ST. MARY'S PETROLEUM CO. v. WEST VIRGINIA

Mr. W.E. Chilton, for plaintiff in error:

Corporations are persons within the meaning of the Fourteenth Amendment. Santa Clara v. Southern Pac. R.R., 118 U.S. 394; 4 Thompson Corp. § 5448. The act deprives this corporation of the equal protection of the laws. It is a foreign domestic corporation and subjected to the law, while resident domestic corporations, which have chief works in the State, are not affected. No statute, except this one, has ever undertaken arbitrarily to take away from a corporation its right to provide against accident, surprise, mistake and fraud, in an alleged attempt to secure to all persons having controversies with it, a fair and reasonable way to secure service of process upon it. See State v. Goodwill, 33 W. Va. 179, as to limiting right of contract.

The attempt to put this legislation upon the ground of public safety or any other specious public aspect is, with all respect, the merest pretense. It is paternal legislation. Mugler v. Kansas, 123 U.S. 661; Williams v. Fears, 179 U.S. 274; People v. Gilson, 109 N.Y. 389; People v. Warden, 157 N.Y. 116.

The constitutionality of the statute is to be determined not by what has been done in any particular instance, but what may be done under and by virtue of its authority. It is for the courts to determine what is due process of law, or what is the equal protection of the laws, and not for the legislature. Lawton v. Steele, 152 U.S. 133; Allgeyer v. Louisiana, 165 U.S. 578; Yick Wo v. Hopkins, 118 U.S. 356; Cooley's Const. Lim., 6th ed., 484.

This act is unjust and unfair for another reason. It allows the auditor to accept service of process for a given class of corporations.

The act is justified by the Supreme Court of Appeals of West Virginia, solely upon the ground that the reserved power to alter or amend gives the State the right to pass this law, and the opinion proceeds upon the theory that there is no limit to this power of the legislature. But this position is controverted by Shields v. Ohio, 95 U.S. 319, and see Code W. Va., ch. 53, § 53; Const. W. Va., Art. XI, § 4, as to the right to select agents.

This act takes away, not only a fundamental right, but one granted in the original charter, and without which the corporation could not transact business. Lothrop v. Stedeman, 13 Blatchf. 134; Brannon, Fourteenth Amendment, 365; Holyoke v. Lyman, 15 Wall. 500, 519. Bank v. Owensboro, 173 U.S. 636, distinguished.

The statute fixes a tax upon this corporation for a private purpose and not for a public purpose, and in so doing, it deprives this corporation of its property without due process of law.

The act requires every corporation to pay to the auditor as its said attorney ten dollars for his services as such for the then current year. All taxation shall be for public purposes. Brannon, Fourteenth Amendment, 160; Cole v. LaGrange, 113 U.S. 1; Loan Ass'n v. Topeka, 20 Wall. 665.

This is an arbitrary exercise of power, imposing a tax for private services, whether performed or not, whether needed or not. One corporation may require services worth many hundred dollars; another may require no service. Yet both are required to pay the same. If the law charged so much for each process served or transmitted, there would be some attempt at fairness, and some grounds for likening the case to that where fees are charged and covered into the treasury. Charlotte v. Gibbs, 142 U.S. 385, and People v. Budd, 145 U.S. 175, are not determining upon this case. Mr. Clarke W. May, Attorney General of the State of West Virginia, for defendant in error:

The inhibition that no State shall deprive any person within its jurisdiction of the equal protection of the laws was designed to prevent any person or class of persons from being singled out as a special subject for discrimination and hostile legislation. Pembina v. Pennsylvania, 125 U.S. 181; Brannon's Fourteenth Amendment, 323. But see Kentucky Tax Cases, 115 U.S. 321; McGoon v. Illinois, 170 U.S. 283; it only requires that the same means and methods shall apply to all constituents of a class so that law may operate equally on all similarly situated. With the impotency of the law, the Constitution has no concern. Mobile v. Kimball, 102 U.S. 691.

In the case at bar, having the clear right to regulate and control its own creations, the State put all non-resident domestic corporations, which elected to have their places of business and works outside of the State, and all foreign corporations coming into the State, on an equal footing. Waters-Pierce Oil Co. v. Texas, 177 U.S. 43.

Plaintiff in error, having accepted the charter subject to the legislative right to amend or repeal it, cannot now complain of such amendment. Hooper v. California, 155 U.S. 648, 652; Railway Co. v. Mackey, 127 U.S. 205; N.Y. Life Ins. Co. v. Cravens, 178 U.S. 389; Louisville Nashville v. Kentucky, 183 U.S. 503; Allgeyer v. Louisiana, 165 U.S. 579.

For other statutes held not to be discriminatory, see Tullis v. Earle, 175 U.S. 348; Railway Co. v. Hume, 115 U.S. 348; Pacific Express Co. v. Seibert, 142 U.S. 339; Blake v. McClung, 172 U.S. 242; McGoun v. Trust Co., 170 U.S. 283; Clark v. Titusville, 184 U.S. 329; Brannon, Fourteenth Amendment, ch. 16; Narron v. Wilmington c. R.R. Co., 122 N.C. 856.

The imposition of a tax requiring the payment of ten dollars to the auditor for acting as attorney for a non-resident domestic corporation or a foreign corporation doing business in the State, which money goes to the State, is not a denial of the equal protection of the laws, nor does it deprive the company of its property without due process of law. Central Trust Co. v. Campbell, 173 U.S. 84. And see Barbier v. Connolly, 113 U.S. 27 and Soon Hing v. Crowley, 113 U.S. 703, as to the distinction between what is and what is not invalid.