in suit invalid, it is easy to say so; but, in the absence of such a provision, it is a wide stretch of judicial construction for the court to hold that such a result was intended. The purpose of the statute is not to invalidate contracts, but to require foreign corporations to appoint an attorney in this state upon whom service of process may be made. This purpose seems to be adequately served by imposing a penalty upon the agent who ventures to do business for the company without complying with the law. While we do not question the right of the state to impose such conditions and penalties upon foreign companies doing business here as it may deem proper, subject to the provisions of the federal constitution as to the regulation of commerce among the states, yet, in view of the vast amount of business now done by such corporations, we think it is a conservative position to hold that the legislature did not intend to exempt our citizens from paying just debts, upon grounds of non-compliance with our statutes, which may have been fully known to the debtors, when the general assembly has not clearly expressed that intention, and the inference of it is not necessary to the object of the statute.

We are referred to Electric News Co. v. Perry, 75 Fed. Rep. 898, in which it is claimed that our statute was construed to preclude a foreign corporation, which had not complied with it, from maintaining a suit. That case, however, was a bill in equity for an injunction to restrain police officers of Pawtucket, who had seized the property of the complainant for a violation of our statute against pool selling, from interfering with their business. Judge Colt, in the opinion, very properly said that a foreign corporation, which has not complied with statutory provisions, "can not invoke the aid of this court to prohibit the defendants from interfering with a business which it has no legal right to carry on." That is a very different thing from holding that a contract is void, which, in its nature, is not contrary to public policy.

Our decision is that the court did not err in refusing the instruction asked for, and that the petition for a new trial must be dismissed.

See, 1899, Alliance Trust Co. v. Wilson (Kan. App.), 59 Pac. Rep. 177; 1899, Morse v. Holland Trust Co., 84 Ill. App. 84, 56 N. E. Rep. 369; 1899, National Cash Register v. Wilson, 9 N. D. 112, 81 N. W. Rep. 285.

Sec. 319. But statutes may exclude from suing, except as to interstate or foreign commerce.

TABER v. INTERSTATE BUILDING AND LOAN ASSOCIATION.1

1897. IN THE SUPREME COURT OF TEXAS. 91 Texas Rep. 92-95, 7 Am. & Eng. Corp. Cas. (N. S.) 168.

[Action brought by the loan association, a Georgia corporation, to foreclose a mortgage upon a lot in Austin, Texas, given by Kate 1 Statement abridged. Arguments omitted.

Taber to secure a loan from the company to her. The petition alleged that it had a branch office in Texas, and had a permit, under the Texas law, to do business in the state. This was met by a general denial; the question was raised as to whether, under these circumstances, the corporation must prove it had such a permit. Judgment was rendered for the corporation, but this question was certified for answer by the supreme court.]

BROWN, Associate Justice. * To the question propounded we answer that it was necessary for the corporation (plaintiff below) to prove that it had a permit to do business in Texas at the time that the contract sued upon was made in order that the court might enter judgment in its favor. Article 745, Rev. Civ. St. 1895, provides, in substance, that every corporation for pecuniary profit organized or created under the laws of another state which desires to transact business in this state, or to solicit business in this state, or which desires to establish a general or special office in this state, shall be required to file with the secretary of state a duly-certified copy of its articles of incorporation. Article 746, Rev. Civ. St. 1895, reads as follows: "No such corporation can maintain any suit or action, either legal or equitable, in any of the courts of this state upon any demand, whether arising out of contract or tort, unless at the time such contract was made or tort committed the corporation had filed its articles of incorporation under the provisions of this chapter in the office of the secretary of state for the purpose of procuring its permit." Every state has the right to prescribe the terms upon which any corporation created in another state or foreign country may do business within its limits, and may exclude such corporations entirely, with the exception of corporations engaged in interstate commerce, or such as are employed by the United States in the transaction of its business. Under this rule of law, about which there is no controversy, this state had the right to adopt such measures as it thought fit to enforce the provisions of its law, which required foreign corporations to deposit the articles of their incorporation with the secretary of state; and, the legislature having seen fit to prescribe as a condition to the maintenance of suits in its courts that such compliance should precede the transaction of business in the state, it follows that the filing of its articles of incorporation with the secretary of state is a condition precedent to the maintenance of suit upon any contract or right of action accruing to such foreign corporation; and, it being a condition precedent, the fact must be both alleged and proved to entitle the corporation to judgment in such case. Cumberland Land Co. v. Canter Lumber Co. (Tenn. Ch. App.), 35 S. W. Rep. 886; Mullens v. Mortgage Co., 88 Ala. 280, 7 So. Rep. 201; Thorne v. Insurance Co., So Pa. St. 15; Paul v. Virginia, 8 Wall. 168; Holloway v. Railway Co., 23 Texas 465.

