put foreign corporations which are creatures of foreign laws on the same footing as corporations which are the creatures of our own laws of the state from the simple fact of their being like corporations." "It can do no acts and make no contracts within or without the state which creates it except such as are authorized by its charter.” "It exists only in contemplation of the law and by force of the law, and where that law ceases to operate and is not longer obligatory the corporation can have no existence. That law must designate the place of its creation and it cannot migrate to another sovereignity."'16 The cases arising under the second and third restrictions may be treated within the discussion of the first or what is commonly called the "Commerce Clause." The Commerce Clause--"Congress shall Have Power to Regulate Commerce with Foreign Nations among the States and with the Indian Tribes.”—This has been by far the most fruitful source of litigation of any of the restrictions imposed by the federal constitution. A corporation organized by and under the laws of Michigan and domiciled there, seeks to transact business in Illinois. Illinois wishes to restrict or forbid it doing business there. One of the first questions that might arise is, "Is the Michigan corporation engaged in interstate commerce?" If it is, the way is comparatively clear, for the constitution and laws of the United States are the supreme laws of the land and any clause or article in a state constitution or statute passed by the state legislature that comes in conflict therewith must yield to the paramount law. It is true that if the Michigan corporation is engaged in interstate commerce and its business is of a nature such that different rules may be suitable to regulate the business in the different localities and the federal government has not acted, then the Illinois legislature may regulate and to that extent restrict-though it can never forbid-until the general government has acted. But when it has once 16 Bank of Augusta v. Earle (1839), 13 Pet. 586; 17 acted, then the Illinois law ceases to be of any force or effect. Again, if the subjectmatter requires a uniform system between the states, then Illinois can in no way restrict or forbid farther than is absolutely necessary to carry out its police or inspection regulations. The vital question will thus be seen to be, What is or what is not interstate commerce? If the foreign corporation is engaged in interstate commerce then the state cannot restrict or forbid, tax regulate, or discriminate against its doing business within its (the state's) territory. If it is not engaged in interstate commerce and is not a national corporation, nor a private corporation engaged in carrying out some national purpose or duty, the state may forbid absolutely; or discriminate against;18 or impose conditions upon;19 or charge a license fee 20 or tax ;21 or restrict its operations to certain territory; 22 or, having once admitted the foreign corporation, the state may revoke its license and expel.23 25 Our inquiry must be, then, "What is interstate commerce?' '24 "Commerce," says Chief Justice Marshall in Gibbons v. Odgen," "undoubtedly is traffic, but it is something more, it is intercourse. It describes the commercial intercourse between nations and parts of nations in all its branches." "It includes navigation and facilities for the transmission of intelligence by telegraph and telephone."'26 "It is not confined to the instrumentalities of intercourse known or in use when the constitution was adopted, but keeps pace with the advancement, the development of time and circumstances." The power to regulate all these agencies of intercourse "among the several states" has been expressly or impliedly granted to congress, and whenever by constitutional or legislative action a state seeks to interfere with the operations of a foreign corporation engaged in one of these pursuits, its enactments must fail. It would be useless to give 17 Leisy v. Hardin (1890), 135 U. S. 100. all the cases bearing on this point. Enough only will be given to show that when it is once determined that the business in which the foreign corporation is engaged, which is sought to be regulated, is interstate commerce, then the state's right to control has been granted to a higher authority, and any act by the state by way of regulation is void, unless it be some act necessary to the enforcement of its police regulations or inspection laws.27 The law in relation to foreign insurance companies gives us, perhaps, the clearest view of the power of a state over foreign corporations; the cases being almost entirely free from complications arising out of the limitations upon state power found in the federal constitution. The State may Exclude. This doctrine was laid down in Paul v. Virginia. 