ject to a duty of fifty per centum, as this is the higher rate, and your verdict should be for the defendant. (4) That unless the jury should find that the goods in question are not specially provided for, and that by their style and character they are fitted only for use in making or ornamenting hats, then your verdict should be for the defendant." The court declined to give these instructions and the counsel for the defendant excepted as follows: (1) Because the judge declined to charge as requested in defendant's first, second, and fourth points, stating that those points were substantially covered by the answers to the plaintiff's points. (2) Because the judge declined to charge as requested in the defendant's third point. (3) Because the judge charged the jury that "if the evidence shows that the goods upon which the duty was charged are adapted to use and are used for various purposes other than for trimming hats, the jury must be satisfied that the use to which they are chiefly applicable, and for which they are employed, was in making or ornamenting hats, to bring them within the scope of the clause of the tariff act imposing a duty of twenty per cent." And that, "subject to the qualifications stated in the foregoing answer to the first point, the three remaining points are affirmed."

In support of these exceptions, it is argued by the solicitor general that the charge of the court, and the answers to the points of instruction requested by the respective counsel, misled the jury from the real point involved in the case to a foreign issue, by substantially instructing it that the inquiry was whether these materials had a predominant use for making and ornamenting hats, bonnets, and hoods, whereas the true construction of the statute required that the inquiry which should have been submitted to the jury was whether the materials imported were "braids, plaits, flats, laces, trimmings, willow sheets, and squares, * * * composed of straw, chip, *** used for making or ornamenting hats, bonnets, and hoods." The instruction of the court, it is said, was that any material, of which the predominant use was for the making or ornamenting of hats, bonnets, and hoods, not specially provided for, should be classified under this clause. It is contended that "the true construction is that the use of the material must not only be for making and ornamenting hats, bonnets, and hoods, but it must be in some of the forms fixed in the statute; that is, in the form of either braids, plaits, flats, laces, trimmings, tissues, willow sheets, or squares.' But this is an entire misconception of the charge of the court. There was no controversy in the evidence as to whether these velvet ribbons were or were not "trimmings." All the witnesses agreed that they were; it was so assumed throughout the case; it was expressly stated in the charge of the court to the jury that they must be "trimmings" within the sense of the section in order to justify a recovery. The court said expressly in its charge: "If they are hat trimmings, and used for making and ornamenting hats, then the rate of duty imposed was excessive, and the plaintiff is entitled to recover the excess." This necessarily implied that if they were not hat trimmings, the plaintiffs could not recover; and also that even if they were hat trimmings, but were not chiefly used for making and ornamenting hats, the plaintiffs would not be entitled to recover, because in the sentence immediately preceding in the charge, the court had said to the jury: "You will, therefore, determine to which use these articles in question are chiefly devoted." What the court charged the jury, therefore, was that in order to entitle the plaintiffs to recover, they must find that the velvet ribbons in question were "trimmings" used for making and ornamenting hats, and that they were "chiefly" used for that purpose. The jury were told: "If, however, in the determination of this question of fact, you find the articles to be chiefly used for other purposes, you will find for the defendant. The question is simply and purely one of fact, namely: What is the predominant use to which these articles are devoted? As you determine that question, you will return your verdict." The objection, therefore, to the charge of the court, that it would have authorized a recovery if the goods in

question were materials used for making or ornamenting hats, although not coming within the enumeration of the section as "braids, plaits, flats, laces, trimmings, tissues, willow sheets, and squares," is not well well taken. The court in fact did instruct the jury that they must find the goods in question to be "trimmings," chiefly used for making and ornamenting hats, bonnets, and hoods, composed of a material not otherwise specially enumerated or provided for. It is not suggested that the velvet ribbons are specially mentioned as subject to a duty by that name or description. It is true that there was no evidence showing that the exclusive commercial designation of such velvet ribbons was "trimmings," but all the witnesses spoke of the velvet ribbons in question as "trimmings," manifestly according to the natural meaning of the word, and because they were used to trim either hats or dresses; the real controversy being for which purpose as "trimmings" they were principally used. A further criticism, by way of objection, is made to that part of the charge excepted to wherein the judge states that "the jury must be satisfied that the use to which they (the goods) are chiefly applicable, and for which they were employed, was in making or ornamenting hats," etc. The point of this criticism is that the language, "and for which they were employed," "would require the collector to suspend the assessment until he should know how the goods were used or employed. That use or employment of the goods. might not take place for years after the importation was made. The law clearly did not intend the classification should be required to await such an uncertain event." This is hypercritical. The language does not admit of any such construction. It means for which they were habitually employed, or customarily employed, or usually employed, and not "for which they had been employed." It is impossible that any jury could have otherwise understood the instruction.

