” Acts of Tenn.
designed for the promotion of health, good 1877, p. 44, chap. 31.
order, or general utility, in connection with The case made by the record is substan.
such mines, manufactories, and dwelling tially as follows:
houses, may become incorporated in this

The Embreeville Freehold Land, Iron, & state, and may carry on in this state the Railway Company, Limited,—to be hereafter business authorized by their respective char- called the Embreeville Company,—was a cor. ters, or the articles under which they are or poration organized under the laws of Great may be organized, and may enjoy the rights Britain and Ireland for mining and manuand do the things therein specified, upon the facturing purposes. In 1890 it registered terms and conditions, and in the manner and its charter under the provisions of the above under the limitation herein declared.” § 1. statute, and established a manager's office in

The second section provides for the filing Tennessee. It purchased property and did
in the office of the secretary of state by a mining and manufacturing business there,
"each and every corporation created or or transacting its affairs in this country at and
ganized under or by virtue of any govern- from its Tennessee office.
ment other than that of the state, of the

On the 20th day of June, 1893, C. W. Mccharacter named in the first section of this Clung & Co. and others filed an original genact, desiring to carry on its business” in the eral creditors' bill in the chancery court of state, of a copy of its charter or articles of Washington county, Tennessee, against this association, and the recording of an abstract company and others, alleging its insolvency of the same in the office of the register of and default in meeting and discharging its each county in which the corporation pro- current obligations; charging that it had poseş to carry on its business or to acquire made a conveyance in trust of certain pero any lands. 8 2.

sonal property in fraud of the rights of its The third section declares that, “such cor- other creditors, and asking the appointment porations shall be deemed and taken to be of a receiver and the administration of its corporations of this state, and shall be sub-affairs as an insolvent corporation. The ject to the jurisdictions of the courts of this court took jurisdiction of the corporation, state, and may sue and be sued therein in sustained the bill as a general creditors' bill, the mode and manner that is, or may be, by appointed a *receiver of its property in Ten-1243} law directed in the case of corporations nessee, administered its affairs in that state, created or organized under the laws of this and passed a decree adjudicating the rights state." $ 3.

and priorities of certain creditors. The fifth section provides:

No question is made in respect of the "3 5: That the corporations, and the prop- amount due to any one of the creditora erty of all corporations coming under the whose claims were presented. provisions of this act, shall be liable for all The company maintained its home office in the debts, liabilities, and engagements of the London, its managing director resided there said corporations, to be enforced in the man and after this suit was instituted liquidation ner provided by law, for the application of under the companies' acts of Great Britain the property of natural persons to the pay. was there ordered and begun. ment of their debts, engagements, and con

There 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. U. S., BOOK 43. 28


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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 tho 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 Among the creditors of the company at holders and owners of the debenture bonds the time this suit was instituted were the of the company are simple-contract creditors plaintiffs in error, namely: C. G. Blake, of said company, and stand upon the same whose residence and place of business was in footing in reference to the distribution of Ohio; Rogers, Brown, & Company, the mem- the assets of the company as all other of its bers of which also resided in Ohio and car- creditors residing out of the state of Tennesried on business in that state; and the Hull see;" and that the “portion of the chancel. Coal & Coke Company, a corporation of Vir- lor's decree giving priority of payment to ginia. In the intervening petitions filed by such of the creditors of *said company who[245) those creditors it was averred that the plain- reside in the United States of America, but tiffs in the general creditors' bill, residents not in the state of Tennessee, and to such of Tennessee, claimed priority of right in the creditors now residents of Tennessee who distribution of the assets of the insolvent dealt with the company in relation to its corporation over other creditors of the cor. Tennessee office, over all alien creditors of poration "citizens of the United States, but said company, be, and the same is hereby, not of the state of Tennessee;" and that the reversed, it being here adjudged that all the said statute was unconstitutional so far as it creditors of said company residing out of gave preferences and benefits to the plain the state of Tennessee must share equally tiffs or other citizens of Tennessee over the and ratably in the distribution of the funds petitioners or other citizens of the United of said company after the Tennessee creditStates.

ors shall have been paid in full.By the final decree of the chancery court

The cause was carried to the supreme of Washington county, it was, among other court of Tennessee, and so far as the plainthings, adjudged that the act of 1877 was tiffs in error are concerned was heard in that constitutional; that all of the creditors of court upon appeal from the court of chancery

the Enıbreeville Company residing in Tennes appeals, as well as upon writs of error to the [144]see were entitled to priority of satisfaction chancery court. out of its assets (after the payment out of

