the State might place no burden upon the solicitation of orders of liquors for such purpose. To this, however, the court replied, that between the right of the individual to import goods from another State or to make a contract for such importation, and the right of a person or company to carry on the business of soliciting such contracts there is a wide difference; and that previous decisions of the court had established that while the power could not be interfered with or restrained by the States, the latter could be. Thus it had been held that a State might regulate and forbid the making within its borders of insurance contracts with its citizens by foreign insurance companies or their agents;25 but that the States might not prohibit a citizen from making a contract of insurance in another State.26

In Adams Express Co. v. Kentucky27 it was held that the agree ment of the local agent of the express company to hold for a few days a C. O. D. interstate shipment of liquor to suit the convenience of the consignee did not destroy the character of the transaction as interstate commerce and render the company liable to prosecution under a state liquor law. Also, it was held that evi

25 Hooper v. California, 155 U. S. 648; 15 Sup. Ct. Rep. 207; 39 L. ed. 297. 26 Allgeyer v. Louisiana, 165 U. S. 578; 17 Sup. Ct. Rep. 427; 41 L. ed. 832; Nutting v. Massachusetts, 183 U. S. 553; 22 Sup. Ct. Rep. 238; 46 L. ed. 324.

"The

After quoting from Nutting v. Massachusetts, the court say: ruling thus made is particularly pertinent to the subject of intoxicating liquors and the powers of the State in respect thereto. As we have seen, the right of the States to prohibit the sale of liquor within their respective jurisdictions in and by virtue of the regulation of commerce embodied in the Wilson Act is applicabie to liquor shipped from one State into another, after delivery, and before the sale in the original package. It follows that the authority of the States, so far as the sale of intoxicating liquors within their borders is concerned, is just as complete as is their right to regulate within their jurisdiction the making of contracts of insurance. It hence must be that the authority of the States to forbid agents of non-resident liquor dealers from coming within their borders to solicit contracts for the purchase of intoxicating liquors which otherwise the citizen of the State 'would not have thought of making' must be as complete and efficacious as is such authority in relation to contracts of insurance, especially in view of the conceptions of public order and social well-being which it may be assumed lie at the foundation of regulations concerning the traffic in liquor."

27 206 U. S. 129; 27 Sup. Ct. Rep. 606; 51 L. ed. 987.

dence that the express company knew that the C. O. D. shipment of liquor had not been ordered by the consignee was immaterial on a criminal prosecution where the indictment averred that the company was engaged in the business of a common carrier, and shipment and delivery were made in the usual course of its business.

§ 321. Proposed Legislation.

Numerous measures have been proposed in Congress the aim of which has been to empower the States to exercise full jurisdiction over interstate shipments of intoxicating liquors, immediately upon their coming within their borders, whether before or after delivery, and whether imported for sale or consumption by the individual consignees. The constitutionality of such a delegation of authority by Congress to the States would seem to be open to serious question, at least so long as the States have not prohibited the use but only the manufacture and sale of intoxicating liquors. Thus, for example, it is argued that the Wilson law but removed an impediment to the exercise of their police powers by the States, that impediment being the incidental right which the importer has to sell the commodities imported; whereas the proposed legislation would delegate to the States a direct authority over interstate shipments of liquors. As Senator Knox declares: "The state power over liquor in the hands of consignees who imported them was unshackled by the Wilson Act, which was a regulation of commerce, removing the impediment to the complete exercise of state power: the impediment being the incidental right to sell. The effect of the removal of this impediment was not to permit the State to invade the federal domain by acts which in their nature and essence are acts regulating commerce, such as by seizing goods in transit, but to enable the States to freely exercise their proper powers to regulate their own internal affairs, after the interstate contract had been completed by a delivery of the goods to the consignee and after title had passed. To remove a barrier which prevented States from acting freely in their own domain is quite another matter from removing a barrier that will let them in on the federal domain." 28

28 Sen. Rep. 499, 60th Cong., 1st Sess.

Upon the other hand it has been argued that, conceding the constitutionality of the Wilson law, the validity of the proposed legislation is established; that under the Wilson law Congress relinquished a portion of its control over interstate commerce, and, under the proposed legislation, would relinquish an additional portion.

§ 322. Oleomargarine Cases.

In Powell v. Pennsylvania29 the court held that a state law which, as a police regulation, laid down certain rules for the manufacture and sale of oleomargarine, was not, as alleged, a violation of the due process of law provision of the Fourteenth Amendment.

