The reasonable construction of a state statute relating to
foreign corporations doing business within the state does not
include the doing of a single act or the making of a single
contract, but does include a continuous series of acts by an agent
continuously within the state.
Cooper Manufacturing Company v.
Ferguson, 113 U. S. 727.
A foreign corporation engaged in teaching by correspondence and
which continuously has an agent in a state securing scholars and
receiving and forwarding the money obtained from them is doing
business in the state, and such a corporation does business in
Kansas within the meaning of § 1283 of the general statutes of that
1901.
Commerce is more than traffic; it is intercourse, and the
transmission of intelligence among the states cannot be obstructed
or unnecessarily encumbered by state legislation.
Gibbons v.
Ogden, 9 Wheat. 1;
Pensacola Telegraph Co. v.
Western Union Telegraph Co., 96 U. S. 1.
Intercourse or communication between persons in different states
through the mails and otherwise, and relating to matters of regular
continuous business, such as teaching by correspondence, and the
making of contracts relating to the transportation thereof, is
commerce among the states within the commerce clause of the federal
Constitution.
A state statute which makes it a condition precedent to a
foreign corporation's engaging in a legitimate branch of interstate
commerce to obtain what practically amounts to a license to
transact such business is a burden and restriction upon interstate
commerce and as such is unconstitutional under the commerce clause
of the federal Constitution, and so
held as to the
requirements of § 1283, General Laws of Kansas of 1901, when
applied to a foreign corporation carrying on the business of
teaching persons in that state by correspondence conducted from the
state in which it is organized.
Quaere how far a foreign corporation carrying on
business in a state may claim equality of treatment with
individuals in respect to the right to sue and defend in the courts
of that state; but where a condition precedent to a foreign
corporation's doing business at all in a state is unconstitutional,
the further condition that it cannot
Page 217 U. S. 92
maintain any action in the courts of the state until it has
complied with such unconstitutional condition is also stricken down
as being inseparable therefrom.
Where a statute is unconstitutional in part, the whole statute
must be deemed invalid except as to such parts as are so
disconnected with the general scope that they can be separably
enforced, and so
held as to the provisions in § 1283 of
the General Laws of Kansas of 1901 against a foreign corporation's
maintaining any action until it has complied with another provision
as to filing a detailed statement which is unconstitutional as to
foreign corporations engaged in interstate commerce.
76 Kan. 328 reversed.
The facts, which involve the constitutionality of 1283 of the
General Statutes of Kansas of 1901, are stated in the opinion.
Page 217 U. S. 99
MR. JUSTICE HARLAN delivered the opinion of the Court.
This action was brought by the International Textbook Company in
one of the courts of Kansas -- the court of Topeka -- to recover
from Pigg, the defendant in error, the sum of $79.60, with
interest, as due the plaintiff under a written contract between him
and that company, made in 1905. The case was tried upon agreed
facts, and judgment was rendered in favor of the defendant for his
costs. That judgment was affirmed in a state district court, which
held that the plaintiff was not entitled to maintain the action,
and the latter judgment was affirmed by the Supreme Court of
Kansas.
It is assigned for error that the final judgment -- based upon
certain provisions of the statutes of Kansas, to be presently
referred to -- was in violation of the company's rights under the
Constitution of the United States.
The facts agreed to, using substantially the language of the
parties make substantially the following case:
The International Textbook Company is a Pennsylvania
corporation, and the proprietor of what is known as the
International Correspondence Schools at Scranton, in that
commonwealth. Those schools have courses in architecture,
chemistry, civil, mechanical, electrical, and steam engineering,
English branches, French, German, mathematics and mechanics,
pedagogy, plumbing, heating, telegraphy, and many other subjects.
It has a capital stock, and the profits arising from its business
are distributed in dividends, or applied otherwise, as the company
may elect. The executive offices of the company, as well as the
teachers and instructors employed by it, reside and exercise their
respective functions at Scranton.
