*1 PLAINTIFF-RESPONDENT, COONS, v. AMERICAN WALTER P. CORPORATION, AL., CO., INC., DE A ET MOTOR HONDA COMPANY, FENDANTS, LTD. OF JA AND HONDA MOTOR DEFENDANT-APPELLANT, PAN, CORPORATION, AND AT A JERSEY, NEW INTERVENOR-RE TORNEY GENERAL OF SPONDENT. February August
Argued 1983 Decided 1983. *2 I. argued John Lisowski cause appellant (Morgan, Melhuish, Arvidson, Lisowski, Monaghan, Abrutyn & attorneys).
Robert H. Jaffe argued respondent the cause for (Jaffe & Schlesinger, attorneys; Jaffe, H. Schlesinger, Robert Howard G. DiMare, Jr., brief). and Louis A. on the Haushalter, Harry General, Deputy Attorney argued for intervenor-respondent (Irwin Kimmelman, cause I. Attorney attorney; General of Jersey, Giancia, James J. Assistant counsel; Attorney General, of Harry Haushalter and Adrienne Isacoff, General, L. Deputy Attorney brief). on the Greenberger, I. Michael a member of the District of Columbia bar, the cause for amicus argued Mining curiae Brinco Limited (Lum, Tompkins, attorneys). Biunno & Jr., Tierney, M.
Raymond submitted brief on behalf of Fisher, amicus curiae G.D. (Shanley Searle & Co. & attorneys). Walter R. Cohn a brief submitted on behalf of amici curiae (Walter Cohn, Walter Cohn and Susan Cohn R. attorney; Thom- Cohn, brief). as E. on the A.
Philip Tortoreti submitted a on brief behalf of amicus Asch, (Karl Asch, curiae Karl Esq., attorney). opinion Court was delivered
CLIFFORD, J. *3 appeal
This addresses the interpretation and in the validity, Clause, context of the 2A:14-22, Commerce of N.J.S.A. which tolls the running applicable statute of limitations in against foreign actions that “represented” are not in this state. Before reaching question constitutional we must determine how a foreign corporation bemay “represented” in Jersey New in order to tolling provision. avoid the We hold that a foreign corporation must obtain a certificate to do busi- state, 2A:13-4, ness in this under in N.J.S.A. order to achieve “representation” in the context of Further, N.J.S.A. 2A:14-22. we hold 2A:14-22 unconstitutionally N.J.S.A. burdens inter- state by requiring commerce a foreign corporation engaged in exclusively interstate commerce to obtain a certificate to do business in order to gain advantage of the statute of limitations.
I against commenced this suit in 1978 defendant Plaintiff Hon- Co., da (Honda) Motor Ltd. and its wholly-owned American distributor, Co., (American American Honda Motor Inc. Honda). The damages personal injuries action seeks for consequen- and tial by 30, 1974, losses occasioned an accident on October when
plaintiff by was thrown from Honda motorcycle manufactured and American At all by distributed Honda. relevant times corporation American Honda was a California that maintained contrast, Jersey. In Japanese facilities New Honda is a been has never authorized to do business in this or other state carries on any no activities here or elsewhere in the United States.
Because plaintiff years had started suit four after the acci dent, both Honda and American raised Honda as a defense the actions, two-year statute of limitations for personal injury N.J. 2A:14-1, summary judgment. for S.A. and moved trial court but granted American Honda’s motion denied that of Honda, ruling two-year that the had statute limitations been by tolled 2A:14-22 because was a corpo N.J.S.A. Honda “represented” ration person that was not addition, whom could be trial court served.1 held that sufficient there were bases the exercise of in personam jurisdiction against Honda and that the statute protection did not violate the clause of the equal federal Consti tution.
1 2A: 14-22 relevant provides part: against If whom any there is the causes action person * * * resident is not a of this state when such cause of action specified accrues, or removes from this state after the accrual and before thereof any corporation if of the times limited in expiration sections, said state, corporate surety organized against under the laws of this action, represented whom there is such a cause of state is not in this *4 any person may original process or whom or officer summons other served, when such cause of action or at before accrues time the during or which the time times of the so limited, times such expiration residing such state or is not within this person surety corporate surety represented so this not be within state shall periods computed part as of the within which such action is time an by required the section. to be commenced person entitled to any such action commence the same accrual of may therefor, after the the cause within the of time limited therefor said exclusive of period by section, (emphasis such time or times or nonresidence add- or nonrepresentation ed).