It was adjudged by the supreme court of the proceeds of the real estate of the claim the state that the act of March 19th, 1877, of the Pittsburgh Iron & Steel Engineering was in all respects a valid enactment, and Company) as against its other creditors who not in contravention of paragraph 2 of arwere "residents and citizens of other states ticle IV. or of the Fourteenth Amendment of the United States or other countries;” of the Constitution of the United States, nor that the creditors who were "citizens of other in contravention of any other provision of states of the United States, and who con. the National Constitution; that all of the tracted with the company as located and do- holders and owners of the debenture bonds ing business in Tennessee, are entitled to of the Embreeville Company were simpleshare ratably in its assets, being adminis. contract creditors of the company, and stood tered in this cause next after the payment upon the same footing with reference to the of the Pittsburgh Iron & Steel Engineering distribution of its assets as all of its other Company and the Tennessee creditors.

creditors who "reside out of the state of TenUpon 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 inge of the chancery court of appeals it was Company” who resided in the state of Tenstated 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 otler credjudged constitutional) all the creditors of itors of said company who do not reside in said Embreeville Company residing in Ten the state of Tennessee, whether they be resi. nessee are entitled to priority of satisfac- dents of other states of the Uniter States tion out of the assets of the Embreeville or of the Kingdom of Great Britain; that Company (after the payment out of the pro- all of the creditors of the Embreeville Freeceeds of the real estate of the claim of the hold Land, Iron, & Railway Company who Pittsburgh Iron & Steel Engineering Co.) reside out of the state of Tennessee, whether as against the other creditors of said com- they reside in other states of the United pany who are nonresidents and citizens of States or in the Kingdom of Great Britain, other states of the United States or other have the right and must share equally and countries; that the other creditors of the ratably in the distribution of sad funds of Embreeville Company who are citizens of the said company after the residents of the other states of the United States, and who state of Tennessee shall have been first paid contracted with the said Embreeville Com- in full. pany as located and doing business in the * The plaintiffs in error contend that the[240

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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 statuto 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 reson within its jurisdiction the equal protec- sided in, but were not citizens of, other tion of the laws."

states. The manifest purpose was to give to We have seen that by the third section of all Tennessee creditors priority over all credthe 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 interthe statute, were to be deemed and taken to pretation of the statute would defeat the obbe 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 inproperty of corporations doing business in fringes rights secured to the plaintiffs in erTennessee 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, the citizens of each state shall be entitled to or any part thereof, to the payment of debts, all privileges and immunities of citizens in over all simple-contract creditors, being resi- the several states. dents of any other country or countries. 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 with sion to consider whether it is repugnant to in its limits, and distribute such assets or the provision of the National Constitution their proceeds among creditors according to relating to citizens. We cannot accede to their respective rights. But may it exclude this view. The record shows that the liti. citizens of other states from such distribugation proceeded throughout upon the the- tion *until the claims of its own citizens shall(248) ory that the plaintiffs in error, Blake and have been first satisfied! In the administrathe persons composing the firm of Rogers, tion of the property of an insolvent foreign Brown, & Co., were citizens of Ohio, in which corporation by the courts of the state in state they resided, transacted business and which it is doing business, will the Consti. had their offices, and that the plaintiff in tution of the United States permit discrim. error, the Hull Coal & Coke Company, was ination against individual creditors of such a corporation of Virginia. The intervening corporations because oi their being citizens petition of the individual plaintiffs in error, of other states, and not citizens of the stato as we have seen, states that they were resi. in which such administration occurs? dents of Ohio, engaged in business in that

These questions are presented for our destate, their residence, offices and places of termination. Let us see how far they havo business being at the city of Cincinnati, and been answered by the former decisions of this that they were citizens of the United States, court. and not citizens of Tennessee. Although

This court has never undertaken to give these allegations might not be sufficient to any exact or comprehensive definition of the

show that those parties were citizens of Ohio words "privileges and immunities” in article [247] within the meaning of the statute "regulating IV. of the Constitution of the United States.

the jurisdiction of the circuit courts of the Referring to this clause, Mr. Justice Cur. United States (Robertson v. Cease, 97 U. S. tis, speaking for the court in Conner v. El. 646 [24: 1057]), they may be accepted as liott, 18 How. 591, 593 [15: 497, 498], said: sufficient for that purpose in the present

