# Crutcher v. Kentucky/Opinion of the Court

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* Opinion of the Court
United States Supreme Court
141 U.S. 47
Crutcher v. Kentucky
We regret that we are unable to concur with the learned court of appeals of Kentucky in its views on this subject. The law of Kentucky which is brought in question by the case requires from the agent of every express company not incorporated by the laws of Kentucky a license from the auditor of public accounts before he can carry on any business for said company in the state. This of course embraces interstate business as well as business confined wholly within the state. It is a prohibition against the carrying on of such business without a compliance with the state law. And not only is license required to be obtained by the agent, but a statement must be made and filed in the auditor's office showing that the company is possessed of an actual capital of $150,000 either in cash or in safe investments, exclusive of stock notes. 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 which 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 presumd t hat 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, cannot have the effect of depriving them of such right, unless congress should see fit to interpose some contrary regulation on the subject.
It has frequently been laid down by this court that the power of congress over interstate commerce is as absolute as it is over foreign commerce. Would any one 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. Steam-Ship Co. v. Tinker, 94 U.S. 238. The prerogative, the responsibility, and the duty of providing for the security of the citizens and the people of the United States in relation to foreign corporate bodies or foreign individuals with whom they may have relations of foreign commerce, belong to the government of the United States, and not to the governments of the several states; and confidence in that regard may be reposed in the national legislature without any anxiety or apprehension arising from the fact that the subject-matter is not within the province or jurisdiction of the state legislatures. And the same thing is exactly as true with regard to interstate commerce as it is with regard to foreign commerce. No difference is perceivable between the two. Telegraph Co. v. Texas, 105 U.S. 460; Ferry Co. v. Pennsylvania, 114 U.S. 196, 205, 211, 5 Sup. Ct. Rep. 826; Steam-Ship Co. v. Pennsylvania, 122 U.S. 326, 342, 7 Sup. Ct. Rep. 1118; McCall v. California, 136 U.S. 104, 110, 10 Sup. Ct. Rep. 881; Railroad Co. v. Pennsylvania, 136 U.S. 114, 118, 10 Sup. Ct. Rep. 958. As was said by Mr. Justice LAMAR, in the case last cited: 'It is well settled by numerous decisions of this court that a state cannot, under the guise of a license tax, excludefrom its jurisdiction a foreign corporation engaged in interstate commerce, or impose any burdens upon such commerce within its limits.' We have repeatedly decided that a state law is unconstitutional and void which requires a party to take out a license for carrying on interstate commerce, no matter how specious the pretext may be for imposing it. Pickard v. Car Co., 117 U.S. 34, 6 Sup. Ct. Rep. 635; Robbins v. Taxing Dist., 120 U.S. 489, 7 Sup. Ct. Rep. 592; Leloup v. Port of Mobile, 127 U.S. 640, 8 Sup. Ct. Rep. 1380; Asher v. Texas, 128 U.S. 129, 9 Sup. Ct. Rep. 1; Stoutenburgh v. Hennick, 129 U.S. 141, 9 Sup. Ct. Rep. 256; McCall v. California, 136 U.S. 104, 10 Sup. Ct. Rep. 881; Railroad Co. v. Pennsylvania, 136 U.S. 114, 10 Sup. Ct. Rep. 958. As a summation of the whole matter it was aptly said by the present chief justice in Lyng v. Michigan, 135 U.S. 161, 166, 10 Sup. Ct. Rep. 725: 'We have repeatedly held that no state has the right to lay a tax on interstate commerce in any form, whether by way of duties laid on the transportation of the subjects of that commerce, or on the receipts derived fromtha t transportation, or on the occupation or business of carrying it on, for the reason that taxation is a burden on that commerce, and amounts to a regulation of it, which belongs solely to congress.'
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 regulations 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. The case is entirely different from that of foreign corporations seeking to do a business which does not belong to the regulating power of congress. The insurance business, for example, cannot be carried on in a state by a foreign corporation without complying with all the conditions imposed by the legislation of that state. So with regard to manufacturing corporations, and all other corporations whose business is of a local and domestic nature, which would include express companies whose business is confined to points and places wholly within the state. The cases to this effect are numerous. Bank v. Earle, 13 Pet. 519; Paul v. Virginia, 8 Wall. 168; Insurance Co. v. Massachusetts, 10 Wall. 566; Manufacturing Co. v. Ferguson, 113 U.S. 727, 5 Sup. Ct. Rep. 739; Fire Ass'n v. People, 119 U.S. 110, 7 Sup. Ct. Rep. 108. But the main argument in support of the decision of the court of appeals is that the act in question is essentially a regulation made in the fair exercise of the police power of the state. But it does not follow that everything which the legislature of a state may deem essential for the good order of society and the well-being of its citizens can be set up against the exclusive power of congress to regulate the operations of foreign and interstate commerce. We have lately expressly decided in the case of Leisy v. Hardin, 135 U.S. 100, 10 Sup. Ct. Rep. 681, that a state law prohibiting the sale of intoxicating liquors is void when it comes in conflict with the express or implied regulation of interstate commerce by congress, declaring that the traffic in such liquors as articles of merchandise between the states shall be free. There are, undoubtedly, many things which in their nature are so deleterious or injurious to the lives and health of the people as to lose all benefit of protection as articles or things of commerce, or to be able to claim it only in a modified way. Such things are properly subject to the police power of the state. Chief Justice MARSHALL, in Brown v. Maryland, 12 Wheat. 