311 The Appellate Division affirmed the judgment of the trial Co., Ltd., court. Japan, Coons Honda Motor 176 N.J.Super. (1980). 575 After this Court denied cross-motions for leave to appeal, parties Court, review the sought by Supreme which consented to hear only appeal. Honda’s That Court vacated the judgment below and Appellate remanded to the Division. Hon- Co., Coons, da 996, 1625, Motor Ltd. v. 455 U.S. 71 S.Ct. L.Ed.2d 857 we Thereafter certified the cause on our own motion. R. 2:12-1. appeal may
That this
be set in
proper
its
context we digress
briefly from this chronological recitation to focus on the action
of the Supreme
purpose
Court. The
of that Court’s remand was
afford the New
court opportunity for reconsideration
light
of the Supreme Court’s decision in G.D. Searle Co. v.
Cohn,
1137,
(1982),
455 U.S.
L.Ed.2d 250
a case
Searle,
raising precisely the same issue as is
presented here.
the Supreme Court held that
2A:14-22
survived equal
protection and due process challenges. The Court did not re-
however,
solve the commerce
challenge,
stating
clause
that the
issue
by
ambiguity
was “clouded
in state law”
concerning
requirement
representation
under the statute.2 Id. at
S.Ct. at
L.Ed.2d at 259. Justice Blackmun wrote
ambiguity
following language
was created
in a
opinion
Eng’g
footnote in this Court’s
in Velmohos v. Maren
Corp.,
(1980),
dissented from so much of Searle as discussed the Commerce
Clause. He found the Velmohos
unambiguous,
footnote
stating
that it
“simply
was
a neutral observation that says nothing as to
the means of
designation
under New Jersey law.”
416,102
atU.S.
However unfortunate our failure clearly to articulate our footnote, position was, in the Velmohos our intention as accu- Powell, rately perceived by Justice to make no more than a “neutral observation.” At least that was our intention as cur- rently recalled by three members who vote with opinion this and case, who also sat-in the Velmohos appears as to the other majority member to have been the intention of the Velmohos Court. That we entirely were not successful expressing that intention is now all painfully apparent. too Although may it “clear” to our dissenting colleagues what it was that the Velmo- mean, hos footnote was meant to it should suffice to point out that it was not at all majority Court, clear to a Supreme say nothing of the fact .that five of us who participated in agree upon Velmohoscannot now what it was we were saying in footnote 10. And what we said there takes on considerable significance in this case.
II We are called to examine suggested repre- forms of sentation that would a permit foreign corporation to avoid the tolling statute and avail itself of the statute of limitations. The parties discuss three procedures by which a foreign corporation can gain representation: (1) obtaining a certificate of authority state; to transact (2) business in the merely designating an agent without filing notice thereof government with a agency or official; (3) filing Secretary with the designat- State notice ing representative accept service of process.
