§ 1775. State power to control interstate commerce is limited. It is a difficult question which cannot be fully considered here to determine what constitutes doing business within a State by a foreign corporation and the difficulty is increased especially in regard to sales of goods by the provision of the Federal Constitution which intrusts to the National Congress the regulation of interstate and foreign commerce. "The only limitation upon this power of the State to exclude a foreign corporation from doing business within its limits, or hiring offices for that purpose, or to exact conditions for allowing the corporation to do business or hire offices there, arises where the corporation is in the employ of the Federal government, or where its business is strictly commerce, interstate or foreign. The control of such commerce, being in the Federal government, is not to be restricted by State authority." " Subject to this important qualification the matter is within the State's control. "The authority of the State to restrict the right of a foreign corporation to engage in business within its limits or to sue in its courts, so long as interstate commerce be not thereby burdened, is perfectly well settled." 17a

In construing State statutes regulating foreign corporations the courts endeavor to give such a construction as will be in accordance with the Federal Constitution, and if such a construction is not possible, the statutes themselves so far as they go beyond the permitted limits are unconstitutional and void.

Am. Rep. 533; Sinnott v. German-
American Bank, 164 N. Y. 386, 58 N.
E. 286 (see also 165 N. Y. 646, 59 N.
E. 1130); Taylor v. Bell & Bogart
Soap Co., 18 N. Y. App. Div. 175, 45
N. Y. S. 939; Loeb v. Firemen's Ins.
Co., 68 N. Y. App. Div. 113, 79 N. Y.
S. 510; Vandergift v. Bertron, 83 N.
Y. App. Div. 548, 82 N. Y. S. 153;
Hopp v. McWhirter, 107 N. Y. S. 823.
See also in regard to the effect of a
Michigan statute requiring the filing
of a certificate stating certain details
of partnership agreements: Denton
v. Booth, 202 Mich. 215, 168 N. W.
491, 2 A. L. R. 114, stated supra, n. 15.

17 Pembina Mining Co. v. Pennsylvania, 125 U. S. 181, 190, 31 L. Ed. 650, 8 S. Ct. 737.

17a Interstate Amusement Company v. Albert, 239 U. S. 560, 568, 60 L. Ed. 439, 36 S. Ct. 168, citing Paul v. Virginia, 8 Wall. 168, 181, 19 L. Ed. 357; Hooper v. California, 155 U. S. 648, 655, 39 L. Ed. 297, 15 S. Ct. 207; Bank of Augusta v. Earle, 13 Pet. 519, 589, 591, 10 L. Ed. 274; Anglo-American Prov. Co. v. Davis Prov. Co., 191 U. S. 373, 48 L. Ed. 225, 24 S. Ct. 92; Sioux Remedy Co. v. Cope, 235 U. S. 197, 203, 59 L. Ed. 193, 35 S. Ct. 57.

§ 1776. Unconstitutional state prohibitions.

A foreign corporation, therefore, without conforming to local statutes may, except so far as is indicated in the following section, ship its goods into another State to purchasers; and may also solicit orders in such State by advertisement or by traveling salesmen. 18 Upon similar principles a buyer for an unlicensed foreign corporation may solicit goods for shipment to his principal.19 But a corporation, although doing only interstate business within a State is not thereby rendered immune from service of process upon its agents."

It is beyond the power of a State to prohibit a foreign corporation which is a regular means of interstate commerce (as a telegraph company) from carrying on such commerce within its borders, even for non-payment of legitimate taxes. 20 Nor can a State impose a tax on any foreign corporation which operates as a direct burden on interstate commerce; 21 nor can such a corporation be prohibited from maintaining an action in the Federal courts; 22 nor required to file statements of its condition as a preliminary to purely interstate business. 224

§ 1777. Police power of the states.

The only qualification of the exclusive power of Congress in dealing with interstate commerce is imposed by the police power of the several States. By virtue of this power deceptive or dangerous and unhealthful goods may be excluded, but the test of what is deceptive or dangerous and unhealthful does not depend on the opinion of the State Legislature. Thus formerly intoxicating liquors could not be excluded, 23 without the consent of Congress; 24 oleomargarine, as such, cannot be shut out,25 but artificially colored oleomargarine may be; 26 and a State may limit or prohibit the sale of goods, such as cigarettes (which, though legitimate articles of commerce and not to be classed with diseased meat or decayed fruit, are yet thought by many

20 Western Union Tel. Co. v. Attorney General of Massachusetts, 125 U. S. 530, 31 L. Ed. 790, 8 S. Ct. 961; Williams v. Talladega, 226 U. S. 404, 415, 57 L. Ed. 275, 33 S. Ct. 116.

21 Allen v. Pullman's Palace Car Co., 191 U. S. 171, 48 L. Ed. 134, 24 S. Ct. 39; St. Louis Southwestern R. Co. v. Arkansas, 235 U. S. 350, 59 L. Ed. 265, 35 S. Ct. 99; Crew Levick Co. v. Pennsylvania, 245 U. S. 292, 62 L. Ed. 295, 38 S. Ct. 126; International Paper Co. v. Massachusetts, 246 U. S. 135, 62 L. Ed. 624, 38 S. Ct. 292.