Page 217 U. S. 100
Its business is conducted by preparing and publishing
instruction papers, textbooks, and illustrative apparatus for
courses of study to be pursued by means of correspondence, and the
forwarding, from time to time, of such publications and apparatus
to students. In the conduct of its business, the company employs
local or traveling agents, called solicitor-collectors, whose
duties are to procure and forward to the company at Scranton, from
persons in a specified territory, on blanks furnished by it,
applications for scholarships in its correspondence schools, and
also to collect and forward to the company deferred payments on
scholarships. In order that applicants may adapt applications to
their needs, each solicitor-collector is kept informed by
correspondence with the company of the fees to be collected for the
various scholarships offered, and of the contract charges to be
made for cash or deferred payments, as well as the terms of payment
acceptable to the company. In conformity with the contract between
the company and its scholars, the scholarship and instruction
papers, textbooks and illustrative apparatus called for under each
accepted application are sent by the company from Scranton directly
to the applicant, and instruction is imparted by means of
correspondence through the mails, between the company at its office
in that city, and the applicant at his residence in another
state.
During the period covered by the present transaction, the
company had a solicitor-collector for the territory that included
Topeka, Kansas, and he solicited students to take correspondence
courses in the plaintiff's schools. His office in Kansas was
procured and maintained at his own expense, for the purpose of
furthering the procuring of applications for scholarships and the
collection of fees therefor. The company had no office of its own
in that state. The solicitor-collector was paid a fixed salary by
the company and a commission on the number of applications obtained
and the collections made. He sent daily reports to the company for
his territory, those reports showing that for March, 1906, the
aggregate collections
Page 217 U. S. 101
on scholarships and deferred payments on subscriptions
approached $500.
At the date of the agreement sued on, and at the time this suit
was brought, numerous persons in Topeka were taking the plaintiff's
course of instruction by correspondence through the mails. The
contracts for those courses were procured by its
solicitor-collector assigned to duty in Kansas, and, as stated,
payments thereon were collected and remitted by him to the
plaintiff at Scranton.
The written contract in question, signed by the defendant at
Topeka, Kansas, and accepted by the company at Scranton, showed
that he had subscribed for a scholarship covering a course of
instruction by correspondence in commercial law, and had agreed to
pay therefor $84, in installments. When this suit was brought,
there remained unpaid on the principal of that subscription the sum
of $79.60.
The present action was brought to recover that sum, with
interest, as due the company under the defendant's contract with
it. The defendant did not deny making the contract, nor that he was
indebted to the company in the amount for which he was sued. But it
was adjudged, in conformity with his contention, that, by reason of
the company's
failure to comply with certain provisions of the
statutes of Kansas, it was not entitled to maintain this
action in a court of Kansas.
We will now refer to the provisions of the Kansas statute under
which the Textbook Company was held not to be entitled to maintain
the present action in the courts of the state. The statute, the
plaintiff alleges, cannot be applied to it without violating its
rights under the Constitution of the United States.
By § 1260 of the Kansas General Statutes of 1901, it is
provided, among other things, that a corporation organized under
the laws of any other state, territory, or foreign country, and
seeking to do business in Kansas, may make application to the state
charter board, composed of the attorney general, the Secretary of
State, and the state bank commissioner, for "permission"
Page 217 U. S. 102
to engage in business in that state as a foreign corporation. It
is necessary that the application should be accompanied by a fee of
$25, and, as a condition precedent to obtaining authority to
transact business in the state, a corporation of another state was
required to file in the office of the Secretary of State its
written consent, irrevocable, that process against it might be
served upon that officer. § 1261. In passing upon the application,
the charter board is authorized to make special inquiry in
reference to the solvency of the corporation, and if they
determined that such corporation was properly organized in
accordance with the laws under which it was incorporated, "that its
capital is unimpaired, and that it is organized for a purpose for
which a domestic corporation may be organized" in Kansas, then its
application is to be granted, and a certificate issued, setting
forth the fact that "the application has been granted, and that
such foreign corporation may engage in business in this state."
Before filing its charter or a certified copy thereof with the
Secretary of State, the corporation is required to pay to the state
treasurer, for the benefit of the "permanent school fund," a
specified percent of its capital stock. §§ 1263, 1264. The
last-named section was the subject of extended examination in
Western Union Tel. Co. v. Kansas, recently decided,
216 U. S. 1, and was
held to be unconstitutional in its application to the Western Union
Telegraph Company, seeking to do local business in Kansas.