It indisputable that a gain can benefit of the statute of limitations receiving certificate of *6 business authority to do under N.J.S.A. 14A:13-4.3 issue is whether another statutorily-authorized procedure exists that representation would establish the for limited of purpose avoid ing the effect of 2A: 14-22. N.J.S.A. to the language
Plaintiff looks of R. 4:4-4(c)(l) support as for its contention that corporations need only appoint an agent process for service of in Jersey, register rather than to do here. That business Rule substantially tracks the lan- guage statutes, of -44, the former R.S. 2:26-43 to which were amended in to provide for service on corporations.4 Not- amendments, withstanding statutory these legislature when the in 1949 the tolling provide amended statute to exemption the for state, corporations in it represented the chose not incorporate the concept “long-arm” of jurisdiction that had been sanctioned the by Court in Supreme International Washington, Shoe Co. v. foreign corporation procures generally A such a certificate is then Jersey, required 14A:13-4(l)(d); amenable to suit in New see N.J.S.A. is registered agent office, 14A:4-1, notify maintain a and N.J.S.A. and the Secretary thereof, any changes 14A:4-3; of of State N.J.S.A. must file annual reports, 14A:4-5; tax, subject N.J.S.A. and is to an annual franchise 54:10A-2. 4(c)(l),
4Under R. service made shall be as follows: 4:4 - Upon by foreign corporation, serving, [general] a domestic or in the * * *, officer, director, trustee, managing general manner either an or or agent; any person appointment by or authorized law to or receive process corporation; person service on of behalf of the or registered corporation charge office of the thereof. If service cannot any upon may upon person foregoing, be made of the then it be made place principal corporation charge at the of State in business of the in this thereof, place State, upon any if is or there no of business in this then corporation acting discharge servant of the within this State of his appears by plaintiffs attorney any person duties. If it of affidavit of or having knowledge diligent inquiry after the facts that and effort personal foregoing service cannot be made and if the then, foreign corporation, due is consistent with law, may mail, by mailing, by registered service be made certified requested, receipt copy complaint return of the summons and to a service, registered business, agent principal place or to its to its registered office. (1945). “Long-arm” 326 U.S. 90 L.Ed.2d adopted was not until then over service infra at 315. R.R. R. 4:4-4(d) (now 4:4-4(c)(l)). See discussion of the Rule it cursory Even a examination discloses that purpose announcing does not serve the where an purport to be found. It in no wise discusses agent identified can plaintiff An uninformed would be designation agent. of an task of the unknown virtually impossible locating faced with the effect, would, protection lose the appointee addition, to afford. the Rule designed tolling provision an independent designation basis for the provide does not person so merely directs service on accept service —it *7 designated. notice can be provides that a mechanism argues
Plaintiff 1-6(4), part which in relevant as N.J.S.A. in 14A: reads found documents, shall record all Secretary “The of State follows: in affect any way which relate to or excepting reports, annual by law to be required permitted which are corporations, and previously of held the Secretary filed in his office.” The State corporation qualified has to do foreign view that unless a a state, designate regis it be unable to business in the would however, Recently, process.5 tered for service of agent ' contrary posi Attorney has acceded to the General’s Secretary in accordance with N.J.S.A. N.J.S.A. 14A:1-6(4) and tion that 2A:14-22, Secretary file with the of corporation may foreign a filed with the Court —an Supreme opin- for Searle obtained —and 5Counsel determining, effect, ion from the New of State Secretary Jersey designating registration a was the means of 14A:14-1, only N.J.S.A. statute, registered agent reads: for service of process. opinion of be advised that it is the view letter, recent please to your response foreign has to that unless a corporation qualified of State Department designate registered a are unable to they do business in New Jersey, agent for service of process. New Secre- Executive Assistant to the Jersey Letter from Frank Capece, 1981), (Oct. Searle, cited Freis, to James H. State, Esq., tary at 71 L.Ed 2d at 261. U.S. at 102 S.Ct. State a notice designating representative as its agent accept process. service of in the
Implicit Attorney interpretation General’s is the notion that the tolling statute foreign corporations authorizes designate agents without do registering to business in the state. Without foreign such authorization corporations would not able to file notice with the Secretary 14A:1-6(4) under N.J.S.A. because that Secretary statute directs the to record documents required that are filed as or permitted by law. It does not independently authorize filing any documents. Inasmuch as nothing there is in N.J.S.A. 2A:14-22 or other section rule that designation authorizes the agent an without regis tering state, to do business in the we conclude that file Secretary cannot with the desig State notice nating a representative its agent accept as service under 14A:1-6(4).
Plaintiff also
history
contends that
legislative
to the
predecessor of
supports
position
N.J.S.A. 2A:14-22
that a
foreign corporation
register
need not
to do
in the
business
state
in order
designate
for
of process.
service
As
supra
313-14 in
indicated
1949 the
statute was
amended
specifically
the first time
dealt
with
corpo
rate
excepted
defendant. The amendment
from the statute
domestic
foreign corporations
and those
maintain
*8
ing representatives in
Jersey.
