HOLT
J.
The
legislature on March 2, 1860, passed the following act
"An act to regulate agencies of foreign express
companies.
"Section
1. Be it enacted by the general assembly of the commonwealth
of Kentucky that it shall not be lawful, after the first day
of May, 1860, for any agent of any express company, not
incorporated by the laws of this commonwealth, to set up,
establish, or carry on the business of transportation in this
state, without first obtaining a license from the auditor of
public accounts to carry on such business.
"Sec.
2. Before the auditor shall issue such license to any agent
of any company incorporated by any state of the United
States, there shall be filed in his office a copy of the
charter of such company, and a statement made, under oath of
its president or secretary, showing its assets and
liabilities, and distinctly showing the amount of its capital
stock, and how the same has been paid, and of what the assets
of the company consist, the amount of losses due and unpaid
by said company, if any, and all other claims against said
company, or other indebtedness, due or not due; and such
statement shall show that the company is possessed of an
actual capital of at least $150,000, either in cash or in
safe investment, exclusive of stock notes. Upon the filing of
the statement above provided, and furnishing the auditor with
satisfactory evidence of such capital, it shall be his duty
to issue license to such agent or agents as the company may
direct to carry on the business of expressing or
transportation in this state.
"Sec.
3. Before the auditor shall issue license to any agent of any
express or transportation company incorporated by any foreign
government, or any association or partnership acting under
the laws of any foreign government, there shall be filed in
his office a statement setting forth the act of
incorporation, or charter, or the articles of association, or
by-laws, under which they act, and setting forth the matters
required by the preceding section of this act to be
specified; and satisfactory evidence shall be furnished to
the auditor that such company has on deposit in the United
States, or has invested in the stock of some one or more of
the United States, or in some safe dividend paying stocks in
the United States, the sum of $150,000, which statement shall
be verified by the oath of the president of such company, its
general agent in the United States, or the agent applying for
such license; and upon due filing of such statement, and
furnishing the auditor with satisfactory evidence of such
deposit or investment, it shall be his duty to issue such
license to the agent or agents applying for the same.
"Sec.
4. The statements required by the foregoing sections shall be
renewed in each year thereafter, either in the months of
January or July; and the auditor, on being satisfied that the
capital or deposit, consisting of cash securities or
investments as provided in this act, remain secure to the
amount of $150,000, shall renew such license.
"Sec.
5. Every agent obtaining such license, or renewal thereof, as
required by this act, shall, before transacting any business
of transportation or expressing in this state, file in the
office of the clerk of the county court in which he or they
may desire to do business for said company, a copy of the
statement required to be filed with the auditor, and a copy
of the license, which shall be carefully preserved by the
clerk for public inspection; and, in case of a renewal,
shall, in like manner, file in the office of a clerk of the
county court a copy of such renewed statement and license,
within thirty days after it shall be filed with the auditor.
"Sec.
6. The statements required by the foregoing sections shall be
made up to a period within six months preceding the filing of
the same with the auditor.
"Sec.
7. If, at any time after the filing of the statements by this
act required, it shall be made to appear to the auditor that
the available capital of any such company has been reduced,
by misfortune or otherwise, below the sum of $150,000, it
shall be his duty to revoke the license or licenses granted
to any agent or agents of such company.
"Sec.
8. Any person who shall set up, establish, carry on, or
transact any business for any transportation or express
company not incorporated by the law of this state, without
having obtained license, as by this act required, or who
shall in any way violate the provisions of this act, shall be
fined for every such offense not less than one hundred nor
more than five hundred dollars, at the discretion of a jury,
to be recovered as like fines in other cases: provided, that
it shall and may be lawful for any person who has a right of
action that has accrued in this state against such foreign
transportation or express company, to sue any such company in
any county in this state where its agent may be found:
provided, further, that nothing contained in this act shall
be construed to release said company from liability as common
carriers.
"Sec.
9. For any license issued by the auditor under this act, and
for each renewal thereof, he shall be allowed the sum of
$2.50, to be paid by the agent or company taking out such
license.
"Sec.
10. This act shall not apply to any express or transportation
company wholly composed of residents of this state, or to any
corporation chartered by this state, except to impose the
liabilities of a common carrier; nor shall it apply to any
person engaged in the ordinary business of transportation as
common carrier or otherwise. This act to be in force from its
passage."
Myer,
Supp. 228.
The
appellant, James Woodward, was indicted and convicted in the
Jefferson circuit court, under the eighth section, for
having, during 1886, acted as the agent at Louisville, Ky. of
the Adams Express Company, a corporation not created by the
laws of this state, without having any license to do so from
the auditor.
It is
urged, first, that the law is unconstitutional, and
therefore void, because it discriminates against
non-residents. The constitution of the United States declares
that "the citizens of each state shall be entitled to
all the immunities of citizens in the several states."
But a corporation is but a creature of the local law. It has
no absolute right of recognition in any state save that of
its creation. It has no extraterritorial operation, save by
comity. The validity of its action, the exercise of any right
whatever by it, indeed, even the recognition of its
existence, in any other state, depend altogether upon its
will and consent. One state cannot force its artificial
creature into another. If it could, it would thereby
transport its laws for the government of another equal state.
If the corporation be accorded any rights appertaining to
citizenship in another state, it is by its sanction, either
express or implied. It may forbid its presence altogether;
and it therefore follows, of course, that it may impose such
restrictions as it chooses, provided they are not open to
constitutional objection. The "immunities" secured
by the organic
law to the citizen of one state in the other states are such
privileges as are common to the citizens of the latter states
under their laws, and do not embrace special privileges
created by his local law and enjoyed by him at home. Nor does
the term "citizen," as used in the constitution,
include corporations. This is, therefore, not a case where a
state has imposed a burden upon the citizens of another state
not borne by its own. This rule has been declared not only by
this court, but also by the supreme court of the United
States. Insurance Co. v. Com., 5 Bush, 68;
Paul v. Virginia, 8 Wall. 168;
Doyle v. Insurance Co., 94 U.S.
535.
It is
next said that the act above cited has been repealed; but,
even if this be not so, that then its proper construction
only requires the company, and not each of its agents, to
obtain a license; and that the legislature by subsequent
legislation has placed this construction upon it. In support
of these positions we are referred to the following sections
of the act of February 20, 1864, entitled, "An act to
tax railroads, turnpike roads, and other corporations in aid
of the sinking fund:"
"Sec
6. That it shall be the duty of the treasurer, secretary,
agent, or superintendent of any express company doing
business in this state to report to the auditor of public
accounts, on or before the 15th day of July, 1864, and on
each succeeding 15th day of July thereafter, a full and
comprehensive statement of the business of the company,
within the state, for the twelve months next preceding; and
shall, on or before the 10th day of October following, pay
into the treasury a tax of six per cent. upon the net profits
of the business done by it within this state.
"Sec
7. That if any of the officers mentioned in sections fifth
and sixth of this act shall fail or refuse to report to the
auditor of public accounts, as therein required, that such
officer shall be liable to a fine of one thousand dollars for
each month he may so fail to report, which fine or fines
shall be recoverable upon motion in the Franklin circuit
court; and any...