28 After deciding that the issuing of a policy of insurance was not a transaction of commerce, the court, speaking of foreign corporations, says: "Having no absolute right of recognition in other states, but depending for such recognition upon their assent, it follows, as a matter of course, that such assent may be granted upon such terms and conditions as those states may think proper to impose. They may exclude the foreign corporation entirely; they may restrict its business to certain localities; or they may exact such securities for the performance of its contracts with their citizens of the first section of the fourteenth amend- may determine for itself what corporations In Noble v. Mitchell,29 which was a suit to recover on an insurance policy issued by a Philadelphia company without having first complied with the Alabama law, the court says: "It is well settled that the legislature of the state has authority to exclude foreign insurance companies altogether, and may impose any restriction it may deem proper as a condition upon which foreign corporations may do business." The Illinois courts unwaveringly maintain the doctrine and seem even to go a step farther. In Pierce v. The People of the State of Illinois, 30 the court says, "it is competent for the legislature to declare all contracts of insurance made by a citizen of this state with a foreign company as, in their judgment, will best promote the having no right to do business here, void, on public interest. The whole matter rests in their discretion." This rule does not conflict with the first section of the fourteenth amendment, says Mr. Justice Field's in Pembina Silver Mining and Milling Co. v. Pennyslvania. The states may require for the admission within their corporations of other states, or any number of them, such conditions as they may choose, without acting in conflict with the concluding provision limits of the the ground of being contrary to the public. policy of the state." The Michigan court held in Home Ins. Co. v. Davis, 31 that, "while for a certain jurisdictional purposes a corporation is called a citizen of the state which charters it, the authorities are uniform in denying it the rights of actual citizenship anywhere else. It is competent for any state to prescribe any condition it chooses to prescribe, within which foreign corporations must act if they act at all. It may exclude fit so to do and them entirely if it seems 32 extent it may, in its discretion, choose, as the condition upon which the corporation shall be allowed to exercise its functions and privileges in the state." Third, the state may impose a license. This power is undoubted. Fourth, it Fourth, it may discriminate against.3 "Taxation against a foreign corporation need not be uniform. A state may discriminate between its own corporations and those created by other sovereignties. The legislature may classify for the purpose of taxation and license, and if such classification exclude foreign corporations and is not arbitrary but fair and just there can be no constitutional objection to it.35 Fifth: The state may pass retaliatory statutes. This, perhaps, is one of the least tried powers, but it has been sustained in New York, Michigan, Ohio, Indiana and Kansas. One of the cases most often cited in the State v. Ins. Co.,36 and as the provisions are very similar in all the states we will quote Indiana statute brought in question in the case. In 1877 Indiana enacted a statute which provided that, "when obligation or probibitions are, by the laws of any other state, imposed upon insurance companies of this state greater than are required by the laws of this state; then such obligations or prohibitions shall be imposed upon insurance companies of that state doing business here." Pennsylvania imposed a fee of $500 upon all insurance companies doing business in that commonwealth. Indiana officials immediately demanded a like fee of the Pennsylvania companies doing business in Indiana and the court sustained the statute holding, that it depended only on the happening of a contingency, and when the contingency happened the statute could be enforced. These are the principal measures resorted to by the states in enforcing their right or power to restrict or forbid foreign corporations doing business within their limits. Many others might be given, but the doctrine is so well established that the compilation of cases would serve no valuable purpose. Briefly, then, the foreign corporation is a mere creature of a foreign law. Its powers and liabilities are such only as are conferred upon it by its charter and the laws of the state creating it. It exists only in contemplation of the law and by force of the law, and where that law ceases to operate and is no