Velmohos v.
See
Maren
Eng’g Corp., supra,
judicial construction benefit the statute of limitations. The purpose this bill is to correct that situation. New York it State found to make necessary change a similar in its law in view of recent court decisions. [Statement Accompanying (1949) (quoted 290).] No. 467 in N.J. at Assembly Velmohos, Plaintiff focuses language alluding on the change” “a similar in New York law. change That had been interpreted except from the tolling provision those foreign corporations that had
appointed agents for service process but had not registered to do business in New York.
Although plaintiff asserts that
reference to the New
York amendment evidences intent to allow a foreign corporation
to appoint an
for
process
service of
without registering to
do business in New
it
Jersey,
abundantly
is
clear to us that New
Jersey’s statute was meant to be “similar”
York’s,
to New
Moreover,
“identical.”
we give great weight to the clear ex
pression of legislative intent
found
the first two sentences of
the statement accompanying the
purpose
amendment —the
was
provide
foreign corporations licensed to do business in New
Jersey the benefit of the statute of limitations —in concluding,
as did Justice Powell in his separate opinion
Searle,
“foreign corporations may designate an agent for service of
process only by obtaining a certificate of authority to do busi
ness.” 455
U.S. at
at
Ill Having established the means by which a foreign corporation represents itself in gain order to the benefit of the statute of limitations, we now address the Commerce Clause issue: is interstate commerce unconstitutionally burdened the require- ment that in order to 2A:14-22, avoid the effect of N.J.S.A. foreign corporation qualify must to do business in New Jersey? discusses,
As Professor Tribe in most cases regulation “[s]tate affecting interstate commerce will upheld (a) if the regula- tion rationally is legitimate end, related to a (b) state and 6Significantly, ignores language the dissent the critical simply specific accompanying the statement the 1949 amendment. As the dissent correctly observes, of the amendment purpose was to create a situation of “even footing,” enjoyed 329; however, was to be post domestic equality corporations licensed to do business in the state, not “agents those with, the words of the dissent, in New Jersey.” Id. unambiguous Because our consistent with the interpretation perfectly legislature, declaration of the we fail to that troubles our perceive “irony” dissenting colleagues. Id.
317
regulatory burden imposed
commerce,
on interstate
it,
discrimination against
are outweighed
state interest in
enforcing
regulation.”
Tribe,
L.
American Constitutional
(1978
Law 6-5 at 326
ed.).
Church,
§
See Pike v. Bruce
397 U.S.
137,
844,
90
(1980);
S.Ct.
striking Kentucky down held that the Dahnke-Walker Court obtaining go into the leave another, of one state without may [a] legitimate commerce; and or license of the for all the of such latter, purposes exercise of of the latter which obstructs a burden on the statute state lays privilege 42 at is void the commerce clause. at S.Ct. [257 291, this under U.S. L.Ed. at 109, 244.] terms, to limit its Supreme declining The Court in broad spoke Instead, to the to sue” context. the Court “right decision leaving interstate commerce unfet- importance focused on the of principle case that rise to the applied gives tered. As to this statute whether of the of limitations defense question the denial though corporations impermissibly to unlicensed foreign —even to corporations obtain a license do indirectly those —forces in the business state. to a right
There is no statute of limitations fundamental tolling provision under holding defense. constitutional standard, court rigorous protection the less the Searle equal stated: privilege litigate. of about the [Statutes limitation] represent public policy regarded has as what now a “fundamental”
Their shelter never been is called right right what used to a “natural” He be called individual. may, have the while it but course, exists, pleas protection policy history legislative subject good grace of limitation shows them to be and to be only by large degree legislative control. U.S. at [455 408, relatively quoting 71 L.Ed.2d at Chase Sec. 325 U.S. Donaldson, 304, 314, Corp. (brackets (1948) original).] in 1628,1635-36 65 S.Ct. L.Ed. 1137,1142, broad, control, subject however legislative That must legislature The indi- accomplish constitutional limits. cannot effect, directly; cannot, that which it not do it rectly could exclusively licensure on foreign dealing force gaining otherwise them from preventing interstate commerce the benefit of the of limitations defense. The burden statute imposed thus on interstate commerce unconstitutional. 2A:14-22, statute, is a forced-licensure Therefore, it must be struck down as a violation of provision. retrospec- decision given the Commerce Clause. This should be effect, general in civil cases applied tive consistent with rule ruling a new apply shall to all matters that have not judgment. Snow, reached final See Fox v. 6 N.J.
