In an interstate contract for sale of a complicated ice-making
plant, it was stipulated that the parts should be shipped into the
purchaser's state and the plant there assembled and tested under
the supervision of an expert to be sent by the seller. The
purchasers agreed to pay him a
per diem while so engaged
and to furnish mechanics for his assistance, and their obligation
to accept the plant was made dependent on the test. The erection
took three weeks, and the test a week more.
Held that
these provisions as to the services of the expert were germane to
the transaction as an interstate contract, and did not involve the
doing of local business subjecting the seller to regulations of
Texas concerning foreign corporations.
Browning v.
Waycross, 233 U. S. 16, and
General Railway Signal Co. v. Virginia, 246 U.
S. 500, distinguished.
172 S.W. 206 reversed.
The case is stated in the opinion.
MR. CHIEF JUSTICE WHITE delivered the opinion of the Court.
The York Manufacturing Company, a Pennsylvania corporation, sued
for the amount due upon a contract for the purchase of
ice-manufacturing machinery and to foreclose a lien upon the same.
By answer, the defendants alleged that the plaintiff was a foreign
corporation; that
Page 247 U. S. 22
it maintained an office and transacted business in Texas without
having obtained a permit therefor, and was hence under Texas
statutes not authorized to prosecute the suit in the courts of the
state, and a dismissal was prayed. In reply, the plaintiff averred
that the contract sued on was interstate commerce, and that the
state statute, if held to apply, was repugnant to the commerce
clause of the Constitution of the United States. At the trial, it
was shown without dispute that the contract covered an ice plant
guaranteed to produce three tons of ice a day, consisting of gas
compression pumps, a compressor, ammonia condensers, freezing tank
and cans, evaporating coils, a brine agitator, and other machinery
and accessories, including apparatus for utilizing exhaust steam
for making distilled water for filling the ice cans. These parts of
machinery, it was provided, were to be shipped from Pennsylvania to
the point of delivery in Texas, and were there to be erected and
connected. This work, it was stipulated, was to be done under the
supervision of an engineer to be sent by the York Manufacturing
Company for whose services a fixed
per diem charge of $6
was to be paid by the purchasers, and who should have the
assistance of mechanics furnished by the purchasers, the
supervision to include not only the erection, but the submitting of
the machinery to a practical test in operation before the
obligation to finally receive it would arise. It was moreover
undisputed that these provisions were carried out; that about three
weeks were consumed in erecting the machinery and about a week in
practically testing it, when, after a demonstration of its
successful operation, it was accepted by the purchasers.
The trial court, not doubting that the contract of sale was
interstate commerce, nevertheless concluding that the stipulation
as to supervision by an engineer to be sent by the seller was
intrastate commerce, and wholly separable from the interstate
transaction, held that the seller, by carrying
Page 247 U. S. 23
out that provision, had engaged in local business in the state,
and, as the permit required by the state statutes had not been
secured, gave effect to the statutes and dismissed the suit. The
case is here to review the action of the court below sustaining
such conclusion, its judgment being that of the court of last
resort of the state in consequence of the refusal of the supreme
court of the state to allow a writ of error.
Referring to a previous ruling (
Leschen & Sons Rope Co.
v. Moser, 159 S.W. 1018) in which it had held that the
performance by a contractor of the duty of supervising the
construction of a complex system of tramways did not constitute a
doing of business within the state because it was relevant to and a
part of the main contract for the material from which the road was
to be constructed which, was interstate commerce, the court below
concluded that that case had been by it mistakenly decided, and
therefore should be overruled and not applied in this. The
conclusion as to previous error committed, the court said, was
persuasively the result of the ruling in
Browning v.
Waycross, 233 U. S. 16, which
it treated as here conclusively determining that the performance of
the contract for the supervision by the engineer was purely
intrastate commerce, and subject to be treated as such although it
formed a part of the stipulations of the principal contract of
sale, conceded to be interstate commerce.