419, 443, instances gunpowder as clearly subject to the exercise of the police power in regard to its removal and the place of its storage; and he adds: 'The removal or destruction of infectious or unsound articles is, undoubtedly, an exercise of that power, and forms an express exception to the prohibition we are considering. Indeed, the laws of the United States expressly sanction the health laws of a state.' Chief Justice TANEY, in the License Cases, 5 How. 504, 576, took the same distinction when he said: 'It has, indeed, been suggested that, if a state deems the traffic in ardent spirits to be injurious to its citizens, and calculated to introduce immorality, vice, and pauperism in to the state, it may constitutionally refuse to permit its importation, notwithstanding the laws of congress; and that a state may o t his upon the same principles that it may resist and prevent the introduction of disease, pestilence, and pauperism from abroad. But it must be remembered that disease, pestilence, and pauperism are not subjects of commerce, although sometimes among its attendant evils. They are not things to be regulated and trafficked in, but to be prevented, as far as human foresight or human means can guard against them. But spirits and distilled liquors are universally admitted to be subjects of ownership and property, and are therefore subjects of exchange, barter, and traffic, like any other commodity in which a right of property exists.' But while it is only such things as are clearly injurious to the lives and health of the people that are placed beyond the protection of the commercial power of congress, yet when that power, or some other exclusive power of the federal government, is not in question, the police power of the state extends to almost everything within its borders,-to the suppression of nuisances; to the prohibition of manufactures deemed injurious to the public health; to the prohibition of intoxicating drinks, their manufacture or sale; to the prohibition of lotteries, gambling, horse-racing, or any thing else that the legislature may deem opposed to the public welfare. Bartemeyer v. Iowa, 18 Wall. 129; Beer Co. v. Massachusetts, 97 U.S. 25; Fertilizing Co. v. Hyde Park, Id. 659; Stone v. Mississippi, 101 U.S. 814; Foster v. Kansas, 112 U.S. 201, 5 Sup. Ct. Rep. 8, 97; Mugler v. Kansas, 123 U.S. 623, 8 Sup. Ct. Rep. 273; Powell v. Pennsylvania, 127 U.S. 678, 8 Sup. Ct. Rep. 992, 1257; Kidd v. Pearson, 128 U.S. 1, 9 Sup. Ct. Rep. 6; Kimmish v. Ball, 129 U.S. 217, 9 Supp. Ct. Rep. 277. It is also within the undoubted province of the state legislature to make regulations with regard to the speed of railroad trains in the neighborhood of cities and towns; with regard to the precautions to be taken in the approach of such trains to bridges, tunnels, deep cuts, and sharp curves; and, generally, with regard to all operations in which the lives and health of people may be endangered,-even though such regulations affect to some extent the operations of interstate commerce. Such regulations are eminently local in their character, and, in the absence of congressional regulations over the same subject, are free from all constitutional objections, and unquestionably valid.
In view of the foregoing considerations, and of the well-considered distinctions that have been drawn between those things that are and those things that are not within the scope of commercial regulation and protection, it is not difficult to arrive at a satisfactory conclusion on the question now presented to us. The character of police regulation, claimed for the requirements of the statute in question, is certainly not such as to give them a controlling force over the regulations of interstate commerce which may have been expressly or impliedly adopted by congress, or such as to exempt them from nullity when repugnant to the exclusive power given to congress in relation to that commerce. This is abundantly shown by the decisions to which we have already referred, which are clear to the effect that neither licenses nor indirect taxation of any kind, nor any system of state regulation, can be imposed upon interstate, any more than upon foreign, commerce; and that all acts of legislation producing any such result are, to that extent, unconstitutional and void. And as, in our judgment, the law of Kentucky now under consideration, as applied to the case of the plaintiff in error, is open to this objection, it necessarily follows that the judgment of the court of appeals must be reversed. The judgment is reversed accordingly, and the cause remanded for further proceedings not inconsistent with this opinion.
FULLER, C. J., and GRAY, J., dissent.
BROWN, J., not having been a member of the court when the case was argued, took no part in the decision.

## Notes

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