Reversed. The cause is remanded to Law Division for entry judgment for defendant Honda. O’HERN, JJ.,
SCHREIBER and dissenting. We disagree with the majority’s view that the only way that a foreign corporation may appoint for service of process, and thereby obtain the benefit of limitations, the statute of is to obtain a authority certificate of to transact business *11 State.
We disagree as well with the Supreme Court characterization of footnote 10 of Maren Engineering Corp., Velmohos v. 83 N.J. 282, (1980), 293 n. 10 as “opaque.” See G.D. & v. Searle Co. Cohn, 404, 414,102 1137,1144, 250, 455 71 U.S. S.Ct. 259 L.Ed.2d (1982). It is a majority clear to us that of the VelmohosCourt determined Jersey required that under New law all that is aof foreign corporation obtain the general benefits of our statute of appoint limitations is that it an agent process, for service of not that it the general jurisdiction submit to by the forum obtaining a authority certificate of to do business.
I. 2A:14-22, Velmohoswe upheld provides which the tolling of the respect statutes of limitations with to claims against that foreign corporations represented are “not in this by state any person or officer whom summons or other original process may served.” We held that be the section did not Equal violate the Protection constitutional or Due Process applied Clauses when not “repre subject jurisdiction sented” New but is Jersey, long-arm by service outside the The United Supreme State. States Court Searle, 7,102 holding affirmed this 455 at 412 & n. U.S. S.Ct. 7, 7, at 1143-44 & n. at & n. 71 L.Ed.2d 258 but considered it pass unwise to on the claim of a Commerce Clause violation 320 below and remanded the case to the Circuit Court
raised Searle Appeals argu- to determine whether Commerce Clause 412-14,102 1143-44, ment had merit. Id. at 71 L.Ed.2d S.Ct. Supreme at 258-59. The Court also vacated and remanded in light Velmohos this Court for further consideration 985,102 1605, 71 L.Ed.2d Searle. U.S. S.Ct.
case was settled before reconsideration. carefully
In VelmohosJustice Pashman “that what- observed hardship ever on foreign corporations might by be caused con- exposure tinued to suit can easily by designa- eliminated tion of an for service of within the State.” 83 N.J. at n. majority opines 293 10. It is remarkable that the representation only by by such can be authorized statute and not a voluntary designation, power such as attorney specific provision agreement. in an domestic, process upon corporations, foreign
Service rule, Jersey New is a function of court not of statutes. Under the New of 1947 the Jersey Supreme Constitution Court has rule-making power practice, procedure exclusive over and ad 240, ministration of the Winberry Salisbury, courts. 5 N.J. den., 123, (1950). Thus, cert. 95 L.Ed. U.S. long-arm Long-arm does not have a statute. ser 4:4-4(c)(l) vice pursuant (eff. Sept. 1969) is available to R. (source 4(d)(eff. Sept. 1958)). rule R.R. 4:4—
At the time the New Jersey adopted, Court Rules were first in 1948, the statutes existing governing corporations service on read: 2:26-43. Domestic in actions; or substituted corporations personal personal service of summons. against in Service of a summons a civil action commenced a domestic corpora- delivering in tion of the courts of this State be made a thereof any may copy by managing general agent
to an trustee or a or of the officer, director, corporation leaving dwelling or a thereof at his usual house or of personally, by copy place age abode with some member of his of the of fourteen or competent family years residing delivering over then or a thereof to therein, by copy any person law to authorized or receive service of on behalf of by appointment by process leaving registered the or a thereof at the office of the corporation, by copy charge with in thereof. corporation any person Foreign 2:26-44. corporations. against foreign of a summons a civil Service in action commenced a corpora-