But the section which controlled the decision by the state court
in the present case is § 1283, which is as follows:
"It shall be the duty of the president and secretary or of the
managing officer of each corporation for profit, doing business in
this state, except banking, insurance, and railroad corporations,
annually, on or before the 1st day of August, to prepare and
deliver to the Secretary of State a complete detailed statement of
the condition of such corporation on the 30th day of June next
preceding. Such statement shall set forth and exhibit the
following, namely: 1st. The authorized capital
Page 217 U. S. 103
stock. 2d. The paid-up capital stock. 3d. The par value and the
market value per share of said stock. 4th. A complete and detailed
statement of the assets and liabilities of the corporation. 5th. A
full and complete list of the stockholders, with the post office
address of each, and the number of shares held and paid for by
each. 6th. The names and post office addresses of the officers,
trustees, or directors and manager elected for the ensuing year,
together with a certificate of the time and manner in which such
election was held . . . and the failure of any such corporation to
file the statement in this section provided for within ninety days
from the time provided for filing the same shall work the
forfeiture of the charter of any corporation organized under the
laws of this state, and the charter board may at any time
thereafter, declare the charter of such corporation forfeited, and
upon the declaration of any such forfeiture, it shall be the duty
of the attorney general to apply to the district court of the
proper county for the appointment of a receiver to close out the
business of such corporation, and such failure to file such
statement by any corporation doing business in this state, and
not organized under the laws of this state, shall work a
forfeiture of its right or authority to do business in this
state, and the charter board may at any time declare such
forfeiture, and shall forthwith publish such declaration in the
official state paper. . . . No action shall be maintained or
recovery had in any of the courts of this state by any corporation
doing business in this state without
first obtaining the
certificate of the Secretary of State that statements provided for
in this section [§ 1283] have been properly made."
Laws 1898, c. 10, § 12, as amended by Laws 1901, c. 125, §
3.
1. In view of the nature and extent of the business of the
International Textbook Company of Kansas, the first inquiry is
whether the statutory prohibition against the maintaining of an
action in a Kansas court by "any corporation
doing business in
this [that]
state" embraces the plaintiff
corporation. It must be held, as the state court held, that it
does, for
Page 217 U. S. 104
it is conceded that the Textbook Company did not, before
bringing this suit, make, deliver, and file with the Secretary of
State either the statement or certificate required by § 1283, and
upon any reasonable interpretation of the statute, that company,
both at the date of the contract sued on, and when this action was
brought, must be held as "
doing business" in Kansas. It
had an agent in the state, who was employed to secure scholars for
the schools conducted by correspondence from Scranton, and to
receive and forward any money obtained from such scholars. Its
transactions in Kansas, by means of which it secured applications
from numerous persons for scholarships, were not single or casual
transactions, such as might be deemed incidental to its general
business as a foreign corporation, but were parts of its regular
business continuously conducted in many states for the benefit of
its correspondence schools. While the Supreme Court of Kansas has
distinctly held that the statute did not embrace single
transactions that were only incidentally necessary to the business
of a foreign corporation, it also adjudged that the business done
by the Textbook Company in Kansas was not of that kind, but
indicated a purpose to regularly transact its business from time to
time in Kansas, and therefore it was to be regarded as doing
business in that state within the meaning of the statute, and that
it "was the intention of the legislature that the state should
reach every continuous exercise of a foreign franchise," and that
it should apply even where the business of the foreign corporation
was "purely interstate commerce."
Deere v. Wyland, 69 Kan.
255, 257-258;
State v. Book Co., 65 Kan. 847;
Thomas
v. Remington Paper Co., 67 Kan. 599;
Commission Co. v.