longer obligatory the corporation can have no existence. It must dwell in the place of its creation and cannot migrate to another sovereignty. If it is engaged in interstate commerce or commerce with foreign nations, or is a national corporation, or is one engaged in carrying out some federal need, purpose, or duty, or, if it possesses some special privileges. granted by congress, then its rights and liabilities are controlled by the supreme law of the land, and the state cannot restrict or forbid their doing business within its limits. If these conditions do not exist, the power of the state is plenary. It may exclude the foreign corporation entirely, restrict its business to certain localities, exact license fees, tax, impose conditions upon, discriminate against, or make them subject to retaliatory statutes. Having once admitted it, the state may appeal its license and again exclude it subject only to the rule that in tax cases the law must apply to all of class and not be purely arbitrary. And this we believe to be the law. Springfield, Ill. PERSONAL T. E. LYON. INJURIES-DAMAGES - MENTAL SUFFERING. HORN v. BOISE CITY CANAL CO. Supreme Court of Idaho, May 20, 1901. 1. In case of personal injury resulting from care such condition, in case the injured parties are not guilty of contributory negligence. PER CURIAM: This action was commenced in the district court of Ada county to recover damages for personal injuries occasioned by the respondent Ardella Horn, wife of the respondent Jake Horn, by walking into a ditch owned by the appellant, the Boise City Canal Company, running through the city of Boise for a large portion of the way along the north side of Grove street, in said city, but upon the highway. The accident occurred between Eighth and Ninth streets. The respondents were traveling along said highway, returning in a cab from the depot to the Overland Hotel, where they were stopping. After leaving Ninth street, going easterly towards Eighth street, on Grove, one of the cab horses fell; whereupon the driver requested the respondent Mrs. Horn to step out of the cab for fear of an accident, as the horse might, in its struggles to get up, cause the cab to lurch, and thus injure said respondent. The evidence shows that respondent inquired as to where the sidewalk could be found, to which her husband, respondent Jake Horn, replied, “Over there." There were a number of arc lights along the streets, and the ground upon this occasion was covered with snow. The respondent Ardella Horn started to the north side of the street, in order to get upon the sidewalk. In approaching the ditch it appeared dark, snow being on either side, and said respondent naturally concluded that the ditch was the sidewalk, and stepped into it; the water being filled with slush ice, ruzning rapidly, and about two feet eight inches in depth. Said respondent lost her footing, sank once or twice, and attracted her husband by her screams, who rescued her from the ditch. Respondent was naturally chilled by her contact with said ice water, and suffered considerably from nervousness during that night, and for some time afterwards suffered more or less physical pain from her ankle being sprained and one of her wrists injured in her fall. The evidence does not show that said respondent lost any time, or was so disabled as to be disqualified from performing her ordinary domestic duties for any length of time, and no actual damage, by way of expense for medical service, was proven at the trial. The amount of damages demanded is $600, for which amount the jury brought in a verdict in favor of the respondent. The evidence shows that Grove street is 80 feet wide; that the accident in question occurred at a point opposite the Hardman Block; that it is 73 feet from the Hardman Block, on the southerly side of the street, to the said ditch, which is on the northerly side of the street, running parallel with said street. Appellant, at the close of the trial, moved for a nonsuit, which motion is as follows: "Defendant moves for a nonsuit, on the ground that the evidence on the part of the plaintiffs fails to show any negligence on the part of the defendant, and does show contributory negligence on the part of the plaintiffs." This motion was overruled by the court. The appellant presenting no evidence, the cause was submitted upon instructions to the jury, which returned the said verdict. Appellant insists upon a reversal upon the following grounds: (1) That the damage or injury claimed by the plaintiffs, if any was sustained by the plaintiffs, was not attributable to any negligence of the defendant corporation as the proximate cause thereof; (2) that the evidence fails to show any negligence on the part of defendant; (3) the evidence shows palpable contributory negligence