But we are of opinion this decision was erroneous whether it be
examined from the point of view of what was assumed to be the
controlling effect of the ruling in the
Waycross case or
whether it be tested by the elementary doctrines as to what
constitutes interstate commerce. In the first place, the
Waycross case concerned merely the right of the City of
Waycross to collect a charge against a person who was carrying on a
business of erecting lightning rods as the agent of one who had
sold the rods in another state and shipped them to Waycross under
an
Page 247 U. S. 24
agreement after their arrival to erect them. The case turned
exclusively upon the nature and character of the business of
erecting lightning rods and the relevant or appropriate relation to
interstate commerce of a stipulation in an interstate contract of
sale of such rods providing for their erection when delivery under
the sale was made. As it was determined that the business of
erecting lightning rods bore no relevant or appropriate relation to
the contract made for the sale of such rods, it was decided that
the contract for the erection of the rods did not lose its local
character simply because it was made a part of an interstate
commerce contract for the sale of the rods, any more than would a
contract for materials with which to build a house cause the
building of the house to be a transaction of interstate commerce,
and not local business. But the broad distinction which is
established by the statement just made between what was decided in
the
Waycross case and the question here presented does not
rest alone upon the implication resulting from what was under
consideration in that case, but moreover expressly results from the
fact that, in the
Waycross case, through abundance of
precaution, attention was directed to the fact that the ruling
there made was not controlling as to a case where the service to be
done in a state as the result of an interstate commerce sale was
essentially connected with the subject matter of the sale -- that
is, might be made to appropriately inhere in the duty of
performance. 233 U.S.
233 U. S.
23.
As, in the second place, since the ruling in
McCulloch
v. Maryland, 4 Wheat. 316, there has been no doubt
that the interstate commerce power embraced that which is relevant
or reasonably appropriate to the power granted, so also from such
doctrine there can be no doubt that the right to make an interstate
commerce contract includes in its very terms the right to
incorporate into such contract provisions which are relevant and
appropriate to the contract
Page 247 U. S. 25
made. The only possible question open therefore is: was the
particular provision of the contract for the service of an engineer
to assemble and erect the machinery in question at the point of
destination and to practically test its efficiency before complete
delivery relevant and appropriate to the interstate sale of the
machinery? When the controversy is thus brought in last analysis to
this issue, there would seem to be no room for any but an
affirmative answer. Generically, this must be unless it can be said
that an agreement to direct the assembling and supervision of
machinery whose intrinsic value largely depends upon its being
united and made operative as a whole is not appropriate to its
sale. The consequence of such a ruling, if made in this case, would
be particularly emphasized by a consideration of the functions of
the machinery composing the plant which was sold, of its
complexity, of the necessity of its aggregation and unison with
mechanical skill and precision in order that the result of the
contract of sale -- the ice plant purchased -- might come into
existence. In its essential principle, therefore, the case is
governed by
Caldwell v. North Carolina, 184
U. S. 622,
Rearick v. Pennsylvania,
203 U. S. 507, and
Dozier v. Alabama, 218 U. S. 124. In
fact, those cases were relied upon in the
Waycross case as
supporting the contention that a mere agreement for the erection of
lightning rods in a contract made concerning the shipment of such
rods in interstate commerce caused the act of erection to be itself
interstate commerce. But the basis upon which the cases were held
to be not apposite -- that is, the local characteristic of the work
of putting up lighting rods -- not only demonstrates beyond doubt
the mistake concerning the ruling as to the
Waycross case
which was below committed, but serves unerringly to establish the
soundness of the distinction by which the particular question
before us is brought within the reach of interstate commerce.
Of course, we are concerned only with the case before
Page 247 U. S. 26
us -- that is, with a contract inherently relating to and
intrinsically dealing with the thing sold, the machinery and all
its parts constituting the ice plant. This view must be borne in
mind in order to make it clear that what is here said does not
concern the subject passed on in
General Railway Signal Co. v.
Virginia, 246 U. S. 500,
since, in that case, the work required to be done by the contract
over and above its inherent and intrinsic relation to the subject
matter of the interstate commerce contract involved the performance
of duties over which the state had a right to exercise control
because of their inherent intrastate character. In fact, the case
last referred to, when looked at from a broad point of view, is but
an illustration of the principle applied in the
Waycross
case to the effect that that which was inherently intrastate did
not lose its essential nature because it formed part of an
interstate commerce contract to which it had no necessary relation.
And this truth, by a negative pregnant, states the obverse view
that that which is intrinsically interstate and immediately and
inherently connected with interstate commerce is entitled to the
protection of the Constitution of the United States resulting from
that relation.
It follows, therefore, that the judgment must be, and it is,
reversed, and the case remanded to the court below for further
proceedings not inconsistent with this opinion.
And it is so ordered.
MR. JUSTICE PITNEY dissents.