Haston, 68 Kan. 749. In our judgment, those rulings as to the
scope of the statute were correct. They were in substantial harmony
with the construction placed by this Court upon a Colorado statute
somewhat similar to the Kansas act. A statute passed in execution
of a provision in the Colorado Constitution required foreign
corporations, as a condition of their authority "to do business" in
that state, to make and file with the Secretary of
Page 217 U. S. 105
State a certificate covering certain specified matters. An Ohio
corporation having made in Colorado a contract for the sale of
machinery, to be sent to it from the latter state to Ohio, and the
vendor having failed to perform the tract, a suit was brought
against him in the federal court, sitting in Colorado. One of the
defenses was the failure of the Ohio corporation to make and file
with the Secretary of State the certificate required by the
Colorado statute before it should be "authorized or permitted to do
any business" in Colorado. It became necessary to inquire whether
the Ohio corporation, by reason of the above isolated contract, did
business in Colorado within the meaning of the Constitution and
laws of the latter state. This Court said:
"Reasonably construed, the Constitution and statute of Colorado
forbid not the doing of a single act of business in the state, but
the carrying on of business by a foreign corporation without the
filing of the certificate and the appointment of an agent, as
required by the statute. . . . The making in Colorado of the one
contract sued on in this case, by which one party agreed to build
and deliver in Ohio certain machinery and the other party to pay
for it, did not constitute a carrying on of business in Colorado. .
. . To require such a certificate as a prerequisite to the doing of
a single act of business when there was no purpose to do
any other business or have a place of business in the state would
be unreasonable and incongruous."
Cooper Mfg. Co. v. Ferguson, 113 U.
S. 727,
113 U. S. 728,
113 U. S.
734.
In view of the agreed facts and the principles announced both by
the Kansas supreme court and by this Court, we hold that, within
the meaning of § 1283 of the Kansas statute, the International
Textbook Company was doing business in the latter state at the time
the contract in question was made, and was therefore within the
terms of that section.
2. But this view as to the meaning of the Kansas statute does
not necessarily lead to an affirmance of the judgment below, if, as
the plaintiff contends, the business in which it is regularly
engaged is interstate in its nature, and if the statute,
Page 217 U. S. 106
by its necessary operation, materially or directly burdens that
business.
It is true that the business in which the International Textbook
Company is engaged is of a somewhat exceptional character, but, in
our judgment, it was, in its essential characteristics, commerce
among the states within the meaning of the Constitution of the
United States. It involved, as already suggested, regular and
practically continuous intercourse between the Textbook Company,
located in Pennsylvania, and its scholars and agents in Kansas and
other states. That intercourse was conducted by means of
correspondence through the mails with such agents and scholars.
While this mode of imparting and acquiring an education may not be
such as is commonly adopted in this country, it is a lawful mode to
accomplish the valuable purpose the parties have in view. More than
that, this mode -- looking at the contracts between the Textbook
Company and its scholars -- involved the transportation from the
state where the school is located to the state in which the scholar
resides, of books, apparatus, and papers, useful or necessary in
the particular course of study the scholar is pursuing, and in
respect of which he is entitled, from time to time, by virtue of
his contract, to information and direction. Intercourse of that
kind, between parties in different states -- particularly when it
is in execution of a valid contract between them -- is as much
intercourse in the constitutional sense as intercourse by means of
the telegraph -- "a new species of commerce," to use the words of
this Court in
Pensacola Telegraph Co. v. Western Union
Telegraph Co., 96 U. S. 1,
96 U. S. 9. In the
great case of
Gibbons v.
Ogden, 9 Wheat. 1,
22 U. S. 189,
this Court, speaking by Chief Justice Marshall, said: "Commerce,
undoubtedly, is traffic; but it is something more; it is
intercourse." Referring to the constitutional power of
Congress to regulate commerce among the states and with foreign
countries, this Court said in the
Pensacola case, just
cited, that
"it is not only the right, but the duty, of Congress, to see to
it that
intercourse among the states and
the
transmission
Page 217 U. S. 107
of intelligence are not obstructed or unnecessarily
encumbered by state legislation."
This principle has never been modified by any subsequent
decision of this Court.
The same thought was expressed in
Western Union Tel. Co. v.
Pendleton, 122 U. S. 347,
122 U. S. 356,
where the Court said:
"Other commerce deals only with persons, or with visible and
tangible things. But the telegraph transports nothing visible and
tangible; it carries only
ideas, wishes, orders, and
intelligence."
It was said in the Circuit Court of Appeals for the Eighth
Circuit, speaking by Judge Sanborn, in
Butler Bros. Shoe Co. v.
