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§ 464. “Disability or Discrimination.”

No privileges or immunities are secured against disability and discrimination except those annexed by the laws of a State to the combined conditions of State residence and British subjectship. A State is not forbidden to enact that certain privileges and immunities may flow from a contractual relation. Thus a State law prohibiting, in certain districts, the sale of goods other than the agricultural products and articles manufactured in the State, by persons not residents of the State, until license therefor has been obtained, is unconstitutional. (Ward v. Maryland, 12 Wall. 418.) On the other hand, in contrast to this case, privileges and immunities attached by law to contracts by reason of the place where such contracts are made or executed are not within the mischief intended to be rectified by this section. It would not be a disability or discrimination prohibited by this section, for a State to deny to a widow, whose marriage was not contracted within the State or executed there by a matrimonial domicile, the same rights of property in the estate of a deceased husband as is given to a widow whose marriage was there contracted, or where the spouses live in the State. (Conner v. Elliott, 18 How. 591.) Other American cases may be cited in illustration of the operation of this section.

A State statute which, in effect, provides that where a defendant is out of the State the statute of limitations shall not run against the plaintiff if the latter resides in the State, but shall if he resides out of the state, is not repugnant to the “privilege and immunity” clause (supra). (Ryan v. Carter, 93 U.S. 78; Baker, Annot. Const. p. 158.)

A law of Iowa, which provides that a person having in his possession “Texas cattle” which have not been wintered north of a certain line shall be liable for all damages caused by allowing such cattle to run at large and thereby spread the Texas cattle fever, is not a denial to the citizens of other States of the rights, privileges and immunities accorded to citizens of Iowa. (Kimmish v. Ball, 129 U.S. 217. Id.)




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The “privilege and immunity” clause does not control the power of the State Governments over the rights of their own citizens. Its sole purpose is to declare to the several States that whatever those rights are, as you grant or establish them to your own citizens, or as you limit or qualify, or impose restrictions on their exercise, the same, neither more nor less, shall be the measure of the rights of citizens of other States within your jurisdiction. (Slaughter-House Cases, 16 Wall. 36. Id.)

This section, like the Fourteenth Amendment, is directed against State action. Its object is to place the citizens of each State on the same footing with citizens of other States, and inhibit discriminating legislation against them by other States. (United States v. Harris, 106 U.S. 629. Id.)

Each State owns the tide-waters and beds of all tide waters within its jurisdiction; a right of fishery is a property right, and not a mere privilege or immunity of citizenship. Therefore a State may grant to its own citizens the exclusive privilege of using the lands covered by water on its borders for the purpose of maintaining oyster-beds, and may with penalties prohibit such use by citizens of other States. (McCready v. Virginia, 94 U.S. 391. Id. 157.)

It seems doubtful whether the rule affirmed in McCready v. Virginia (supra) would be followed in a legal construction of sec. 117. To grant subjects of the Queen, in a State, the exclusive right to plant oysters in soil covered by tidal waters within a State and to forbid the subjects of the Queen resident in another State to do so, would look uncommonly like a discrimination in favour of the people of one State, and a disability on the people, subjects of the Queen, of another State; as such it would be within the mischief intended to be suppressed by the Constitution.

CORPORATIONS.—It has been held in the United States that a corporation created by a State is not a “citizen” of the State, so as to be entitled to the privileges and immunities of citizens in the several States. (Paul v. Virginia, 8 Wall. 168; Blake v. M‘Clung, 172 U.S. 239.) It would seem equally clear that a corporation cannot be a “subject of the Queen” within the meaning of this section. Accordingly a State may discriminate between its own corporations and those of another State—subject of course to the limitations imposed by other sections of the Constitution. (Ducat v. Chicago, 10 Wall. 410.)

Recognition of laws, &c., of States.

118. Full faith and credit465 shall be given, throughout the Commonwealth, to the laws, the public Acts and records, and the judicial proceedings of every State.

UNITED STATES.—Full faith and credit shall be given in each State to the public acts, records, and judicial proceedings of every other State. And the Congress may, by general laws, prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof.—Const., Art. iv., sec. 1.

HISTORICAL NOTE.—In the Commonwealth Bill of 1891 were provisions identical with this section and with sub-sec. xxv. of sec. 51—provisions which together make up the American section quoted above. (Conv. Deb., Syd, 1891, p. 883.) At the Adelaide session in 1897, these provisions were adopted verbatim. At the Melbourne session a suggestion by the Legislative Council of New South Wales to omit (in sec. 51) “throughout the Commonwealth” was negatived.

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