In Plumley v. Massachusetts30 the court again upheld a drastic state law regulating the manufacture and sale of articles simulating butter, as being in violation neither of the Fourteenth Amendment, nor of the Commerce Clause, even when applied to such articles brought from other States. The validity of the law was sustained as a legitimate police provision against fraud, the court as to this saying: "It will be observed that the statute of Massachusetts does not prohibit the manufacture or sale of all oleomargarine, but only such as is colored in imitation of yellow butter produced from pure unadulterated milk or cream of such milk. The statute seeks to suppress false pretences and to promote fair dealing in the sale of an article of food. Can it be that the Constitution of the United States secures to any one the privilege of manufacturing and selling an article of food in such manner as to induce the mass of people to believe that they are buying something which, in fact, is wholly different from that which is offered for sale? Does the freedom of commerce among the States demand recognition of the right to practise a deception upon the public in the sale of any articles, even those that may have become the subject of trade in different parts of the country?" 31

29 127 U. S. 678; 8 Sup. Ct. Rep. 992; 32 L. ed. 253. 30 155 U. S. 461; 15 Sup. Ct. Rep. 154; 39 L. ed. 223.

The case is distinguished from the liquor cases on the ground that in those cases no element of fraud was involved. But as Prentice and Egan

In Collins v. New Hampshire32 it was held that a State cannot render an article of interstate commerce unsalable, as for example compelling artificial butter to be colored pink, any more than it can prevent its importation.

In Schollenberger v. Pennsylvania,33 however, the court when asked to enforce a state oleomargarine law with reference to the importation and sale in the original package of oleomargarine manufactured in another State, held the law void so far as its application to interstate and foreign commerce was concerned. Oleomargarine, the court held, had been recognized by the Federal Government as a proper subject of interstate commerce, and it was, therefore, beyond the competence of the States whether in the exercise of their police or other powers, to place restrictions upon its importation or exportation. The court, after a review of earlier cases, say: "The general rule to be deduced from the decisions of this court is that a lawful article of commerce cannot be wholly excluded from importation into a State from another State where it was manufactured or grown. A State has power to regulate the introduction of any article, including a food product, so as to insure purity of the article imported, but such police power does not include the total exclusion of an article of food."

§ 323. The States and Foreign Corporations Doing an Interstate Commerce Business.

The right to engage in interstate commerce it has often been declared is a federal right, and is, therefore, independent of state control. In Vance v. Vandercook, as has already been referred to, the right of the individual to import was declared to be "derived from the Constitution of the United States, and does not rest on the grant of the state law."

properly remark, the protection of health and morals is as much within the scope of the police powers as is protection against fraud, and "the consequences of buying, even through error, a palatable and nutritious substitute for butter, instead of the genuine article, are not worse than the consequences of disease and crime which result from the general use of intoxicating liquors.” The Commerce Clause, p. 51.

32 171 U. S. 30; 18 Sup. Ct. Rep. 768; 43 L. ed. 60.

33 171 U. S. 1; 18 Sup. Ct. Rep. 757; 43 L. ed. 49.

34 170 U. S. 438; 18 Sup. Ct. Rep. 674; 42 L. ed. 1100.

Nor, as we have also learned, can a State render illegal or in any way restrain the making of contracts by its residents with reference to interstate commerce."

35

So, likewise, it is established that a State, though it may preyent, or attach such conditions as it sees fit to the entrance of a foreign corporation within its borders for the purpose of doing business generally within the State, may not prevent or restrain that corporation, any more than it may prevent or restrain an individual, from engaging in interstate commerce within its borders.

That a corporation is not considered a "citizen” within the meaning of the provision of the Constitution which declares that the citizens of each State shall be entitled to all the privileges and immunities of citizens of the several States, has not been questioned since Paul v. Virginia. The privileges and immunities referred to in that clause are those which are common to the citizens under their Constitution and laws by virtue of their being citizens, and are not those special privileges which may be granted them and which are valid only within the State creating them. "A grant of corporate existence," the court say, "is a grant of special privileges to the corporators, enabling them to act for certain designated purposes as a single individual, and exempting them (unless otherwise specially provided) from individual liability. The corporation being the mere creation of local law, can have no legal existence beyond the limits of the sovereignty where created."

But though not a citizen within the interstate comity clause, the corporation is a person within the "due process clauses" of the Constitution and possesses all the other federal privileges and immunities, which can attach to an artificial person, and among these is the right to engage in interstate commerce. "If," say the court in Crutcher v. Kentucky, "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

37

35 Delamater v. South Dakota, 205 U. S. 93; 27 Sup. Ct. Rep. 447; 51 L. ed. 724.

36 8 Wall. 168; 19 L. ed. 357.

37 141 U. S. 47; 11 Sup. Ct. Rep. 851; 35 L. ed. 649.