The remaining exception was on account of the refusal of the court to instruct the jury as requested by the counsel for the defendant in the third point, viz.: "That if the jury should find that the goods in question can properly be classified under Schedule M, act March 3, 1883, as trimmings used for making or ornamenting hats,' not specially enumerated or provided for in said act, and subject to a duty of twenty per centum ad valorem, and can also properly be classified as goods not specially enumerated or provided for, of which silk is the component material of chief value, and subject to a duty of fifty per centum ad valorem, then, as two rates of duty are applicable to the goods, they should be classified as subject to a duty of fifty per centum, as this is the higher rate, and your verdict should be for the defendant." The section of the Revised Statutes upon which this instruction was framed is section 2499, which provides: "If any non-enumerated article equally resembles two or more enumerated articles on which different rates of duty are chargeable, there shall be levied, collected, and paid on such non-enumerated article the same rate of duty as is chargeable on the article which it resembles paying the highest duty." The principle of this section, however, is not applicable to the circumstances of this case. The velvet ribbons were found by the jury to be trimmings chiefly used for making or ornamenting hats; that brought them within the operation of Schedule M of the act of March 3, 1883, fixing the duty at twenty per centum ad valorem; and being specially provided for by that section, they were excluded from the operation of all others. The contention which appears to have been made on behalf of the government on trial of the cause, that these velvet ribbons could not be classified as trimmings used for making or ornamenting hats, bonnets, and hoods, within the meaning of the section levying the duty of twenty per centum ad valorem, unless they were shown to have been used exclusively for that purpose, is not insisted upon by the solicitor general in this court. It was very properly abandoned, the charge of the court upon that point being, in our opinion,. clearly right.

The judgment of the circuit court is accordingly affirmed.

PEMBINA CONSOLIDATED SILVER MIN. & MILLING Co. v. COMMONWEALTH OF PENNSYLVANIA.

(March 19, 1888.)

1. CONSTITUTIONAL LAW-REGULATION OF COMMERCE-LICENSING FOREIGN CORPORATIONS.

Act Pa. June 7, 1879, prohibiting foreign corporations, except insurance companies, which do not invest or use their capital in that state, from keeping an office in that state for the use of its officers, stockholders, agents, or employes, unless it shall have first obtained a license therefor by paying one mill on each dollar of its authorized capital stock, is not in violation of Const. U. S. art. 1, § 8, cl. 3, vesting in congress power to regulate commerce among the states, there being no attempt to prohibit the transportation or sale of the corporation's products in the state. 2. SAME.

The requirement of a state that foreign corporations shall pay a license for the privilege of keeping an office within its limits, is not a tax upon the franchise of the corporation, its business or its property.

3. SAME-PRIVILEGES AND IMMUNITIES.

A corporation foreign to any given state cannot invoke the provision of Const. U. S. art. 4, § 2, cl. 1, that "citizens of each state shall be entitled to all privileges and immunities of citizens in the several states," against legislation in that state requiring such corporation to pay a license for the privilege of keeping an office within its limits; corporations not being citizens within the meaning of that clause. 4. SAME-EQUAL PROTECTION OF THE LAW.

A corporation foreign to any given state cannot invoke the fourteenth amendment to Const. U. S., that "no state shall deny to any person within its jurisdiction the equal protection of its laws," against legislation in such state requiring the payment of a license for the privilege of keeping an office therein.

In Error to the Supreme Court of the State of Pennsylvania.

