81 P. 58 | Idaho | 1905
— The respondent in this action is a foreign corporation, organized and doing business under the laws of the state of Wisconsin, and is engaged in the manufacture of threshing-machines and farm machinery and selling the same in the various states of the Union. On the twenty-sixth day of June, 1903, the defendant, who is the appellant here, gave an order to one M. J. Shields of Moscow, Idaho, for a threshing-machine, which order was taken on blanks furnished by the respondent corporation to said Shields, and it is provided in said order that the same is taken subject to the approval of said corporation. It appears that said order was accepted and the threshing-machine and other machinery connected
Counsel for appellant has failed to comply with that provision of paragraph 1 of rule 6 of the rules of this court which requires the brief to contain a distinct enumeration of the several errors relied on, but it is clear from his brief that his only contention is, that the plaintiff being a foreign corporation and not having complied with the provisions of the act of the legislature above cited, in not filing its articles of incorporation as thereb required and designating an agent upon whom service of process may be made, cannot maintain this action for that reason. The act referred to is an act amending section 2653 of the Revised Statutes, and was approved March 10, 1903, and went into effect sixty days thereafter, which was prior to the date of the contract referred to in this action. Said act provides, among other things, that a foreign corporation, before “doing business” in this state, must file its articles of incorporation with the county recorder
The only question presented for decision is whether under the facts of this case the respondent was “doing business in this state” according to the meaning of that phrase as used in said act, and if it is not, that is the end of this case.
It is contended by counsel for appellant that although the respondent manufactured its machinery in the state of Wisconsin and simply took orders as above stated, for the sale of such machinery within the state of Idaho, that it comes within the provisions of said act and cannot maintain this action. We cannot agree with counsel in that contention. The legislature never intended that that law should apply to foreign corporations except those actually engaged in business within the state, and excludes interstate commerce. And it was not intended to apply to interstate commerce between corporations or citizens of other states and citizens or corporations of this state. In Gates Iron Works v. Cohen, 7 Colo. App. 341, 43 Pac. 667, under a law similar to the one in question, it was held that a single sale of machinery within the state by a foreign corporation is not within a statute prohibiting such corporations “doing business” in the state before complying with certain conditions, such as filing articles of incorporation. (Babbitt v. Field, 6 Ariz. 6, 52 Pac. 775.) And in Tallapoosa Lumber Co. v. Holbert, 5 App. Div. 559, 39 N. Y. Supp. 432, it was held that the procuring in New York of orders for goods by traveling agents of a foreign corporation, which orders are to be transmitted to the home office of the corporation for approval, after which the goods are to be shipped from such office to the buyer in New York, does not constitute “doing business” within the law requiring foreign corporations to obtain a certificate of authority
So far as the transaction in the case at bar is concerned, it was simply and purely interstate commerce. The machine was manufactured in Wisconsin and shipped direct from the manufactory without the state as per said order to the appellant within the state of Idaho, or to M. J. Shields, to be delivered to the appellant. Interstate commerce is defined as follows in 17 American and English Encyclopedia of' Law, second edition, page 61: “Interstate commerce or commerce among the several states of the Union is commerce which concerns more states than one. Strictly considered, it consists in intercourse and traffic, including in these terms navigation and the transportation and transit of persons and property, as well as the purchase, sale and exchange of commodities.” (See, also, Ferry Co. v. Pennsylvania, 114 U. S. 196, 5 Sup. Ct. Rep. 826, 29 L. ed. 159.) As stated in Norfolk R. Co. v. Pennsylvania, 136 U. S. 114, 10 Sup. Ct. Rep. 958, 34 L. ed. 394: “It is settled by numerous decisions of this court that a state cannot, under the guise of a license tax, exclude from its jurisdiction a foreign corporation engaged in interstate commerce or impose any burdens upon such commerce within its limits.” That rule is too well settled to require further citation of authorities.
Cooper Mfg. Co. v. Ferguson, 113 U. S. 727, 5 Sup. Ct. Rep. 729, 28 L. ed. 1137, was a case of a contract made in Colorado by an Ohio corporation to build and deliver in Colo
If the legislature intended to apply the provisions of the law under consideration to facts such as those involved in the ease at bar, it must be held unconstitutional as in violation of the commerce clause of the federal constitution. But we do not think the legislature intended to have it applied to transactions such as those involved in the case at bar; in other, words, interstate commerce. A state cannot require a foreign corporation engaged in interstate commerce to designate an agerit or have a place of business within the state. It is said in 17 American and English Encyclopedia of Law, second edition, pages 106, 107, as follows: “The state cannot impose conditions or limitations upon the right of a foreign corporation to make contracts in the state for carrying on commerce between the states.” And again it says: “A state statute providing that no foreign corporation doing business in the state can maintain any action with reference to such' business unless it has filed a copy of its charter, paid the required fees and secured a certificate, is void as an interference with interstate commerce so far as the business of a foreign corporation constitutes interstate commerce. Interstate commerce may be carried on and sales negotiated, either by agents within the state or commercial agents or drummers, or by correspondence.” One of the cases principally relied upon by the appellant is Diamond Glue Co. v. United States Glue Co., 187 U. S. 611, 23 Sup. Ct. Rep. 206, 47 L. ed. 328. In that case the plaintiff was an Illinois cor
Counsel for appellant have cited many eases, and we have examined the most of them and find that they contain some peculiar features which takes them out of the rule applicable to interstate commerce, and are, therefore, held to be doing business within the meaning of the law of those particular states. Many of them are cases not involving the question of interstate commerce, such as writing insurance, which is held not to be interstate commerce. (See Paul v. Virginia, 8 Wall. 168, 19 L. ed. 357.)
The case of Chattanooga Nat. Bldg. etc. Assn. v. Denson, 189 U. S. 408, 23 Sup. Ct. Rep. 630, 47 L. ed. 871, cited by appellant, is a ease for the loan of money, and does not involve the question of interstate commerce and is not applicable to the case at bar. The law in question only applies to corporations that are actually doing or conducting business within the state, and was not intended to apply to corporations engaged in “interstate commerce.” The supreme court of the United States by numerous decisions has defined the term “interstate commerce,” and any state legislative act that hinders or interferes with or places restrictions upon sueh commerce is in violation of the commerce clause of the federal constitution. No restriction can be imposed upon interstate commerce by a state. That power is reserved to Congress.