Note. See, 1899, Texas Pac. Ry. Co. v. Davis, 55 S. W. Rep. 562; 1900, Thompson Company v. Whitehed, 185 Ill. 454, 76 Am. St. Rep. 51; 1901, Helman Brewing Co. v. Remeise, Minn. 88 N. W. 441; 1902, AngloAmerican Provision Co. v. Davis Co., 169 N. Y. 506, 88 Am. St. R. 608, 62 N. E. 587.

Sec. 320. But such statutes can not exclude from suing in the United States courts.

MR. JUSTICE HUNT IN INSURANCE COMPANY v. MORSE.1

1874. IN THE SUPREME COURT OF THE UNITED STATES. 87 U. S. (20 Wall.) 445, on 454-5-6.

[The Wisconsin statutes of 1870 provided that it shall not be lawful for any fire insurance company, incorporated in any other state, directly or indirectly to take risks or transact any business in this state, without first appointing an attorney upon whom process may be served, and containing an agreement that such company will not remove the suit for trial into the United States courts. The Home Insurance Company, a New York corporation, began business in Wisconsin, and appointed such an agent, the power of attorney containing a provision not to remove suits to the United States courts. It insured Morse, and a loss occurred, for which he sued in the state court, and the company petitioned for removal. This was denied, error assigned and taken to the supreme court of Wisconsin; this court affirmed the decision, and the company brought the case here. After quoting the provision of the constitution of the United States as to the jurisdiction of the United States courts, and saying that jurisdiction depends on the laws of the United States, that the states can not limit it, and that for purposes of such jurisdiction corporations are citizens of the state creating them, proceeds:]

The Home Insurance Company is a citizen of New York, within this provision of the constitution. As such citizen of another state, it sought to exercise this right to remove to a federal tribunal a suit commenced against itself in the state court of Wisconsin, where the amount involved exceeded the sum of $500. This right was denied to it by the state court on the ground that it had made the agreement referred to, and that the statute of the state authorized and required the making of the agreement.

We are not able to distinguish this agreement and this requisition, in principle, from a similar one made in the case of an individual citizen of New York. A corporation has the same right to the protection of the laws as a natural citizen, and the same right to appeal to all the courts of the country. The rights of an individual are not superior in this respect to that of a corporation.

The state of Wisconsin can regulate its own corporations and the affairs of its own citizens, in subordination, however, to the constitution of the United States. The requirement of an agreement like this from their own corporations would be brutum fulmen, because they possess no such right under the constitution of the United States. A foreign citizen, whether natural or corporate, in this respect posMuch of opinion containing citations from cases as to the general power of a state to exclude foreign corporations is omitted.

sesses a right not pertaining to one of her own citizens. There must necessarily be a difference between the status of the two in this respect.

We do not consider the question whether the state of Wisconsin can entirely exclude such corporations from its limits, nor what reasonable terms they may impose as a condition of their transacting business within the state. These questions have been before the court in other cases, but they do not arise here.

* *

(Citing and quoting Paul v. Virginia, 8 Wall. 168; Bank of Augusta v. Earle, 13 Pet. 519; Lafayette Ins. Co. v. French, 18 How. 407; Ducat v. City of Chicago, 10 Wall. 410; Bank of Columbia v. Okely, 4 Wheat. 235.)

On this branch of the case the conclusion is this:

1. The constitution of the United States secures to citizens of another state than that in which suit is brought an absolute right to remove their cases into the federal court, upon compliance with the terms of the act of 1789.

2. The statute of Wisconsin is an obstruction to this right, is repugnant to the constitution of the United States and the laws in pursuance thereof, and is illegal and void.

3. The agreement of the insurance company derives no support from an unconstitutional statute and is void, as it would be had no such statute been passed.