In May, 1881, the Pembina Consolidated Silver Mining & Milling Company was incorporated under the laws of Colorado, with an authorized capital of $1,000,000, for the purpose of carrying on a general mining and milling business in that state. Its principal office is in Alpine, Colorado, and since July 1, 1881, it has had, and still has, an office in the city of Philadelphia, "for the use of its officers, stockholders, agents, and employes." On the 31st of October, 1881, the auditor general and treasurer of Pennsylvania assessed a tax against the corporation for "office license" from July 1, 1881, to July 1, 1882, at the rate of one-fourth of a mill on each dollar of its capital stock, which amounted to $250, and added to it a penalty of $125 for failure to take out a license. This tax was assessed and penalty imposed under section 16 of the act of the legislature of the commonwealth, approved June 7, 1879, entitled "An act to provide revenue by taxation.” The section provides as follows: "That from and after the 1st day of July, A. D. 1879, no foreign corporation, except foreign insurance companies, which does not invest and use its capital in this commonwealth, shall have an office or offices in this commonwealth for the use of its officers, stockholders, agents, or employes, unless it shall first have obtained from the auditor general an annual license so to do; and for said license every such corporation shall pay into the state treasury, for the use of the common wealth, annually, one-fourth of a mill on each dollar of capital stock which said company is authorized to have, and the auditor general shall not issue a license to any corporation until said license fee shall have been paid. The auditor general and state treasurer are hereby authorized to settle and have collected an account against any company violating the provisions of this section for the amount of such license fee, together with a penalty of fifty per centum for failure to pay the same: provided, that no license shall be necessary for any corporation paying a tax under any previous section of this act, or whose capital stock, or a majority thereof, is owned or controlled by a corporation of this state which does pay a tax under any previous section of this act." It is conceded that the corporation is not within the exception of the proviso of the act, as it pays no tax under any previous section. From this assessment, or settlement of the account against the corpov.8s.c.-47

It does

ration, as it is termed in the record, the corporation appealed to the court of common pleas of Dauphin county, on the ground, among others, that the said sixteenth section of the revenue act is in conflict with the clause of the constitution of the United States declaring that "congress shall have power to regulate commerce with foreign nations and among the several states, (article 1, § 8, cl. 3,) and also with the clause declaring that "the citizens of each state shall be entitled to all privileges and immunities of citizens in the several states," (article 4, § 2, cl. 1.) In that court the commonwealth filed a declaration in debt against the corporation for the amount claimed. not appear from the record that any answer or plea was filed to this declaration, but it is assumed that issue was joined, as counsel of the parties agreed that a trial by jury should be waived, and that the case should be submitted to the decision of the court, subject to a writ of error as in other cases, at the option of either party. The court of common pleas affirmed the validity of the assessment, and the corporation took the case on writ of error to the supreme court of the commonwealth, which affirmed the judgment of the common pleas. To review this judgment the case is brought here.

J. W. M. Newlin, for plaintiff in error. W. S. Kirkpatrick, Atty. Gen., and John F. Sanderson, Deputy Atty. Gen., for defendant in error.

Mr. Justice FIELD, after stating the facts as above, delivered the opinion of the court.

The only questions passed upon by the supreme court of Pennsylvania, which can be considered by us, are those which arise upon its ruling against the contention of the plaintiff in error that the statute of the commonwealth is in conflict with clauses of the federal constitution. Its ruling upon the conformity of the statute with the constitution of the common wealth does not come under our jurisdiction. The clauses of the federal constitution, with which it was urged in the state supreme court that the statute conflicts, are the one vesting in congress the power to regulate foreign and interstate commerce, the one declaring that the citizens of each state are entitled to the privileges and immunities of citizens in the several states, and the one embodied in the fourteenth amendment declaring that no state shall deny to any person within its jurisdiction the equal protection of the laws.