tion made be in the same manner as in is section 2:26-43 of the may provided Statutes for service summons a Revised domestic upon corporation. [L.1948, (emphasis supplied) e. 356 ]. proposed The draft Court Rules included a rule for service upon domestic, corporations, foreign and which closely followed language the repealed statutes, now R.S. 2:26-43 and 44 The specific language of rule was: foreign d. be a or [Service made domestic or may u]pon corporation subject or other to association which suit under partnership unincorporated a recognized serving Paragraph in the manner name, by a, officer, prescribed managing general agent a or in the case of the a or, director or corporation, trustee in the case of the or or, partnership, partner; corporation, any upon serving authorized to or law receive personally any person by appointment freight agent service of or ticket or process, any employed offices in which the venue is or as corporation’s laid; county may 3:4-4(d) (Tentative 1948) (emphasis law.1 supplied)]. Draft [R. provided by It 4(d)(3). was modeled upon Fed.R.Civ.P. Federal Rule 4(d)(3) authorized service within the territorial limits of the state within which the district court is held (3) foreign domestic or other Upon partnership subject association which is to suit under common
unincorporated
name, by
4(d)
1The comment on Rule
provided:
3:4—
(applicable
This rule is
than,
broader
and
R.S. 2:26-43
supplants,
law)
(applicable
chancery)
and 2:29-19
to suits in
which are
dissimi-
quite
foreign
lar in their terms.
It
does
R.S. 2:26-44
supplant
applicable
dealing
R.S. 2:26-44
corporations;
and
with service on domestic
(cf.
14:6-2) dealing
R.S. 2:26-47 to 51
R.S.
by publication;
foreign
with service on
secretary
state with
domestic and
respect
dealing
R.S. 2:26-53 to
with service as
corporations;
58.1
insurance
banks and
R.S.
companies,
others;
49:1-17 relative to the blue
sky law; R.S. 14:13-14 relative to a defunct domestic
The
corporation.
4(d)(3)
follows,
rule
somewhat, Federal Civil Rule
that it omits the
except
last twenty-five words thereof.
language
as
rule
adopted substantially
conformed
Draft,
Tentative
that the
except
associations
provisions
unincorporated
(e),
4(d),
(f) (eff.
became
rules. See R.
partnerships
separate
Sept.
3:4—
1948).
*13
delivering
managing
of the summons and of the
to an
copy
officer,
complaint
agent
general agent,
other
authorized
or
or to
law to
by appointment
by
receive service of
if the
is one authorized
statute to receive
and,
process
mailing
service and the statute
so
also
to the defendant.
requires, by
copy
supplied].
[Emphasis
The federal rule
interpreted
has been
to include designations
made
a party
agreement. Thus,
in an
for example in
Emerson Radio & Phonograph Corp. v. Callander Distrib. Corp.,
F.Supp.
(S.D.N.Y.1953),
Prentice-Hall,
upon
service
Inc.
as one designated in a franchise agreement
accept
“to
in the
name and on behalf of
distributor service of process” was
[the]
held
process
valid
under the federal rule. That court referred to
the consistent practice in New York of recognizing
appoint-
agents
ment of
process,
for service of
citing
Burnstine,
Gilbert v.
255 N.Y.
323 sic aids to construction of statute do not alter plain its mean- ing).2
These precedents form the basis for the interpretation given the tolling by statute the majority. Velmohos Simply put in the case, circumstances of this the manufacturer of the motorcycles could appointed have its local dealer or person distributor as a authorized to receive service process on behalf of the corpora- tion.
The argument
that such an appointment would give
public
no
notice of
representation
the
especially
hollow in the circum-
stances of this case where the motorcycle
purchased
was
directly
by the injured claimant Coons’ cousin from American Honda
Co., Inc.,
Motor
a distributor
for Honda Motor Company, Ltd. of
Co.,
903,
F.Supp.