We are of opinion, for the reasons given, that the Winnebago County Court erred in proceeding in the case after the filing the petition and the giving the security required by the act of 1789, and that all subsequent proceedings in the state court are illegal and should be vacated. The judgment in that court, and the judgment in the supreme court of Wisconsin, should be reversed, and the prayer of the petition for removal should be granted.

Mr. CHIEF JUSTICE WAITE and Mr. JUSTICE DAVIS dissenting.

Note. See, 1857, Shelby v. Hoffman, 7 Ohio St. 450; 1872, Morse v. Home Ins. Co., 30 Wis. 496, 11 Am. Rep. 580; 1875, Hartford Fire Ins. Co. v. Doyle, 6 Biss. 461; 1876, State, ex rel. Drake, v. Doyle, 40 Wis. 175, 22 Am. Rep. 692; 1876, Doyle v. Insurance Co., 94 U. S. 535, infra: 1887, Barron v. Burnside, 121 U. S. 186; 1889, Rece v. N. N. & M. V. Co., 32 W. Va. 164, 3 L. R. A. 572; 1890, Texas v. Worsham, 76 Texas 556; 1892, Southern Pac. Ry. Co. v. Denton, 146 U. S. 202; 1894, Martin v. Balt. & Ohio R. Co., 151 U. S. 673, 684; 1895, Commw. v. East Tenn. C. Co., 97 Ky. 238.

Sec. 321. Federal corporations can sue in the federal courts. SUPREME LODGE OF KNIGHTS OF PYTHIAS OF THE WORLD v. HILL.1

1896. IN THE UNITED STATES CIRCUIT COURT OF APPEALS. (W. Va.) 76 Fed. Rep. 468–472.

[Action on the case in assumpsit, brought in courts of West Virginia by Ellen Hill, against the lodge, to enforce the payment of a 1 Statement abridged; only the part of the opinion relating to the one point is given.

policy of insurance on the life of Arthur Hill, in favor of the plaintiff. By petition of the lodge, a corporation created under the laws of the United States, the suit was removed to the United States Circuit Court, district of West Virginia. From a judgment in favor of Ellen Hill the lodge appealed.]

The su

GOFF, Circuit Judge. * The first error assigned is to the action of the court in overruling the demurrer to the plaintiff's declaration. The grounds of the demurrer were that the circuit court of the United States had no jurisdiction of this case, that it did not properly present a federal question, and that the same was shown by the declaration itself, and also that there was no cause of action set forth in either count thereof. It should be remembered, in this connection, that this cause was removed from the state court on the petition of the defendant, in which it was alleged that said defendant was a corporation duly formed, organized and created by and under the laws of the United States, and also that the declaration as filed in the state court recited that the defendant was duly incorporated under an act of congress. This assignment of error is without merit, as it is plain that the demurrer was properly overruled by the court below. preme court of the United States has decided that corporations of the United States, created by and organized under acts of congress, are entitled to remove into the circuit court of the United States suits brought against them in the state courts, on the ground that such suits are suits "arising under the laws of the United States." Pacific Railroad Removal Cases, 115 U. S. 1, 5 Sup. Ct. Rep. 1113; Butler v. National Home, 144 U. S. 64, 12 Sup. Ct. Rep. 581. That court also entertained and decided a writ of error in the case of Knights of Pythias v. Kalinski, 163 U. S. 289, 16 Sup. Ct. Rep. 1047, which had been removed from a state court, in the eastern district of Louisiana, to the circuit court of the United States for that district, upon the petition of the said Knights of Pythias, in which it was alleged that it was a corporation created by and organized under an act of congress.

Affirmed.

Note. See, 1899, Supreme Lodge K. of P. v. England, 94 Fed. Rep. 369.

Sec. 322.

Liability to be sued.

In the United States courts, citizenship.

ST. LOUIS AND SAN FRANCISCO RAILWAY CO. v. JAMES.1

1896.

IN THE SUPReme Court of the United States. 161 U. S.
Rep. 545-572.

[In 1892 Etta James brought this action in the United States Circuit Court, western district of Arkansas, against the railway company, 1 Statement much abridged; arguments, part of opinion and dissenting opinion of Mr. Justice Harlan omitted.