by the principal, but was not known to the defendant Surety Company, so far as appears.

In February, 1905, a further ordinance was passed, approved by the Governor in March and by the President on May 12, which recited a failure by the Company to comply with the terms of §§ 15 and 18, either in their original form or as amended, and therefore repealed and revoked the grant and declared all "sureties or obligations anty

given by the said grantee as a guarforfeited to the People of Porto Rico to all and whatsoever extent the same shall be liable under the law." In September, 1906, this suit was begun.

The main question is the scope of the condition of the bond. The plaintiff says that it was for the due performance of all the terms required by the ordinance, and, since the bond was a contract made in Porto Rico, as no doubt it was, at least as between these parties, that upon any breach of condition the whole penalty became due by the local law. Civil Code, §§ 1120, 1121. The Circuit Court of Appeals on the other hand assumed that the bond was only for the result at the end of three years.

After some hesitation we have come to the conclusion that the court was right. It is true that the bond is to be read in connection with the original ordinance and that the latter contained terms that were not complied with. But the ordinance only required a bond for the full completion of the work within three years and in accordance with the conditions therein contained and the plans. Section 34. In the ordinance the only condition properly so called, the only fact that warranted a revocation of the grant apart from the general power to repeal, was by § 16 a failure to have the whole railway in operation as required by § 17. There was no forfeiture for falling short of the requirements in §§ 15 and 16 as to the progress to be made in one and two years. The bond in like manner has for its principal condition the completion of the work within

three years. It is true that the completion was to be in accordance with the terms contained in the ordinance, but this clause cannot mean that if the road and works were in satisfactory operation within three years the obligee could recur to the history of events and, if it found that some item was not finished within the time allowed for it, could set up that fact as a breach and, by its interpretation of Porto Rican law, recover the whole penalty of the bond. The subordinate requirements were simply means to an end, and if the end was reached their importance disappeared. The very contentions of the plaintiff as to the liability incurred upon any breach are arguments against supposing that such incidental failures to be on time had such a consequence attached.

There is a further provision for the principal performing, 'within the said period of three (3) years, all other terms and conditions in said ordinance required to be performed by the principal within the said period.' This perhaps affords the plaintiff its strongest argument. But this is a residuary clause to cover matters that may have escaped consideration. The building of the road and works already have been dealt with, and this clause as to 'other' terms hardly can be supposed to have reference to them. If it does, however, it would seem to us that the limitation of time should be construed as looking to the end of the three years and allowing that period, rather than distributively and as meaning from time to time during three years. The same considerations that apply to the construction of the principal condition apply to this, and it appears to us that the provision for the cancellation of the bond upon certificate showing the completion of the work, 'and upon the full compliance with the terms of this ordinance to the satisfaction of the Executive Council' is not enough to change what we understand to be the import of the instrument upon its face. Finally the proviso that no extension of the time or times limited for

the completion of the work 'or any part thereof' shall discharge the surety at most merely recognizes that the principal by accepting the ordinance contracted to do the parts of the work as required, as well as the whole, and with natural caution saves the rights of the obligee against the surety in case of any extension of time, a matter that obligees have learned to fear.

If our construction of the bond is right it does not need much argument to show that the plaintiff is not entitled to recover, seeing that within three years it took the franchise back. It was said at the bar, though not admitted, that the principal had given up work. But there had been no repudiation of the contract, and the plaintiff could not accelerate the forfeiture simply on the ground that it was likely to come about. If, within the time allowed for performance the plaintiff made performance impossible, it is unimaginable that any civilized system of law would allow it to recover upon the bond for a failure to perform. 2 Bl. Comm. 340, 341. United States v. Arredondo, 6 Pet. 691, 745, 746.

Judgment affirmed.

CRENSHAW v. STATE OF ARKANSAS.

GANNAWAY v. SAME.

ERROR TO THE SUPREME COURT OF THE STATE OF ARKANSAS. Nos. 127, 128. Argued January 20, 21, 1913.-Decided February 24, 1913.

The negotiation of sales of goods which are in another State, for the purpose of introducing them in the State in which the negotiation is made, is interstate commerce. Robbins v. Shelby County Taxing District, 120 U. S. 489.

