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as well as a tax on its property beyond the limits of the state, in violation of the due process of law clause; that thus it was violative of the constitutional rights of the company; and that the right of the company to continue to do business in Kansas was not and could not be affected by the condition. The general principle was again announced in the following words (pages 47, 48 ( 30 S. Ct. 206)):
'The right of the telegraph company to continue the transaction of local business in Kansas could not be made to depend upon its submission to a condition prescribed by that state, which was hostile both to the letter and spirit [271 U.S. 583, 598] of the Constitution. The company was not bound, under any circumstances, to surrender its constitutional exemption from state taxation, direct or indirect, in respect of its interstate business and its property outside of the state, any more than it would have been bound to surrender any other right secured by the national Constitution.'
Since that decision, the same principle has been reiterated many times and never departed from. Pullman Co. v. Kansas, 216 U.S. 56, 63 , 30 S. Ct. 232; International Text-Book Co. v. Pigg, 217 U.S. 91 , 30 S. Ct. 481, 27 L. R. A. (N. S.) 493, 18 Ann. Cas. 1103; Herndon v. Chi., R. I. & Pac. Ry., 218 U.S. 135, 158 , 30 S. Ct. 633; Harrison v. St. L. & San Francisco R. R., 232 U.S. 318, 332 , 34 S. Ct. 333, L. R. A. 1917F, 1187; Looney v. Crane Co., 245 U.S. 178, 187 , 38 S. Ct. 85; International Paper Co. v. Massachusetts, 246 U.S. 135, 142 , 143 S., 38 S. Ct. 292, Ann. Cas. 1918C, 617; Western Union Tel. Co. v. Foster, 247 U.S. 105, 114 , 38 S. Ct. 438, 1 A. L. R. 1278; Public Utility Commrs. v. Ynchausti & Co., 251 U.S. 401, 404 , 40 S. Ct. 277; Terrall v. Burke Constr. Co., supra; Burnes Nat. Bank v. Duncan, 265 U.S. 17, 24 , 44 S. Ct. 427; Fidelity & Deposit Co. of Maryland v. Tafoya et al., 270 U.S. 426 , 46 S. Ct. 331 (decided March 15, 1926).
And the principle, that a state is without power to impose an unconstitutional requirement as a condition for granting a privilege, is broader than the applications thus far made of it. In Western Union Tel. Co. v. Foster, supra, two telegraph companies were engaged in transmitting the quotations of the New York Stock Exchange among the states. This was held to be interstate commerce, and an order of the public Service commission of Massachusetts, requiring the companies to remove a discrimination, was held to infringe their constitutional rights. One of the grounds upon which the order was defended was that it rested upon the power of the state over the streets which it was necessary for the telegraph to cross. That contention was answered broadly (page 114 (38 S. Ct. 439)):
'But, if we assume that the plaintiffs in error under their present charters could be excluded from the streets, [271 U.S. 583, 599] the consequence would not follow. Acts generally lawful may become unlawful when done to accomplish an unlawful end (United States v. Reading Co., 226 U.S. 324, 357 , 33 S. Ct. 90), and a constitutional power cannot be used by way of condition to attain an unconstitutional result (Western Union Telegraph Co. v. Kansas, 216 U.S. 1 , 30 S. Ct. 190; Pullman Co. v. Kansas, 216 U.S. 56 , 30 S. Ct. 232; Sioux Remedy Co. v. Cope, 235 U.S. 197, 203 , 35 S. Ct. 57. The regulation in question is quite as great an interference as a tax of the kind that repeated decisions have held void. It cannot be justified 'under that somewhat ambiguous term of police powers."
And, in almost the last expression of this court upon the subject, Burnes Nat. Bank v. Duncan, supra, the rule is none the less broadly but more succinctly stated to be (page 24 (44 S. Ct. 428)):
'The states cannot use their most characteristic powers to reach unconstitutional results. Western Union Telegraph Co. v. Kansas, 216 U.S. 1 (30 S. Ct. 190); Pullman Co. v. Kansas, 216 U.S. 56 (30 S. Ct. 232); Western Union Telegraph Co. v. Foster, 247 U.S. 105 , 114 (38 S. Ct. 438, 1 A. L. R. 1278).'
We hold that the act under review, as applied by the court below, violates the rights of plaintiffs in error as guaranteed by the due process clause of the Fourteenth Amendment, and that the privilege of using the public highways of California in the performance of their contract is not and cannot be affected by the unconstitutional condition imposed. Western Union Tel. Co. v. Kansas, supra page 48 (30 S. Ct. 190).
The court below seemed to think that, if the state may not subject the plaintiffs in error to the provisions of the act in respect of common carriers, it will be within the power of any carrier, by the simple device of making private contracts to an unlimited number to secure all the privileges afforded common carriers without assuming any of their duties or obligations. It is enough to say that no such case is presented here, and we are not to be [271 U.S. 583, 600] understood as challenging the power of the state, or of the Railroad Commission under the present statute, whenever it shall appear that a carrier, posing as a private carrier, is in substance and reality a common carrier, to so declare and regulate his or its operations accordingly.
Judgment reversed.
Mr. Justice HOLMES (dissenting).
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