(dissenting). I am unable to concur in the views expressed in the majority opinion, overruling the decisions of this court in Flint & Walling Mfg. Co. v. McDonald, 21 S. D. 526, 114 N. W. 684, 14 L. R. A. (N. S.) 673, 130 Am. St. Rep. 735; Rex. Buggy Co. v. Dinneen, 23 S. D. 474, 122 N. W. 433; Sioux Remedy Co. v. Lindgren, 27 S. D. 123, 130 N. W. 49. I was of the opinion that after some fluctuation by this court in its decisions the right of a foreign corporation to enforce its interstate contracts, without complying with the law of this state, was at last definitely settled; but it seems in taking this view I am not supported by the majority of the court, though all of the judges seem to have concurred in at least two of the decisions of this court above cited.
These decisions, in my judgment, are sustained by the great weight of authority, as shown by the cases cited in those opinions and by the decision of the Court of Appeals hereinafter referred to. Mr. Justice Sanborn, with whom concurred Mr. Justice Van Devanter, then Circuit Judge, how a member of the United States Supreme Court, and District Judge Phillips, in the case of Butler Bros. Shoe Co. v. U. S. Rubber Co., 156 Fed. 1, 84 C. C. A. 167, in a most exhaustive opinion, reviews the cases upon this subject', and that court held, as appears by.the headnote, that: “Every corporation empowered by the state of its creation to engage in interstate commerce may carry on that commerce in sound and recognized articles of commerce in every other state in the Union. Every prohibition, obstruction, or burden which the other states attempt to impose upon such business is unconstitutional and void. * * * Where a corporation .of one state is engaged in both interstate and intrastate commerce in any other state, the prohibition or the conditioning by the state of its exercise of its right to do business within its borders, without discriminating between that which constitutes interstate commerce.and that which constitutes intrastate commerce is unconstitutional and void, so far as it relates to the former. * * * Interstate commerce in sound and well-recog-, nized articles of commerce must be free, and any prohibition, obstruction, or burden of it by at state by any method is unconstitu*417tional. Such commerce may not be regulated by a state at all. The exclusive povuer to regulate commerce among the states is vested in Congress.”
And that learned court in its opinion says: “The review of tin: decisions of the Supreme Court, relating to the power of a stale to trammel or destroy the right of a corporation of another stale to do business within its borders, in which we have indulged may have been tedious; but it may be profitable, if it serve to correct' the erroneous view that such a corporation has no such right, and that all its powers and privileges without the limits of the state of its creation are at the mercy of any state in which it attempts to do business. * * * ”
The Constitution of the United States and the acts of Congress in pursuance thereof are the supreme law of the land. Under that Constitution and those laws, a corporation of one state has at least three absolute rights which it may freely exercise in every other state in the Union, without let or hindrance from its legislation or action: (x) Every corporation, empowered to engage in interstate commerce by the state in which it is created, may carry on interstate commerce in every state in the Union, free of even" prohibition and condition imposed by the latter. * * * Every law of a state which attempts to destroy these rights or to burden their exercise is violative of the Constitution of the United States and void.”
And the court in its opinion further says: “Where the Congress has passed no law regulating interstate commerce in well-recognized articles of commerce, that fact is conclusive evidence that it intends such commerce to be free, and any law of a state which prohibits or restrains it at all is unconstitutional and void.” That learned court further adds: “Many authorities have been examined which relate in some degree to the question which has now been decided. They are numerous, various, and conflicting, and any attempt to reconcile them must fail. The reasons for the conclusion reached have been stated, and some of the authorities examined are here cited for reference” — citing over a half page of authorities.
*418It would be difficult, in my judgment, for the court to more clearly sustain the three last decisions of this court than is done in that opinion, and with a few immaterial changes it might, in my judgment, be entitled Sioux Remedy Co. v. Lindgren. The effect of the decision of this court is, as I understand it, practically to review the decision of the Court of Appeals, and to hold in effect that that decision of the Court of Appeals was wrong; and that the state of South Dakota is empowered to impose such restrictions as ’ it may deem proper upon the right of a foreign corporation' to enforce its contracts against citizens of'this state; and that, unless a foreign corporation complies with the provisions of the law of this state, its contracts are unenforceable.
While the decision of the Court of Appeals may not be binding upon this court, it certainly is entitled to great weight, in view of the fact that this state constitutes a part of the Circuit Court of the Eighth Judicial Circuit, and the decision was made by a court having jurisdiction to decide questions involving the Constitution and laws of the United States. Of course, the United States District Court for this state will follow the decision made by the Court of Appeals; and hence it seems to me to be desirable that the decisions of the Supreme Court of this state should, as far as possible, be in harmony with the decisions of that court. Had this action been instituted to recover an amount in excess of $2,000 in the United States District Court for this state, and the pleadings and admissions been the same as appears in the record in this case, in my opinion, that court would have considered it its duty to direct a verdict in favor of the plaintiff.
It would seem to me, therefore, to be unwise for this court to overrule three of its own decisions on the construction to be given to our state laws which are fully sustained by the decision of the United States Court of Appeals, and thereby produce a direct conflict between our decisions and that of the Circuit Court of Appeals, especially where it is conceded that the decisions prior to the decision of the Court of Appeals “are in hopeless conflict” (13 Am. & Eng. Enc. of Law, 875; 6 Thompson on Corporations, § 7950), and so much in conflict that the learned Courts of Ap*419peals would not attempt to reconcile them. It is not surprising, therefore, that this court, in view of the “conflicting” and “irreconcilable decisions” in the earlier cases, was inclined to sustain our state law. But, upon -more full and careful examination of the authorities, I understood we arrived at the same conclusion as that reached by the Circuit Court of Appeals in the Rubber Case, viz., that this state had no power to impose any conditions or terms ■upon the 'right of foreign corporations to enforce interstate contracts as against citizens of this state.
The question in this case is, not to what extent interstate commerce may be burdened by the laws of this state, but whether or not any burden can be imposed upon that commerce, except in cases involving the sale of intoxicating liquors, which are provided for in what is known as the Wilson bill (Act. Aug. 8, 1890, c. 728, 26 Stat. 313 [U. S. Comp. St. 1901, p. 3177]) and as to purely police regulations. Clearly there is nothing in the record in this case that takes it out of the ordinary contracts for the sale of sound articles of commerce, and nothing involving the exercise of the police powers of the state.
It will be observed by an examination of the cases of Flint, etc., v. McDonald and Sioux Remedy Co. v. Lindgren, supra, that a large number of decisions were cited, to sustain the views expressed in those opinions, and also cases cited in the opinion of Rex Buggy Co. v. Dinneen, supra. I shall not attempt in this dissenting opinion to review those decisions, but I am confident that they will be found to sustain the views expressed in those cases. A number of the cases cited in those opinions were cited in the Rubber Case, and some of the quotations made in our opinions were also made by Judge Sanborn in that case. The Rubber Case was not cited in the McDonald Case, as the opinion in the former case had .not been reported at that time.
In my opinion, therefore, the judgment of the circuit court of Turner county, and order denying a new trial, should be reversed.