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There is involved in the inquiry not a single power, but two distinct powers. One of these, the power to prohibit the use of the public highways in proper cases, the state possesses; and the other, the power to compel a private carrier to assume against his will the duties and burdens of a common carrier, the state does not possess. It is clear that any attempt to exert the latter, separately and substantively, must fall before the partamount authority of the Constitution. May it stand in the conditional form in which it is here made? If so, constitutional guaranties, so carefully safeguarded against direct assault, are open to destruction by the indirect, but no less effective, process of requiring a surrender, which, though in form voluntary, in fact lacks none of the elements of compulsion. Having regard to form alone, the act here is an offer to the private carrier of a privilege, which the state may grant or deny, upon a condition which the carrier is free to accept or reject. In reality, the carrier is given no choice, except a choice between the rock and the whirlpool-an option to forego a privilege which may be vital to his livelihood or submit to a requirement which may constitute an intolerable burden.
It would be a palpable incongruity to strike down an act of state legislation which, by words of express divestment, seeks to strip the citizen of rights guaranteed by the federal Constitution, but to uphold an act by which the same result is accomplished under the guise of a surrender of a right in exchange for a valuable privilege which the state threatens otherwise to withhold. It is not necessary to challenge the proposition that, as a general rule, the state, having power to deny a privilege altogether, may grant it upon such conditions as it sees fit to impose. But the power of the state in that respect is not [271 U.S. 583, 594] unlimited, and one of the limitations is that it may not impose conditions which require the relinquishment of constitutional rights. If the state may compel the surrender of one constitutional right as a condition of its favor, it may, in like manner, compel a surrender of all. It is inconceivable that guaranties embedded in the Constitution of the United States may thus be manipulated out of existence.
The prior decisions of this court amply justify this conclusion. In Paul v. Virginia, 8 Wall. 168, 181, the rule was stated to be that the state, having the power to exclude foreign corporations from its limits, may admit them upon such terms and conditions as the state may think proper to impose. But in Insurance Co. v. Morse, 20 Wall. 445, 456, it was said that this sweeping language must be understood with reference to the facts of that case; and that it could not be extended to include conditions repugnant to the Constitution and laws of the United States. In Barron v. Burnside, 121 U.S. 186, 197 , 7 S. Ct. 931, this limitation was expressly reaffirmed. Mr. Justice Blatchford, speaking for the court, said (page 200 (7 S. Ct. 936)):
'The question as to the right of a state to impose upon a corporation engaged in interstate commerce the duty of obtaining a permit from the state, as a condition of its right to carry on such commerce, is a question which it is not necessary to decide in this case. In all the cases in which this court has considered the subject of the granting by a state to a foreign corporation of its consent to the transaction of business in the state, it has uniformly asserted that no conditions can be imposed by the state which are repugnant to the Constitution and laws of the United States. La Fayette Ins. Co. v. French, 18 How. 404, 407 (15 L. Ed. 451); Ducat v. Chicago, 10 Wall. 410, 415 (19 L. Ed. 972); Insurance Co. v. Morse, 20 Wall. 445, 456 ( 22 L. Ed. 365); St. Clair v. Cox, 106 U.S. 350 , 356 (1 S. Ct. 354); Phila. Fire Ass'n v. New York, 119 U.S. 110 , 120 (7 S. Ct. 108).'
In Southern Pacific Co. V. Denton, 146 U.S. 202, 207 , 13 S. Ct. 44, there was under consideration a Texas statute re- [271 U.S. 583, 595] quiring a foreign corporation desiring to do business in the state to agree that it would not remove any suit from a court of the state into the Circuit Court of the United States. This court held the statute invalid, saying:
'But that statute, requiring the corporation, as a condition precedent to obtaining a permit to do business within the state, to surrender a right and privilege secured to it by the Constitution and laws of the United States, was unconstitutional and void, and could give no validity or effect to any agreement or action of the Corporation in obedience to its provisions.'
After the Denton Case came Security Mutual Life Ins. Co. v. Prewitt, 202 U.S. 246 , 26 S. Ct. 619, 6 Ann. Cas. 317. That decision purported to follow the case of Doyle v. Continental Ins. Co., 94 U.S. 535 , and to differentiate Barron v. Burnside, supra, and it was thought to have materially modified the rule laid down in the Morse, Burnside, and Denton Cases. But, however this may be, both the Prewitt and Doyle Cases have been quite recently overruled, and the views of the minority therein expressed declared to be now the law of this court. Terral v. Burke Constr. Co., 257 U.S. 529, 533 , 42 S. Ct. 188, 21 A. L. R. 186. In the light of this declaration, these dissenting views become pertinent and controlling. In the Doyle Case, Mr. Justice Bradley, speaking for the minority, said (pages 543, 544):
'Though a state may have the power, if it sees fit to subject its citizens to the inconvenience, of prohibiting all foreign corporations from transacting business within its jurisdiction, it has no power to impose unconstitutional conditions upon their doing so. Total prohibition may produce suffering, and may manifest a spirit of unfriendliness towards sister states; but prohibition, except upon conditions derogatory to the jurisdiction and sovereignty of the United States, is mischievous, and productive of hostility and disloyalty to the general government. If a [271 U.S. 583, 596] state is unwise enough to legislate the one, it has no constitutional power to legislate the other. ...
'The whole thing, however free from intentional disloyalty, is derogatory to that mutual comity and respect which ought to prevail between the state and general governments, and ought to meet the condemnation of the courts whenever brought within their proper cognizance.'
In the Prewitt Case, Mr. Justice Day, dissenting, said (pages 267-269 ( 26 S. Ct. 628)):
'In the opinion of the court in this case the doctrine that a corporation cannot be permitted to be deprived of its right to do business because of the assertion of a federal right is said not to be denied, because the right of a foreign corporation to do business in a state is not secured or guaranteed by the federal Constitution. Conceding the soundness of this general proposition, it by no means follows that a foreign corporation may be excluded solely because it exercises a right secured by the federal Constitution. For, conceding the right of a state to exclude foreign corporations, we must no overlook the limitation upon that right, now equally well settled in the jurisprudence of this court, that the right to do business cannot be made to depend upon the surrender of a right created and guaranteed by the federal Constitution. If this were otherwise, the state would be permitted to destroy a right created and protected by the federal Constitution under the guise of exercising a privilege belonging to the state, and as we have pointed out, the state might thus deprive business within its borders, except upon the condition that it strip itself of the protection given it by the federal Constitution. * *
'While we concede the right of a state to exclude foreign corporations from doing business within its borders for reasons not destructive of federal rights, we deny that the right can be made to depend upon the sur- [271 U.S. 583, 597] render of the protection of the federal Constitution, which secures to alien citizens the right to resort to the courts of the United States.
'In the cases decided in this court subsequently to Barron v. Burnside, while the general proposition is affirmed that a state may prescribe conditions upon which a foreign corporation may do business within its borders, in no one of them is it asserted that the state may exclude or expel such corporations because they insist upon the exercise of a right created by the federal Constitution. On the contrary, this court has repeatedly said that such right of exclusion was qualified by the superior right of all citizens to enjoy the protection of the federal Constitution.'
In Western Union Tel. Co. v. Kansas, 216 U.S. 1 , 34-48, 30 S. Ct. 190, upon a full review of the prior decisions, the principles set forth in the foregoing quotations was again reaffirmed. That case involved the validity of a Kansas statute which provided that a corporation of another state, though engaged in interstate business, must, as a condition of doing local business, pay to the state certain graduated percentages of its capital stock. It was held that this requirement operated as a burden on the interstate business of the company, in violation of the commerce clause of the Constitution,
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