"We do not deem it needful to attempt to case, no question having been made in the define the meaning of the word 'privileges' in state court that the individual plaintiffs in this clause of the Constitution. It is safer, error were not citizens, but only residents of and more in accordance with the duty of a Ohio. Looking at the purpose and scope of be determined, in each case, upon a view of

judicial tribunal, to leave its meaning to the Tennessee statute, it is plain that the the particular rights asserted and denied words “residents of this state” refer to those therein. And especially is this true when we whose residence in Tennessee was such as in are dealing with so broad a provision, involv. dicated that their permanent home or habi- ing matters, not only of great delicacy and tation was there, without any present inten. importance, but which are of such a charac, tion of removing therefrom, and having the ter that any merely abstract definition could intention, when absent from that state, to scarcely be correct; and a failure to make it return therelo; such residence as apper. so would certainly produce mischief.". Nev; tained to or inhered in citizenship. And the ertheless, what has been said by this and words, in the same statute, “residents of any other courts upon the general subject will other country or countries” refer to those assist us in determining the particular queswhose respective habitations were not in 'tions now pressed upon our attention.

One of the leading cases in which the gen- I 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, Upon these grounds rests the decision in of right, to the citizens of all free govern. McCready v. Virginia, 94 U. S. 391, 395 (24: ments, and which have, at all times, been en- 248, 249], sustaining a statute of Virginia joyed by the citizens of the several states prohibiting the citizens of other states from which compose this Union from the time of planting oysters in a river in that state

their becoming free, independent, and sover where the tide ebbed and flowed. Chief Jus. (249Jeign. *What these fundamental principles tice Waite, speaking for the court in that

are, it would perhaps be more tedious than case, said: “These [the fisheries of the state)
difficult to enumerate. They may, however, remain under the exclusive control of the
be comprehended under the following general state, which has consequently the right, in
heads: Protection by the government; the its discretion, to appropriate its tide waters
enjoyment of life and liberty, with the right and their beds to be used by its people as a
to acquire and possess property of every common for taking and cultivating fish, so
kind, and to pursue and obtain happiness and far as it may be done without obstructing
safety; subject, nevertheless to such re navigation. Such an appropriation is in ef-
straints as the government may justly fect nothing more than a regulation of the use
prescribe for the general good of the whole. by the people of their common property. The
The right of a citizen of one state to pass right which the people of the state thus ac-
through or to reside in any other state for quire comes, not from their citizenship alone,
the purposes of trade, agriculture, profes- but from their citizenship and property com-
sional pursuits, or otherwise; to claim the bined. It is in fact a property right, and
benefit of the writ of habeas corpus; to in. not a mere privilege or immunity of citizen.
stitute and maintain actions of any kind in ship.” Consequently, the decision was that
the courts of the state; to take, hold, and the citizens of one state were not invested by
dispose of property, either real or personal; the Constitution of the United States "with
and an exemption from higher taxes or im- any interest in the common property of the
positions than are paid by the other citizens citizens of another state."
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 question to place the citizens of each state fundamental; to which may be added the upon the same footing with citizens of other elective franchise as regulated and

states, so far as the advantages resulting tablished by the laws Constitution of the state in which it is to be ex cerned. It relieves them from the disabili.

from citizenship in those states are conercised. 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 calculated (to use the expression of the preamble them; it insures to them in other states the to the corresponding provision in the old same freedom *possessed by the citizens of[251]

those states in the acquisition and enjoy. Articles of Confederation) the better to se. cure and perpetuate mutual friendship and ment of property and in the pursuit of hapintercourse anong the people of the different piness;, and it secures to them in other 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 380.

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, would have constituted little more than a bays, or waters in New Jersey, not wholly league of states; it would not have constiowned by some person residing in the state. tuted the Union which now exists." 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 (260)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 mer. sovereign having the power to regulate its chandise in Maryland, other than agricul. use. The court said: “The oyster beds be. 'tural products and articles there manufac.

