172 Mass. 154 | Mass. | 1898
This is a suit by a Pennsylvania corporation to recover a debt for goods sold and delivered here. The only defence is a discharge in insolvency under our statutes, which of course commonly is no defence at all. This was reaffirmed unanimously in 1890, after full consideration of the objections now urged, and it was decided, also, not for the first time, that the general language' of the insolvent law was not intended to affect access to Massachusetts courts by a local rule of procedure unless the substantive right was barred by the discharge. Phoenix National Bank v. Batcheller, 151 Mass. 589. The grounds urged for an exception in the present case are that the
We are of opinion that these facts are not enough to bring the plaintiff under the operation of the State insolvent law. It is settled that doing business here does not have that effect upon a citizen or corporation of another State. Guernsey v. Wood, 130 Mass. 503. Regina Flour Mill Co. v. Holmes, 156 Mass. 11. It is not pointed out what the license, whether valid or void, has to do with the matter, and we do not perceive that complying with the laws concerning foreign corporations ought to have any greater effect. We think it plain that the words just quoted from St. 1884, c. 330, § 1, do not mean that, by appointing the commissioner of corporations their attorney, foreign corporations agree not only that publication of notice in insolvency proceedings shall have the effect of personal service upon them in an action, but also that, as a result, they shall be subject to the jurisdiction of the State insolvency proceedings so as to be bound by a discharge.
The most that could be deduced from the appointment would be that, if on other grounds a foreign corporation were subject to the operation of the insolvent law, publication of notice should have the same effect upon it as upon other creditors in making it a party to the proceedings. But we do not suppose that it would be suggested that a natural person, a creditor who was a citizen of another State, lost his immunity and became a party to the proceedings merely by his accidental presence in the Commonwealth at the moment when the notice appeared. Olivieri v. Atkinson, 168 Mass. 28. No greater direct effect than the actual presence of a natural person can be attributed to the presence of an attorney authorized to receive service of process. Furthermore, we doubt whether the
The independent ground on which it is urged that the plaintiff is subject to the insolvent law in the present case is that the plaintiff is domesticated in this State, as shown by the facts above recited, of which the appointment of an attorney is only one. The word “ domesticated,” which was used in the argument for the defendant, presents no definite legal conception which has any bearing upon the case. We presume that it was intended to convey in a conciliatory form the notion that the plaintiff was domiciled here, —“ resident,” in the language of Pub. Sts. c. 157, § 81, — and therefore barred by the language and legal operation of the act. It could not be contended that the corporation was a citizen of Massachusetts. In such sense as it is a citizen of any State, it is a citizen of the State which creates it and of no other. But there are even greater objections to a double domicil than there are to double citizenship. Under the law as it has been, a man might find himself owing a double allegiance without any choice of his own. But domicil, at least for any given purpose, is single by its essence. Dicey, Confl. of Laws, 95, A corporation does not differ from a natural person in this respect. If any person, natural or artificial, as a result of choice or on technical grounds of birth or creation, has a domicil in one place, it cannot have one elsewhere, because what the law means by domicil is the one technically pre-eminent headquarters, which, as a result either of fact or of fiction, every person is compelled to have in order that by aid of it certain rights and duties which have been attached to it by the law may be determined. It is
Judgment for the plaintiff affirmed.
The clefendant, who is and was a citizen of Massachusetts, filed a voluntary petition in insolvency in the Court of Insolvency for the county of Suffolk, on which he was adjudged an insolvent debtor, and, due proceedings being had, he received his discharge. The plaintiff is a corporation organized under the laws of Pennsylvania; its principal offices are in Philadelphia, and it manufactures and sells malt liquors. It has complied with the statutes of this Commonwealth regulating foreign corporations having a usual place of business in the Commonwealth, and it has an office and store-room in Boston, which it hires in its own name, where it sells its products at wholesale. It hires an agent, styled a manager, a bookkeeper, and delivery men for the conduct of its business in Boston, and it owns there a complete set of office furniture and horses and wagons sufficient for the delivery of the goods which it sells in Boston. All these employees reside in this Commonwealth. It received from the board of police of the city of Boston a license in its name, of the fourth class, to sell intoxicating liquors in that city as a wholesale dealer.
The defendant ordered of the plaintiff, at its office in Boston, beer and ale, which were delivered to him in Boston from the
There is no doubt that the words of the statutes relating to discharges in insolvency, as well as the words of the discharge itself, purport to make the discharge pleaded in the present action a bar to the action. Section 81 of the Pub. Sts. c. 157, provides that the debtor upon obtaining his discharge shall be absolutely discharged from all provable debts founded “ on any contract made by him subsequently to the last day of July in the year eighteen hundred and thirty-eight, and while an inhabitant of this State, if made within this State, to be performed within the same, or due to any person resident therein at the time of the first publication of the notice of the issuing of the warrant.” The contract sued on was made while the defendant was an inhabitant of this State, and was made within the State to be performed within the State, and on the part of the plaintiff was performed within the State; and therefore it is exactly within the terms of the statutes. Whether or not the debt is due to a person resident within this State at the time of the first publication of the notice may depend upon the question whether the plaintiff corporation had a domicil within the State.
If our statutes relating to insolvency are constitutional and valid statutes, the courts of this State must enforce them. If they are in violation of the Constitution of the United States, in its application to the case, to that extent they are void. Whatever may be the rule of comity adopted by other courts in enforcing our statutes, the courts of Massachusetts must enforce the statutes of Massachusetts according to their meaning, if they are constitutional and valid statutes.