on the part of plaintiffs; (4) there was no proof whatever of damages. There is no question but that the appellant is the owner of a ditch in the city of Boise, upon one of the public highways. This ditch being upon the public highway, in an inhabited city, it was the duty of appellant, as owner, to keep the same in such condition as not to endanger the life or person of the traveler upon said street. The evidence shows the 'failure upon the part of appellant to keep this property in such condition. This failure was negligence, and such as renders appellant responsible to persons, who, exercising reasonable care, should be injured by reason of such condition of said ditch. We do not think the evidence shows any contributory negligence upon the part of the respondent who was injured. Both she and her husband testified that they were ignorant of the existence of said ditch in that locality. Her attempt to reach the sidewalk, under the circumstances, was natural and prudent. It being night, the immediate locality being but dimly lighted, and the ground on either side of said ditch being covered with snow, the water, as a matter of course, appeared dark, and respondent evidently believed, as testified to by her, that said ditch was the sidewalk. It is true that the evidence of no witness states any amount of damages, but the respondent suf fered more or less physical pain for a considerable length of time. Both mental and physical suffering are elements of damages, and are to be considered, in actions of tort, by the jury. This is one of those cases in which it is impossible to show with reasonable certainty the amount of damages sustained by result of an injury. This being true, the measure must necessarily be left to the good sense and sound discretion of the jury. It is well said in 8 Am. & Eng. Enc. Law (2d Ed.), at page 630, that "in no other class of cases does the amount of damages rest so largely in the discretion of the jury as in those involving the recovery for the infliction of personal injuries, and the courts are very loath to interfere with a verdict in such cases, in the absence of plain evidence that the jury have abused the discretion vested in them." The same authority says: "The real question in all these cases is, not whether the amount of the damages awarded by the jury is more or less than is, in the opinion of the court, proper, but whether it is shown that the jury have abused the discretion vested in them." While it appears to us that the verdict of the jury is for rather a large amount for the injury received, yet under the evidence in the record, which we have carefully examined, we do not feel authorized to disturb the verdict upon the ground that the jury has abused the discretion vested in it, or that the jury has given an excessive verdict for damages while acting under the influence of passion or prejudice. For the foregoing reasons, the judgment is affirmed. Costs awarded to the respondents. NOTE.-Damages Recoverable for Mental Suffering.-There has been considerable discussion and confusion among the authorities in the endeavor to lay down the correct rule as to the recovery of damages for mental suffering. To day, however, the rules have become quite well settled and only those who have not a clear idea of the late cases will find difficulty in cases of this character. All author. ities are agreed that mental injuries constitutes an element of damages. See Chicago v. McClain, 133 Ill. 148; Connell v. Telegraph Co., 116 Mo. 34; Head v. Railroad, 79 Ga. 358; Seger v. Barkhamsted, 22 Conn. 290. Storrs, J., in the last case cited observed that the sufferings of the mind and body each frequently, if not usually, act reciprocally on the other. The dismay and the consequent shock to the feelings thus produced by the danger attending a personal injury not only aggravate it, but are frequently so appalling as to suspend the reason and disable a person from warding it off; and to say that the mental suffering does not enter into the character and extent of the actual injury, and form a part of it, would be an affront to good sense. So also in Head v. Railroad, supra, it was said: "Wounding a man's feelings is as much actual damage as breaking his limbs. The difference is that one is internal and the other external; one mental, the other physical; in either case the damages is not measurable with exactness. There can be a closer approximation in estimating the dam. age to a limb than to the feelings, but at the last the amount is indefinite." Mental suffering is therefore always a legitimate item in estimating the damages resulting from negligence where bodily injury results. Chicago v. McLean, 133 Ill. 148; Reinke v. Bentley, 90 Wis. 457; Wallace v. Railroad, 104 N. Car. 442; Townsend v. Briggs, 99 Cal. 