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tured. This court said: “Attempt will not cases rest cannot, however, stand, if it be adbe made to define the words ‘privileges and judged to be in the power of one state, when immunities,' or to specify the rights which establishing regulations for the conduet of they are intended to secure and protect, be- private business of a particular kind, to give yond what may be necessary to the decision its own citizens essential privileges conof the case before the court. Beyond doubt nected with that business which it denies to those words are words of very comprehensive citizens of other states. By the statute in meaning, but it will be sufficient to say that question the British company was to be the clause plainly, and unmistakably secures deemed and taken to be a corporation of Ten. and protects the right of a citizen of one state nessee, with authority to carry on its busito pass into any other state of the Union for ness in that state. It was the right of cit. the purpose of engaging in lawful commerce, izens of Tennessee to deal with *it, as it was(253) trade, or business without molestation; to their right to deal with corporations created acquire personal property, to take and hold by Tennessee. And it was equally the right real estate, to maintain actions in the courts of citizens of other states to deal with that of the states, and to be exempt from any corporation. The state did not assume to higher taxes or excises than are imposed declare, even if it could legally have deby the state upon its own citizens. Compre- clared, that that company, being admitted to hensive as the power of the states is to lay do business in Tennessee, should transact and collect taxes and excises, it is neverthe business only with citizens of Tennessee, or less clear, in the judgment of the court, that should not transact business with citizens of the power cannot be exercised to any extent other states. No one would question the in a manner forbidden by the Constitution; right of the individual plaintiffs in error, and inasmuch as the Constitution provides although not residents of Tennessee, to sell that the citizens of each state shall be en- their goods to that corporation upon such titled to all privileges and immunities of terms in respect of payment as might be citizens in the several states, it follows that agreed upon, and to ship them to the corthe defendant might lawfully sell, or offer or poration at its place of business in that

expose for sale, within the district described state. But the enjoyment of these rights (262)in the indictment, any goods which the per- is materially obstructed by the statute in

manent residents of the state might sell, or question; for that statute, by its necessary offer or expose for sale in that district, with operation, excludes citizens of other states out being subjected to any higher tax or ex- from transacting business with that corpocise than that exacted by law of such perma- ration upon terms of equality with citizens nent residents.”

of Tennessee. By force of the statute alone, In the Slaughter-House Cases, 16 Wall. citizens of other states, if they contracted at 36, 77 [21: 394, 409], the court, referring all with the British corporation, must have to what was said in Paul v. Virginia, done so subject to the onerous condition that above cited, in reference to the scope if the corporation became insolvent its ag. and meaning of section two of article sets in Tennessee should first be applied to IV. of the Constitution, said: “The constitu- meet its obligations to residents of that tional provision there alluded to did not cre- state, although liability for its debts and enate those rights which it called privileges gagements was “to be enforced in the manner and immunities of citizens of the several provided by law for the application of the states. It threw around them in that clause property of natural persons to the payment no security for the citizen of the state in of their debts, engagements, and contracts." which they were claimed or exercised. Nor But, clearly, the state could not in that mode did it profess to control the power of the secure exclusive privileges to its own citistate governments over the rights of its own zens in matters of business. If a state should citizens. Its sole purpose was to declare to attempt, by statute regulating the distributhe several states that whatever those tion of the property of insolvent individuals rights, as you grant or establish them to among their creditors, to give priority to your own citizens, or as you limit or qualify, the claims of such individual creditors as er impose restrictions on their exercise, the were citizens of that state over the claims of same, neither more nor less, shall be the individual creditors citizens of other states, measure of the rights of citizens of other such legislation would be repugnant to the states within your jurisdiction.”

Constitution upon the ground that it with. In Cole v. Cunningham, 133 U. S. 107, 113, held from citizens of other states as such, 114 (33: 538,542], this court cited with ap- and because they were such, privileges proval the language of Justice Story, in his granted to citizens of the state enacting it. Commentaries on the Constitution, to the Can a different principle apply, as between effect that the object of the constitutional individual citizens of the several states, when guaranty was to confer on the citizens of the the assets to be distributed are the assets of several states "a general citizenship, and to an insolvent private corporation lawfully communicate all the privileges and immuni- engaged in business and having the power to[254) ties which the citizens of the same state contract with citizens residing in states would be entitled to under like circum- other than the one in which it is located ? stances, and this includes the right to insti. It is an established rule of equity that tute actions."

when a corporation becomes insolvent it is These principles have not been modified by so far civilly dead that its property may be any subsequent decision of this court. administered as a trust fund for the benefit

The_foundation upon which the above l of its stockholders and creditors (Graham v.

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