There is no contention that our statutes relating to insolvency are in violation of the Constitution of Massachusetts. The contention is that, in their application to creditors who are citizens of other States than Massachusetts, they are in violation of the Constitution of the United States. Whether the courts of other
This difficulty has often been noticed. In Marsh v. Putnam, 3 Gray, 551, Mr. Justice Thomas, speaking for this court, in carefully reviewing the decisions of the Supreme Court of the United States up to the time of the decision, says: “ When, after the most mature consideration, it has been settled by the appropriate tribunal, first, that the power given to Congress to pass bankrupt laws is not exclusive, and that, when Congress does not exercise the power, the States may; and secondly, that the fair and ordinary exercise of that power, by a State law which operates only upon contracts to be made after the law takes effect, does not, within the meaning of the Constitution of the United States, impair the obligation of contracts, I have never been able to see any conflict between our insolvent acts, taken in their full force, and any provision of the Constitution of the United States. So far, however, as the question has been settled by the decisions of the Supreme Court of the United States, our judgment is concluded.” He also says: “In this state of the opinions of that tribunal to which, on these subjects, we look for guidance, we know of no safe rule but stare decisis, and yet not go beyond the precise limits of the decisions.” See Phoenix National Bank v. Batcheller, 151 Mass. 589.
The principal decisions of the Supreme Court of the United States on this subject, since those considered in Marsh v. Putnam, are Baldwin v. Hale, 1 Wall. 223; Baldwin v. Bank of Newbury, 1 Wall. 234; Gilman v. Lockwood, 4 Wall. 409; and Denny v. Bennett, 128 U. S. 489.
Baldwin v. Hale was a suit brought in the Circuit Court of
Gilman v. Lockwood was a suit brought in the Circuit Court of the United States for the District of Wisconsin. The conclusion of the opinion is as follows: “ State legislatures may pass insolvent laws, provided there be no act of Congress establishing a uniform system of bankruptcy conflicting with their provisions, and provided that the law itself be so framed that it does not impair the obligation of contracts. Certificates of discharge, however, granted under such a law, cannot be pleaded in bar of an action brought by a citizen of another State in the courts of the United States, or of any other State than that where the discharge was obtained, unless it appear that the plaintiff proved his debt against the defendant’s estate in insolvency, or in some manner became a party to the proceedings. Insolvent laws of one State cannot discharge the contracts of citizens of other States; because such laws have no extraterritorial operation, and consequently the tribunal sitting under them, unless in cases where a citizen of such other State voluntarily becomes a party to the proceedings, has no jurisdiction of the case.”
In Denny v. Bennett, 128 U. S. 489, 497, the opinion in Gilman v. Lockwood is quoted, and it is said to be a clear and accurate statement of the doctrine of the preceding cases. The court there say: “ Any one who will take the trouble to examine all
In Stoddard v. Sarrington, 100 Mass. 87, decided in 1868, after the decision of the Supreme Court of the United States in Gilman v. Lockwood, this court held that, if a contract is made between two citizens of this State, within the State, and one of them afterwards removes therefrom and becomes a citizen of another State, and the other then obtains in this State, where he continues to reside, a discharge under the insolvent laws which were in force when the contract was made, the discharge is a bar to an action against him on the contract. The cour-t say: “ Regret has been frequently expressed by judges of the courts of the United States, as well as by those of the several States, that with all the learning and ability which have been bestowed upon the discussion it has not been found practicable to place the decisions on this important subject upon some clear and intelligible basis of principle. But the reasons given by different judges for coming to the same conclusions have been so diverse, and the grounds assigned for judgments not certainly repugnant to each other have been sometimes so apparently inconsistent, that it is difficult to do more than follow adjudged cases in their liberal application, without attempting to gather from them a rule which affords a sure solution of new questions.” The court also say: “ The suggestion that the power of a State over the contracts of its citizens is limited by the power to make them parties to the proceedings in insolvency, does not seem to us well founded, because we think that the effect of the insolvent law
The doctrine that the statutes of a State, ex proprio vigore, have no extraterritorial force is a doctrine of the common law, and not a provision of the Constitution of the United States. The decision in Ogden v. Saunders was made forty years before the adoption of the Fourteenth Amendment of the Constitution of the United States, and was not put upon the principle declared in Pennoyer v. Keff, 95 U. S. 714. A discharge under the bankruptcy laws of England is held in the courts of England to be a discharge of debts due to citizens or subjects of other countries, without any regard to the question whether the courts of England have any jurisdiction over the foreign creditors whereby they could render personal judgments against them. See Dicey, Confi. Laws, 448 et seq.; Ellis v. M'Henry, L. R. 6 C. P. 228. It is probable that a discharge under the bankruptcy laws of the United States which purported to discharge the debtor from all debts provable against his estate would be held a bar to an action in the courts of this country by a nonresident alien on a debt due him which could have been proved against the estate. Bump, Bankruptcy, (11th ed.) 713.
Without considering whether this court in any event would follow the decision of the Supreme Court of the United States in Barrow Steamship Co. v. Kane, 170 U. S. 100, it appears that the plaintiff corporation had appointed the commissioner of corporations to be its true and lawful attorney, upon whom all legal processes in any action or proceeding against it might have been served, pursuant to St. 1884, c. 330, and the amendments thereof, so that a personal judgment at the time of the institution of the proceedings in insolvency could have been rendered against it in the courts of Massachusetts which would be recognized as valid everywhere, and it also could have become or been made an insolvent debtor under our statutes relating to insolvency. St. 1890, c. 321.
It is evident that in recent years this court, in its anxiety to
I think that this court ought to uphold the validity of the discharge, in the present case, until the Supreme Court of the United States has decided to the contrary.
The question, of course, becomes of little importance when there are bankruptcy laws of the United States in force; but such laws have been in force only for short periods of time, and the insolvency 'laws of Massachusetts are not repealed, but only suspended, by the bankruptcy laws of the United States.