481; Wabash R. R. v. Morgan, 132 lnd. 430; Riley v. Railroad, 27 W. Va. 145; San Antonio R. R. v. Corley (Tex. Civ. App.), 26 S. W. Rep. 903; Kenney v. Folkerts, 84 Mich. 616; Alexander v. Humber, 86 Ky. 565; Richmond R. R. v. Norment, 84 Va. 167, 10 Am. St. Rep. 827; Salena v. Trosper, 27 Kan. 544; Giblin v. McIntyre, 2 Utah, 384; Wall v. Cameron, 6 Colo. 275; Montgomery R. R. v. Mallette, 92 Ala. 209; Weber v. Creston, 75 Iowa, 16. Thus, one may recover for mental anguish due to disfigurement of person. The case of Heddles v. Railroad, 77 Wis. 228, 20 Am. St. Rep. 106, was an action for injuries to a boy seven years old, which necessitated the amputation of both legs. The jury were instructed that in assessing damages they should give adequate compensation for the plaintiff's physical pain and mental suffering, past and future, occasioned by his injuries; also for the mortification and anguish of mind which he had suffered, and would in the future suffer, by reason of the mutilation of his body, and the fact that he might become an object of curiosity or ridicule among his fellows. This charge was held not to be error. It is, of course, generally held that there can be no recovery for mental suffering for physical injuries of another. Atchison, etc. R. R. v. Chance, 57 Kan. 40; Keyes v. Railroad, 86 Minn. 290; Pacific Express Co. v. Black, 8 Tex. Civ. App. 363. Thus, it was held in one action against a railroad company for fatal injuries inflicted upon the plaintiff's intestate, where evidence was sought to be introduced of the mental distress of the decedent prior to his death on account of his apprehension that he would leave his wife and child in a dependent and helpless condition. Atchison, etc. R. R. v. Chance, supra. Where mental suffering is a consequence of a "recognized cause of action," it becomes an element in the assessment of damages. Melcher v. Scruggs, 72 Mo. 407; Barbour v. Stephenson, 32 Fed. Rep. 66; Summerfield v. Telegraph Co., 87 Wis. 1; Simons v. Busby, 119 Ind. 13; Vogel v. MeAuliffe, 18 R. I. 791; Hampton v. Jones, 58 Iowa, 317; Western Union v. Rogers, 68 Miss. 748, 24 Am. St. Rep. 300; Breon v. Henkle, 14 Oreg. 494; Chapman v. Western Union, 90 Ky. 265. Thus, where the employees of a railroad company wrongfully dumped earth and stone into and against the plaintiff's home, it was held proper to allow a recovery in damages for the insults and indignities offered by such em. ployees, and for the illness of the plaintiff's wife resulting therefrom. Ft. Worth, etc. R. R. v. Smith (Tex. Civ. App. 1894), 25 S. W. Rep. 1032. This latter rule, of course, presupposes no direct wrong other than mere negligence from which injury has resulted. One of the best considered authorities on the question of mental suffering as an element of damages is that of Spade v. Boston Railroad, 168 Mass. 284, where it was held that in an action to recover for an injury sustained through the mere negligence of another, there can be no recovery for a bodily injury caused by mere fright and mental disturbance. The court gave this clear statement of the rule: "The law of negligence in its special application to cases of accidents has received great development in recent years. The number of actions brought is very great. This should lead courts well to consider the grounds on which claims for compensation properly rest, and the necessary limitations of the right to recover. We remain satisfied with the rule that there can be no recovery for fright, terror, alarm, anxiety, or distress of mind, if these are unaccompanied by some physical injury; and if this rule is to stand, we think it should also be held that there can be no recovery for such physical injuries as may be caused solely by such mental disturbance where there is no injury to the person from without. The logical vindication of this rule is, that it is unreasonable to hold persons who are merely negligent bound to anticipate and guard against fright and the consequences of fright; and that this would open a wide door for unjust claims, which could not successfully be met." These views are supported by the following leading authorities: Mitchell V. Rochester Railway, 151 N. Y. 107; Ewing v. Railway, 147 Pa. St. 40; Haile v. T. & P. Railway, 60 Fed. Rep. 557. Contra: Bell v. Great Northern Railway, 26 L. R. (Ir.) 428; Purcell v. Railway, 48 Minn. 134. Justice Allen, after laying down the above rule, makes this important exception: "It is hardly necessary to add that this decision does not reach those classes of ac tions where an intention to cause mental distress or to hurt the feelings is shown, or is reasonably to be inferred, as, for example, in cases of seduction, slander, malicious prosecution, or arrest, and some others. Nor do we include cases of acts done with |