Attorney General v. Electric Storage Battery Co.

• Citation: 74 N.E. 467,188 Mass. 239
• Parties: ATTORNEY GENERAL ex rel. TREFRY, Com'r ATTORNEY GENERAL ex rel. BRADFORD, Treasurer v. ELECTRIC STORAGE BATTERY CO. ATTORNEY GENERAL ex rel. BRADFORD, Treasurer v. SAME.
• Decision Date: 19 May 1905
• Court: United States State Supreme Judicial Court of Massachusetts

188 Mass. 239

74 N.E. 467

ATTORNEY GENERAL ex rel. TREFRY, Com'r ATTORNEY GENERAL ex rel. BRADFORD, Treasurer v. ELECTRIC STORAGE BATTERY CO. ATTORNEY GENERAL ex rel. BRADFORD, Treasurer v. SAME.

Supreme Judicial Court of Massachusetts, Suffolk.

May 19, 1905

COUNSEL

Fredk. H. Nash, for the Attorney General, Geo. R. Nutter and J Butler Studley, for defendant.

OPINION

KNOWLTON, C.J.

These are informations in equity brought by the Attorney General against a foreign corporation, the first at the relation of the Commissioner of Corporations, under St. 1903, p. 441, c 437, § 50, and the second at the relation of the Treasurer and Receiver General, under section 78 (page 451) of the same chapter, to enforce the provisions of sections 66, 67, (page 447), and 75 (page 450). These require every foreign corporation of the classes described in section 58 (page 443), annually to file in the office of the Secretary of the Commonwealth a certificate of certain facts, and to pay an excise tax assessed upon its capital stock by the Tax Commissioner. The classes of foreign corporations described in section 58 include every one 'which has a usual place of business in this commonwealth, or which is engaged in this commonwealth permanently or temporarily, and with or without a usual place of business therein, in the construction, erection, alteration or repair of a building, bridge, railroad, railway, or construction of any kind.' The defendant has a usual place of business in this commonwealth, and the tax to be assessed under section 75 is for the commodity or privilege of having such a place of business here. Const. Mass. c. 1, § 1, art. 4; Attorney General v. Bay State Mining Company, 99 Mass. 148, 96 Am. Dec. 717; Minot v. Winthrop, 162 Mass. 113, 38 N.E. 512, 26 L. R. A. 259; Provident Institution v. Massachusetts, 6 Wall 611, 18 L.Ed. 907; Hamilton Company v. Massachusetts, 6 Wall. 632, 18 L.Ed. 904.

The general right of a state to prescribe the terms and conditions on which a foreign corporation may do business therein is unquestioned. Attorney General v. Bay State Mining Company, ubi supra; Waters-Pierce Oil Company v. Texas, 177 U.S. 28, 20 S.Ct. 518, 44 L.Ed. 657; Hooper v. California, 155 U.S. 648, 15 S.Ct. 207, 39 L.Ed. 297. A corporation is not a citizen of a state, within the meaning of article 4, § 2, of the Constitution of the United States, which secures to the citizens of each state the privileges and immunities of the citizens of the several states. Paul v. Virginia, 8 Wall. 168, 19 L.Ed. 357; Pembina Mining Company v. Pennsylvania, 125 U.S. 181, 8 S.Ct. 737, 31 L.Ed. 650. An important limitation of this right of a state to impose conditions forbids the restriction or regulation of interstate commerce in which such a corporation is engaged. Com. v. Petranich, 183 Mass. 217-219, 66 N.E. 807; Picard v. Pullman Car Company, 117 U.S. 34, 6 S.Ct. 635, 29 L.Ed. 785; Cooper Manufacturing Company v. Ferguson, 113 U.S. 727, 5 S.Ct. 739, 28 L.Ed. 1137; Leloup v. Mobile, 127 U.S. 640, 8 S.Ct. 1380, 32 L.Ed. 311; Norfolk & Western Railroad Company v. Pennsylvania, 136 U.S. 114, 10 S.Ct. 958, 34 L.Ed. 394; Crutcher v. Kentucky, 141 U.S. 47, 11 S.Ct. 851, 35 L.Ed. 649; Postal Telegraph Cable Company v. Charleston, 153 U.S. 692, 14 S.Ct. 1094, 38 L.Ed. 871.

If the statute before us applied to the maintenance of a place of business solely for the purpose of engaging in interstate commerce, it would be unconstitutional. Gloucester Ferry Company v. Pennsylvania, 114 U.S. 196, 5 S.Ct. 826, 29 L.Ed. 158; Norfolk & Western Railroad Company v. Pennsylvania, 136 U.S. 114, 10 S.Ct. 958, 34 L.Ed. 394. Its language is broad enough to include every corporation which has a usual place of business in the commonwealth, even though it is a common carrier engaged in interstate commerce, and has its place of business here as a necessary means of carrying on this commerce. But it is a rule of law that a statute which would be unconstitutional as applied to a certain class of cases, and is constitutional as applied to another class, may be held to have been intended to apply only to the latter class, if this seems in harmony with the general purpose of the Legislature. As was said by Mr. Justice Devens in Com. v. Gagne, 153 Mass. 205-207, 26 N.E. 449, 10 L. R. A. 442: 'Indeed, where two governments like those of the United States and the commonwealth exercise their authority within the same territory and over the same citizens, the legislation of that which, as to certain subjects, is subordinate, should be construed with reference to the powers and authorities of the superior government, and not be deemed as invading them, unless such a construction is absolutely demanded.' White v. Gove, 183 Mass. 333-338, 67 N.E. 359; Attorney General v. Netherlands Fire Insurance Company, 181 Mass. 522, 63 N.E. 950; Supervisors v. Stanley, 105 U.S. 305, 26 L.Ed. 1044, and cases cited; Kehrer v. Stewart, 197 U.S. 60, 25 S.Ct. 403, 49 L.Ed. 663; s. c., 117 Ga. 969, 44 S.E. 854; Osborne v. Florida, 164 U.S. 650, 17 S.Ct. 214, 41 L.Ed. 586; People v. Butler Street Foundry & Iron Company, 201 Ill. 236, 66 N.E. 349. In accordance with the doctrine referred to in the cases above cited, we are of opinion that the Legislature cannot have intended to include in this statute corporations whose usual place of business is established and maintained solely for use in interstate commerce. With this construction of the law, it is plainly constitutional.

It remains to consider whether the defendant has a place of business in Massachusetts which is used for purposes other than interstate commerce. The...