United States Rubber Co., 156 F. 1, 17, that
"all interstate commerce is not sales of goods. Importation into
one state from another is the indispensable element, the test, of
interstate commerce, and every negotiation, contract, trade, and
dealing between citizens of different states, which contemplates
and causes such importation, whether it be of goods, persons,
or information, is a transaction of interstate
commerce."
If intercourse between persons in different states by means of
telegraphic messages conveying intelligence or information is
commerce among the states, which no state may directly burden or
unnecessarily encumber, we cannot doubt that intercourse or
communication between persons in different states, by means of
correspondence through the mails, is commerce among the states
within the meaning of the Constitution, especially where, as here,
such intercourse and communication really relate to matters of
regular, continuous business, and to the making of contracts and
the transportation of books, papers, etc., appertaining to such
business. In our further consideration of this case, we shall
therefore assume that the business of the Textbook Company, by
means of correspondence through the mails and otherwise between
Kansas and Pennsylvania, was interstate in its nature.
3. We must next inquire whether the statute of Kansas, if
applied to the International Textbook Company, would directly
burden its right by means of correspondence through the mails and
by its agents, to secure written agreements with
Page 217 U. S. 108
persons in other states, whereby such persons, for a valuable
consideration, contract to pay a given amount for scholarships in
its correspondence schools, and to have sent to them, as found
necessary, from time to time, books, papers, apparatus, and
information, needed in the prosecution, in their respective states,
of the particular study which the scholar has elected to pursue
under the guidance of those who conduct such schools at Scranton?
Let us see what effect the statute, by its necessary operation,
must have on the conduct of the company's business.
In the first place, it is made a condition precedent to the
authority of a corporation of another state, except banking,
insurance, and railroad corporations, to do business in Kansas,
that it shall prepare, deliver,
and file with the Secretary of
State a detailed "statement," showing the amount of the
authorized, paid-up, par, and market value of, its capital stock,
its assets and liabilities, a list of its stockholders, with their
respective post office addresses, and the shares held and paid for
by each, and the names and post office addresses of the officers,
trustees, or directors and managers.
In the next place, the statute denies to the corporation doing
business in Kansas the right to maintain an action in a Kansas
court
unless it shall first obtain a certificate of the
Secretary of State to the effect that the statement required by §
1283
has been properly made.
Was it competent for the state to prescribe, as a condition of
the right of the Textbook Company to do interstate business in
Kansas, such as was transacted with Pigg, that it should prepare,
deliver, and file with the Secretary of State the statement
mentioned in § 1283? The above question must be answered in the
negative upon the authority of former adjudications by this Court.
A case in point is
Crutcher v. Kentucky, 141 U. S.
47,
141 U. S. 56-57,
often referred to and never qualified by any subsequent decision.
That case arose under a statute of Kentucky regulating agencies of
foreign express companies. The statute required as a condition of
the right
Page 217 U. S. 109
of the agent of an express company not incorporated by the laws
of Kentucky, to do business in that commonwealth, to take out a
license from the state auditor, and to make and file in the
auditor's office a statement showing that the company had an actual
capital of a given amount, either in cash or in safe investments,
exclusive of costs. These requirements were held by this Court to
be in violation of the Constitution of the United States in their
application to foreign corporations engaged in interstate commerce.
The Court said:
"If the subject was one which appertained to the jurisdiction of
the state legislature, it may be that the requirements and
conditions of doing business within the state would be promotive of
the public good. It is clear, however, that it would be a
regulation of interstate commerce in its application to
corporations or associations engaged in that business, and that is
a subject with belongs to the jurisdiction of the national, and not
the state, legislature. Congress would undoubtedly have the right
to exact from associations of that kind any guaranties it might
deem necessary for the public security, and for the faithful
transaction of business, and as it is within the province of
Congress, it is to be presumed that Congress has done, or will do,
all that is necessary and proper in that regard. Besides, it is not
to be presumed that the state of its origin has neglected to
require from any such corporation proper guaranties as to capital
and other securities necessary for the public safety. If a
partnership firm of individuals should undertake to carry on the
business of interstate commerce between Kentucky and other states,
it would not be within the province of the state legislature
to
exact conditions on which they should carry on their business, nor
to require them to take out a license therefor. To carry on
interstate commerce is not a franchise or a privilege granted by
the state; it is a right which every citizen of the United States
is entitled to exercise under the Constitution and laws of the
United States, and the accession of mere corporate facilities, as a
matter of convenience in carrying on their business,
Page 217 U. S. 110
cannot have the effect of depriving them of such right, unless
Congress should see fit to interpose some contrary regulation on
the subject."