The police power of a State cannot obstruct foreign or interstate

Argument for Plaintiff in Error.

227 U. S.

commerce beyond the necessity for its exercise; nor can objects not within its scope be secured under color of the police power at the expense of the protection afforded by the Federal Constitution. Railroad Co. v. Husen, 95 U. S. 465.

While a tax on peddlers who sell and forthwith deliver goods is within the police power of the State, a tax on one who travels and solicits orders for goods to be shipped from without the State is a burden on interstate commerce and unconstitutional. Emert v. Missouri, 156 U. S. 296, distinguished.

Peddlers, at common law, and under those statutes regulating them which have been sustained, are such as travel from place to place selling goods carried with them, and not such as take orders for delivery of goods to be shipped in the course of commerce.

This court in dealing with rights created and conserved by the Federal Constitution looks to the substance of things and not the names by which they are labeled.

A State cannot, by defining a business subject to its own police power as including a class which is not subject to that power, deprive such class of rights protected by the Federal Constitution.

A state statute, imposing a license on those who solicit orders, from samples which they do not sell, of articles to be shipped from another State and which are afterwards delivered to the purchaser by the manufacturer, is an unconstitutional burden on interstate commerce beyond the police power of the State, and cannot be justified as a license tax on peddlers even though the state statute defines the persons soliciting the orders as peddlers; and so held as to the law of Arkansas of April 1, 1909, regulating the sale of certain specified articles within the State.

95 Arkansas, 464, reversed.

THE facts, which involve the constitutionality under the commerce clause of the Federal Constitution of a law of the State of Arkansas imposing a license on persons making sales within that State as applied to articles delivered from other States, are stated in the opinion.

Mr. J. Merrick Moore for plaintiff in error:

1

The act of Arkansas of 1909 in so far as it applies to the business engaged in by plaintiff in error is an unauthorized

1 See also argument for plaintiff in error in Rogers v. Arkansas, post, p. 402.

227 U.S.

Argument for Defendants in Error.

regulation of interstate commerce, and as such is in conflict with Art. I, § 8, of the Constitution of the United States. Brown v. Maryland, 12 Wheat. 419; Robbins v. Shelby Co. Taxing Dist., 120 U. S. 489; Leloup v. Port of Mobile, 127 U. S. 640; Asher v. Texas, 128 U. S. 129; Leisy v. Hardin, 135 U. S. 100; Brennan v. Titusville, 153 U. S. 289; Stockard v. Morgan, 183 U. S. 27; Caldwell v. North Carolina, 187 U. S. 632; Rearick v. Pennsylvania, 203 U. S. 507; Dozier v. Alabama, 218 U. S. 124.

It is immaterial whether the act of Arkansas of 1909 be intended as a regulation of peddling, and not as a regulation or license upon soliciting orders; or whether it be regarded as a police or a revenue measure. Brown v. Maryland, 12 Wheat. 419, 444; Robbins v. Shelby Co. Taxing Dist., 120 U. S. 489; Leloup v. Port of Mobile, 127 U. S. 640; Brennan v. Titusville, 153 U. S. 289; West. Un. Tel. Co. v. State, 82 Arkansas, 314, 315; Welton v. Missouri, 91 U. S. 275; Crutcher v. Kentucky, 141 U. S. 47.

It is immaterial whether the contract of sale of the goods ordered be executed in the State where the purchaser resides, or in the State from which the goods are shipped; and it is immaterial where title to the goods passes. Rearick v. Pennsylvania, 203 U. S. 507; Dozier v. Alabama, 218 U. S. 124; Caldwell v. North Carolina, 187 U. S. 632; Brennan v. Titusville, 153 U. S. 289.

Mr. William H. Rector, with whom Mr. Hal L. Norwood, Attorney General of Arkansas, Mr. T. M. Mehaffy and Mr. Charles C. Reid were on the brief, for defendants in

The Supreme Court of Arkansas has construed the act of 1909 as an exercise of the police power inherent in the State-that construction is conclusive upon this court. Barnhill v. State, 144 S. W. Rep. (Ark.) 211; Pabst Brew

1See also abstract of argument in Rogers v. Arkansas, post, p. 405.