113 Ky. 32 | Ky. Ct. App. | 1902
Lead Opinion
Oinxrox ok the corRT by
Reversing.
This is a penal action, brought by the Commonwealth of Kentucky against the appellee, Read Phosphate Company, a corporation organized in the State of West Virginia, seeking to recover the penalty imposed by statute for engaging in business in this State without filing in the office of the Secretary of State1 a statement, as required by section 571, Kentucky Statutes, giving tbe location of its office in this State, and' ilie name of an officer or agent thereat upon whom process might be served; the petition averring that ihe appellee had engaged in business in this State without having filed such statement. Appellee, by answer, admitted that it was a corporation created by the'laws of West Virginia ; denied it had engaged in business in this State as alleged, or at all; and denied it had failed to file tne statement required by law to be filed with the Secretary of State. In a separate paragraph the appellee pleaded facts which showed that it simply took orders for fertilizin' by and through a traveling salesman, and that the'fertilizer was shipped to
We are informed by counsel in brief that the reason given by the court for directing a verdict, for defendant was that the State had failed to prove that appellee had failed to fih' in the office of the Secretary of State a. statement as required by law, and that the burden of proving this failure was on'the State. From the bill of exceptions in this record if appears that there was no proof as to the filing or failure to file this statement by either party, and although the / president of appellee company was sworn as a witness Ik; was not asked about the statement, whether it had been filed or not. If this failure on the part of the appellant, plaintiff below, to prove a failure to file the statement, was the reason that moved the trial court to give the peremptory instruction, there was error. The rule has long been settled in this State that in indictments for retailing spirituous liquors without a license the case was made out when the sale and venue was shown, and that the accused must show a license, if such he has. In Haskill v. Com., 3 B. Mon., 342, decided in 1842, the court,said: “The presentment or indictment presents at once the issue as to the license, and, if the person charged is not without it, he is immediately
Counsel for appellee .seriously contends that the statute requiring this statement to 'be filed is unconstitutional and void, being in contravention of the federal Constitution. The statute, (section 57.1) reads: “All corporations except foreign insurance companies formed under the laws of this or any other State and carrying on any business in this State, shall at all times have one or more known places of business in this State, and an authorized agent or agents thereat upon whom process can be served; and it shall be unlawful for any corporation to carry on any business in this State, until it shall have filed in the office of the Secretary of State a statement, signed by its president or secretary, giving the location of its office or offices in this State, and the name or names of its agent or agents thereat upon
As to the question whether a corporation is engaged in business within this State or is engaged in interstate commerce, that depends entirely on the facts proven. If, from the facts proven, it be'determined tfliat a corporation has transacted, carried on, or conducted any business in this State, that corporation will be liable to the penalty if it has failed to file the statement required. However, if the corporation has transacted, carried on, or conducted only i.itersrate commerce business it would not be liable, for such corporation is not subject to the statute. The question as to whether the business is one or the other is always one of fact to be determined by the proper tribunal. In view of another trial, we refrain from a discussion of the evidence in any way; wherefore we conclude that the trial court-erred in giving a peremptory instruction to the jury to find for the defendant, but, on the contrary, should have submitted to rbe jury the issues presented under tlie proof introduced.
For the reasons indicated, the judgment is reversed, and cause remanded for a new trial, and for further proceedings consistent herewith.
Concurrence Opinion
concurring ojiinion:
If the facts should .show merely that appellee had, by its traveling salesman, or by means of postal or telegraph or telephone communication, sold merchandise, or its pro