Again, in the same case:
"Would anyone pretend that a state legislature could prohibit a
foreign corporation -- an English or a French transportation
company, for example -- from coming into its borders and landing
goods and passengers at its wharves, and soliciting goods and
passengers for a return voyage, without first obtaining a license
from some state officer
and filing a sworn statement as to the
amount of its capital stock paid in? And why not? Evidently
because the matter is not within the province of state
legislation, but within that of national legislation."
Further, in the same case:
"We do not think that the difficulty is at all obviated by the
fact that the express company, as incidental to its main business
(which is to carry goods between different states), does also some
local business by carrying goods from one point to another within
the State of Kentucky. This is probably quite as much for the
accommodation of the people of that state as for the advantage of
the company. But whether so or not, it does not obviate the
objection that the regulation as to license
and capital
stock are imposed
as conditions on the company's carrying
on the business of interstate commerce, which was manifestly
the principal object of its organization.
These regulations are
clearly a burden and a restriction upon that commerce. Whether
intended as such or not, they operate as such. But taxes or license
fees, in good faith imposed exclusively on express business carried
on wholly within the state, would be open to no such
objection."
To the same general effect are many other cases.
Robbins v.
Shelby County Taxing District, 120 U.
S. 489;
Leloup v. Mobile, 127 U.
S. 640;
Stoutenburgh v. Hennick, 129 U.
S. 141;
Lyng v. Michigan, 135
U. S. 166;
McCall v. California, 136 U.
S. 104;
Norfolk & Western Railroad Co. v.
Pennsylvania, 136 U. S. 114;
Western Union Tel. Co. v. Kansas, 216 U. S.
1. It is true that the statute does not, in terms,
require the corporation of another state engaged in interstate
commerce to take
Page 217 U. S. 111
out what is technically "a license" to transact its business in
Kansas. But it denies all authority to do business in Kansas unless
the corporation makes, delivers, and files a "statement" of the
kind mentioned in § 1283. The effect of such requirement is
practically the same as if a formal license was required as a
condition precedent to the right to do such business. In either
case, it imposes a
condition upon a corporation of another
state seeking to do business in Kansas which, in the case of
interstate business, is a regulation of interstate commerce and
directly burdens such commerce. The state cannot thus burden
interstate commerce. It follows that the particular clause of §
1283 requiring that "statement" is illegal and void.
In this connection, it is to be observed that, by the statute,
the doors of Kansas courts are closed against the Textbook Company
unless it
first obtains from the Secretary of State a
certificate showing that the "statement" mentioned in § 1283 has
been properly made. In other words, although the Textbook Company
may have a valid contract with a citizen of Kansas, one directly
arising out of and connected with its interstate business, the
statute denies its right to invoke the authority of a Kansas court
to enforce its provisions unless it does what we hold it was not,
under the Constitution, bound to do -- namely, make, deliver, and
file with the Secretary of State the statement required by § 1283.
If the state could, under any circumstances, legally forbid its
courts from taking jurisdiction of a suit brought by a corporation
of another state, engaged in interstate business, upon a valid
contract arising out of such business, and made with it by a
citizen of Kansas, it could not impose on the company,
as a
condition of its authority to carry on its interstate business in
Kansas, that it shall make, deliver, and file that statement
with the Secretary of State, and obtain his certificate that it had
been properly made. This Court held in
Chambers v. Baltimore
& Ohio Railroad Co., 207 U. S. 142,
207 U. S. 148,
that a state may, subject to the restrictions of the federal
Constitution, "determine the limits of the jurisdiction of its
courts, and the character of the
Page 217 U. S. 112
controversies which shall be heard in them." But it also said in
the same case:
"The right to sue and defend in the courts is the alternative of
force. In an organized society, it is the right conservative of all
other rights, and lies at the foundation of orderly government. It
is one of the highest and most essential privileges of citizenship,
and must be allowed by each state to the citizens of all other
states to the precise extent that it is allowed to its own
citizens. Equality of treatment in this respect is not left to
depend upon comity between the states, but is granted and protected
by the federal Constitution."
