by John Marshall Harlan

“ Even though a power exerted by a state, when inherently considered, may not, in and of itself, abstractly impose a direct burden on interstate commerce, nevertheless, such exertion of authority will be a direct burden on such commerce if the power as exercised operates a discrimination against that commerce, or, what is equivalent thereto, discriminates against the right to carry it on. ”

“ The absolute power of the state, as stated in the preceding proposition, does not include the right to exclude a foreign corporation from doing in a state interstate commerce business, since the regulation of such business is vested by the Constitution in Congress, and the states are impotent, as stated in the first and second propositions, to directly burden the right to do such business, or to discriminate against those doing it. ”

“ Subject to constitutional limitations, the states have the power to regulate the doing of local business within their borders. As a result of this power, and of the authority which government may exert over corporations, the states have the right to control the coming within their borders of foreign corporations. In cases where this power is absolute, the states may affix to the privilege such conditions as are deemed proper, or, without giving a reason, may arbitrarily forbid such corporation from coming in. ”

“ When, therefore, in a case where the absolute power to exclude obtains, a condition is affixed to the right to come into a state, and a foreign corporation avails of such right, it may not assail the constitutionality of the condition because, by accepting the privilege, it has voluntarily consented to be bound by the condition. ”

“ And yet such must be the direct and immediate result of applying an absolute act of exclusion to corporations who are not subject to such absolute exercise of power, because of the right bestowed upon them by the Constitution of the United States to carry on within a state an interstate commerce business. ”

“ The Pullman Company refused to pay the fee so demanded, upon the general ground, among others, that the state could not, consistently with the Constitution of the United States or with the company's rights under the Constitution, make it a condition of its doing intrastate business in Kansas, that the company should pay, in the form of a fee, a specified per cent of all its authorized capital ”

“ Although the cars, in passing in and out of the state, may not have been constantly the same, it was long ago settled (Pullman's Palace Car Co. v. Pennsylvania, 141 U.S. 18, 35 L. ed. 613, 3 Inters. Com. Rep. 595, 11 Sup. Ct. Rep. 876) that a proportionate number of the cars so used are to be considered as having a definite situs in the state, and therefore as property permanently therein, subject to the power of the state to tax. Taking this rule into consideration, in my opinion the case is controlled by the reasons given for my concurrence in the Western Union Case. ”

“ In such a case the limitation upon the power operates not only to fordid the exclusion, as the result of the expressed enactment of an unconstitutional condition, but also, in the nature of things, prohibits the absolute exclusion, although the reason for the attempted exertion of such a power be not given. ”

“ The decree declared that it should in nowise affect or restrict the interstate business of the company, nor affect any of its contracts, obligations, or corporate duties with or to the government of the United States. ”

“ The only provisions of that statute which need be recalled for the purposes of this opinion are these: 'Each corporation which has received authority from the [state] charter board to organize shall, before filing its charter with the secretary of state, as provided by law, pay to the state treasurer of Kansas, for the benefit of the permanent school fund, a charter fee of 1/10 of 1 per cent of its authorized capital, upon the first $100,000 of its capital stock, or any part thereof ”