22 David Lupton's Sons Co. v. Automobile Co., 225 U. S. 489, 56 L. Ed. 1177, 32 S. Ct. 711; Dunlop v. Mercer, 156 Fed. 545, 86 C. C. A. 435.

224 Buck Stove & Range Co. v.

Vickers, 226 U. S. 205, 33 S. Ct. 41, 57 L. Ed. 189.

23 Leisy v. Hardin, 135 U. S. 100, 34 L. Ed. 128, 10 S. Ct. 681; Rhodes v. Iowa, 170 U. S. 412, 42 L. Ed. 1088, 18 S. Ct. 664.

24 In 1913, by the Webb-Kenyon Law Congress gave permission to States to prohibit importation of intoxicating liquors; and the validity of this statute has been sustained. Clark Distilling Co. v. Western Maryland Ry. Co., 242 U. S. 311, 61 L. Ed. 326, 37 S. Ct. 180; Seaboard Air Line Ry. v. North Carolina, 245 U. S. 298, 62 L. Ed. 299, 38 S. Ct. Rep. 96.

25 Schollenberger v. Pennsylvania, 171 U. S. 1, 43 L. Ed. 49, 18 S. Ct. 757.

26 Plumley v. Massachusetts, 155 U. S. 461, 39 L. Ed. 223, 15 S. Ct. 154.

to be harmful), after they have been taken from the original packages or are no longer in the hands of the original buyer, provided no discrimination is made between goods which are imported and those produced within the State. Game laws prohibiting the possession and sale of game at certain seasons including that taken in other States or in foreign countries are also constitutional. 28 A State may require a formula to be given by the seller of concentrated food for stock; 29 and the use of trading stamps may be regulated.30

§ 1778. Illustrations of protected interstate commerce.

31

Subject to the slight qualification thus imposed by the police power, a corporation in one State may not only sell its goods for delivery in another State but collect the price in the latter State. And goods may be sent to a factor in another State for sale on commission, the title to remain in the foreign corporation until the goods are sold, without thereby violating statutes prohibiting the doing of business within the State by unlicensed foreign corporations. 32 And even though a corporation of one State maintain a storehouse in another, to which goods are shipped as ordered and from which they are distributed, any laws of the latter State not justifiable under the police power, cannot affect its business, for it is interstate commerce.33 But if it is an agent's duty to sell and deliver, as a resident agent of a foreign corporation, it seems that the latter

Austin v. Tennessee, 179 U. S. 343, 44 L. Ed. 224, 21 S. Ct. 132.

28 New York v. Hesterberg, 211 U. S. 31, 53 L. Ed. 75, 29 S. Ct. 10.

29 Savage v. Jones, 225 U. S. 501, 56 L. Ed. 1182, 32 S. Ct. 715; Standard Food Co. v. Wright, 225 U. S. 540, 56 L. Ed. 1197, 32 S. Ct. 784.

30 Rast v. Van Deman, 240 U. S. 342, 60 L. Ed. 679, 36 S. Ct. 370.

31 Kirven v. Virginia, etc., Co., 145 Fed. 288, 76 C. C. A. 172; New York, etc., Co. v. Williams, 102 N. Y. App. Div. 1, 92 N. Y. S. 808, affd., 184 N. Y. 579, 77 N. E. 1192. And see cases cited, supra, n. 18. In Sioux Remedy Co. v. Cope, 235 U. S. 197, 35 S. Ct. 57, 59 L. Ed. 193, the court held in

valid so far as it applied to an action for the price of goods sold in interstate commerce a statute of South Dakota which required as a condition of the maintenance of an action by a foreign corporation in the courts of the State, appointment of an agent on whom process in any suit might be served, the filing of a copy of this appointment and of its charter with the Secretary of State and the payment of a fee of $25.

32 Atlas Engine Works v. Parkinson, 161 Fed. 223.

33 Caldwell v. North Carolina, 187 U. S. 622, 57 L. Ed. 336, 23 S. Ct. 229; Rock Island Plow Co. v. Peterson, 93 Minn. 356, 101 N. W. 616.

is not engaged in interstate commerce, but is doing business within the State, and is, therefore, subject to local laws. 34 And the installation of machinery or other goods may be so far a distinct matter from the interstate sale as to subject a corporate seller undertaking the work to local laws imposing conditions on the transaction of business within the State. 34

§ 1779. Where some things promised are illegal, and some legal, the latter may be enforced if consideration is

It was early decided, 35 that where some covenants of an indenture are legal and others illegal the legal covenants may be enforced. This is the simplest form of the problem of partly illegal contracts. If legal consideration has actually been given and a unilateral contract formed, or if the promises are under seal and binding without consideration, the rule thus early established has never been questioned. 36 For the same reason