How far a corporation of one state is entitled to claim in
another state, where it is doing business, equality of treatment
with individual citizens in respect of the right to sue and defend
in the courts is a question which the exigencies of this case do
not require to be definitely decided. It is sufficient to say that
the requirement of the statement mentioned in § 1283 of the statute
imposes a direct burden on the plaintiff's right to engage in
interstate business, and therefore is in violation of its
constitutional rights. It is the established doctrine of this Court
that a state may not, in any form or under any guise, directly
burden the prosecution of interstate business. But such a burden is
imposed when the corporation of another state, lawfully engaged in
interstate commerce, is required, as a condition of its right to
prosecute its business in Kansas, to make and file a statement
setting forth certain facts which the state, confessedly, could not
control by legislation. It results that the provision as to the
statement mentioned in § 1283 must fall before the Constitution of
the United States, and with it -- according to the established
rules of statutory construction -- must fall that part of
the
same section which provides that the obtaining of the
certificate of the Secretary of State that such statement has been
properly made shall be a condition precedent to the right of the
plaintiff to maintain an action in the courts of Kansas. Section
1283, looking at the object for which it was enacted, must be
regarded as an entirety. These
Page 217 U. S. 113
parts of the statute are so connected with and dependent upon
each other that the clause relating to actions brought in the
courts of Kansas cannot be separated from the prior clause in the
same section referring to the statement to be filed with
the Secretary of State, and the former left in force after the
latter is stricken down as invalid. As the clause about suits in
the courts of Kansas
expressly refers to the prior clauses
in the same section prescribing the statement to be filed
with the Secretary of State, the clause relating to suits would be
meaningless without reference to the latter. We cannot suppose,
from the words of the statute, that the legislature would have
adopted the regulation about actions in the state courts except for
the purpose of enforcing the prior clause in the same section
relating to the statement to be filed with the Secretary of State.
The several parts of the section are not capable of separation if
effect be given to the legislative intent. It is well settled that,
if a statute is in part unconstitutional, the whole statute must be
deemed invalid if the parts not held to be invalid are so connected
with the general scope of the statute that they cannot be
separately enforced, or, if so enforced, will not effectuate the
manifest intent of the legislature. In
Allen v. Louisiana,
103 U. S. 80,
103 U. S. 84,
this Court referred with approval to what Chief Justice Shaw said
on this point in
Warren v. Mayor &c., 2 Gray, 84.
Referring to the rule obtaining in cases of statutes in part
constitutional and in part unconstitutional, that eminent jurist
said:
"But, if they are so mutually connected with and dependent on
each other, as conditions, considerations, or compensations for
each other, as to warrant a belief that the legislature intended
them as a whole, and that, if all could not be carried into effect,
the legislature would not pass the residue independently, and some
parts are unconstitutional, all the provisions which are thus
dependent, conditional, or connected, must fall with them."
See also Poindexter v. Greenhow, 114 U.
S. 270;
Spraigue v. Thompson, 118 U. S.
90;
Huntington v. Worthen, 120 U. S.
97.
Page 217 U. S. 114
It results that, as the part of § 1283 which relates to the
statement to be filed with the secretary is unconstitutional, and
as the clause in the same section relating to suits in the state
court is so dependent upon and connected with that part as to be
meaningless when standing alone, the section must be held
inoperative in all its parts, and as not being in the way of the
enforcement in any state court of competent jurisdiction of the
plaintiff's right to a judgment against the defendant for the
amount conceded to be due from him to the Textbook Company under
his contract. The judgment must be reversed and the case remanded
for further proceedings not inconsistent with this opinion.
MR. JUSTICE MOODY heard the argument of this case, participated
in its decision in conference, and approves the reversal of the
judgment upon the grounds stated in this opinion.
Reversed.
THE CHIEF JUSTICE and MR. JUSTICE McKENNA dissent.