1. It is not perceived in what way the statute impinges upon the commercial clause of the federal constitution. It imposes no prohibition upon the transportation into Pennsylvania of the products of the corporation, or upon their sale in the commonwealth. It only exacts a license tax from the corporation when it has an office in the commonwealth for the use of its officers, stockholders, agents, or employes. The tax is not for their office, but for the office of the corporation; and the use to which it is put is presumably for the latter's business and interest. For no other purpose can it be supposed that the office would be hired by the corporation. The exaction of a license fee to enable the corporation to have an office for that purpose within the commonwealth is clearly within the competency of its legislature. It was decided long ago, and the doctrine has been often affirmed since, that a corporation created by one state cannot-with some exceptions, to which we shall presently refer do business in another state without the latter's consent, express or implied. In Paul v. Virginia, 8 Wall. 168, this court, speaking of a foreign corporation, (and under that definition the plaintiff in error, being created under the laws of Colorado, is to be regarded,) said: "The recognition of its existence even by other states, and the enforcement of its contracts made therein, depend purely upon the comity of those states; a comity which is never extended where the existence of the corporation, or the exercise of its powers, are prejudicial to their interests, or repugnant to their policy. Having no absolute right of recognition in other states, but depending for such recognition and the enforcement of its contracts upon their consent, it follows

as a matter of course that such consent may be granted upon such terms and conditions as those states may think proper to impose. They may exclude the foreign corporation entirely; they may restrict its business to particular localities; or they may exact such security for the performance of its contracts with their citizens as in their judgment will best promote the public interests. The whole matter rests in their discretion." A qualification of this doctrine was expressed in Telegraph Co. v. Telegraph Co., 96 U. S. 12, so far as it applies to corporations engaged in commerce under the authority or with the permission of congress. The act of July 24, 1866, "to aid in the construction of telegraph lines, and to secure to the government the use of the same for postal, military, and other purposes," which was considered in that case, declared that any telegraph company then organized, or which might thereafter be organized, under the laws of any state, should have the right to construct, maintain, and operate lines of telegraph through and over any portion of the public domain of the United States, over and along any of the military or post roads of the United States, which had been or might thereafter be declared such by act of congress, and over, under, or across the navigable streams or waters of the United States," upon certain conditions specified therein; and this court held that the telegraph, as an agency of commerce and intercommunication, came under the controlling power of congress, as against any hostile state legislation; and that the Western Union Telegraph Company, having accepted the conditions of the act, could not be excluded by another state from prosecuting its business within her jurisdiction. The legislature of Florida had granted to another company, for 20 years, the exclusive right to establish and maintain telegraph lines in certain counties of the state, but this exclusive grant was adjudged to be invalid as against the company acting under the law of congress. And undoubtedly a corporation of one state, employed in the business of the general government, may do such business in other states without obtaining a license from them. Thus, to take an illustration from the opinion of Mr. Justice BRADLEY in a case recently decided by him, “if congress should employ a corporation of ship-builders to construct a man-ofwar, they would have the right to purchase the necessary timber and iron in any state of the Union," and, we may add, without the permission and against the prohibition of the state. Stockton v. Railroad Co., 32 Fed. Rep. 9, 14. These exceptions do not touch the general doctrine declared as to corporations not carrying on foreign or interstate commerce, or not employed by the government. As to these corporations, the doctrine of Paul v. Virginia applies. The Colorado corporation does not come within any of the exceptions. Therefore, the recognition of its existence in Pennsylvania, even to the limited extent of allowing it to have an office within its limits for the use of its officers, stockholders, agents, and employes, was a matter dependent on the will of the state. It could make the grant of the privilege conditional upon the payment of a license tax, and fix the sum according to the amount of the authorized capital of the corporation. The absolute power of exclusion includes the right to allow a conditional and restricted exercise of its corporate powers within the state. Bank v. Earle, 13 Pet. 519; Insurance Co. v. French, 18 How. 404; Ducat v. Chicago, 10 Wall. 410; St. Clair v. Cox, 106 U. S. 350, 1 Sup. Ct. Rep. 354.

We do not perceive the pertinency of the position advanced by counsel that the tax in question is void as an attempt by the state to tax a franchise not granted by her, and property or business not within her jurisdiction. The fact is otherwise. No tax upon the franchise of the foreign corporation is levied, nor upon its business or property without the state. A license tax only is exacted as a condition of its keeping an office within the state for the use of its officers, stockholders, agents, and employes,-nothing more and nothing less; and in what way this can be considered as a regulation of interstate commerce is not apparent.