(D.N.J.1978), rev’d,
2In Cohn v. G.D. Searle &
447
912
(3d Cir.1980), vacated,
404,
1137,
F.2d 801
455 U.S.
102 S.Ct.
The only designate person manufacturer need a whom it receive this process foreign trusts to for it. fashion the manufacturing corporation may expeditiously gain and simply the advantage of the statute from the having of limitations run arises, plaintiffs date the cause of action for claims of who can reasonably expected knowledge designation. be to have of that
II. disagree We the majority also with insofar as it rules that the of Secretary State even now to receive and file power lacks a foreign corporation’s designation agent of process an to receive for the purpose compliance of with N.J.S.A. 2A:14-22. Attorney
The has Secretary General advised the of State that he power accept designation has the such a and relies 14A:1-6(4), provides N.J.S.A. which that: excepting The of State shall record all annual documents, Secretary reports, which relate to or in affect and which are way any corporations, required law to be filed his office.... permitted by Attorney position The General’s is that since 2A:14-22 N.J.S.A. presumes designation by corporation the a foreign repre- of process (as seen, for designa- sentative service of we have such powers tions be may accomplished by attorney), letters of authority Secretary statute constitutes for the of State to record such designations as documents that are “permitted by law” to filed. Unquestionably, the of designation for service of aby foreign corporation to . .. “relate[s] corporation[ 14A:l-6(4). N.J.S.A. It is [and] affeet[s] [the] ].” certainly spirit within the of type the of documents the Secre- tary foreign of State receives from corporations and the Attor- ney opines General the Secretary of State should accept perceive documents. We no reject opinion. reason to his filing of such a require $15, document would of pursuant fee 14A:15-3(15). The filing of that document would public constitute a record any available to person inspection duplication in accordance 14A:l-9, with N.J.S.A. which states that: (1) of of shall Upon request State furnish certified any person, Secretary of documents filed in his office in accordance with the this
copies provisions act. (2) Upon shall request any State person, Secretary certify relating existence or non-existence facts on record his office domestic or corporations. Therefore, view, Attorney the applicable General’s statutory provides framework clear mechanism which recording of a designated agent by a foreign can and will be reflected the New Jersey Secretary We State. *16 agree that that position can be maintained under Jersey New law.
Although the customary meanings phrases of the two are similar, the makes a majority distinction between “recording]” “filing,” and ante believe that 315.3 it We is too narrow an interpretation powers Secretary of the the of of State, Indeed, a constitutional officer. the Attorney General’s (as instrument) legal File ... vb ... to deliver a after paper comply- ing (as fee) with any condition the to precedent of the payment proper keeping among officer for on file or records of his the office. (as Record ... vb ... make or of to have made authentic official copy lease) mortgage, deed, and or have inas an office deposit deposited esp. designated (3 by law. New International [Webster’s Dictionary 849, 1898 1976)]. ed. the of to receive duty Secretary of the of State
interpretation
14:1-6(4) is
under
one-page
and file this
document
interpreted
that statutes should be
concept
consonant with the
requirements.
with constitutional
See
harmony
so as to be in
(excision
(1982)
N.J. 287
of offend-
Right
Byrne,
to Choose v.
therapeutic
abor-
reimbursement
ing provision prohibiting
program);
Medicaid
Jor-
to maintain balance of
justified
tions
Ass’n,
(1982)
Protect.
327 III. conclusion, of our legislative
Because we find the scheme does not the violate Commerce Clause. Congress as When, here, has the enact states preempted field, may legislation generally that touches interstate commerce. See Techni- K.S.B. upon cal v. Sales North District Corp. Water N.J. 75 Supply Comm’n, 272, (1977). 294-300 When a acts state to out-of-state competition, prohibit se rule of has been v. virtually invalidity per applied. Philadelphia Jersey, (1978).
437 98 617, U.S. S.Ct. 57 624, 2531, 2535, L.Ed.2d 481 See also 475, Seelig, Baldwin v. G.A.F. 294 U.S. 55 S.Ct. L.Ed. Inc., 511, 527, 497, 502, 1032, (1935). legislation 1040-41 But when the the welfare and health, promotes of its then the a determination be made safety inhabitants, analysis requires as to the whether effect of the statute on interstate commerce is incidental. only If the burden is excessive relation to the local statute will the clearly interest, invalid. to which declared The extent on interstate will burden commerce be tolerated nature of the on the local interest and on whether that depends local in an interest could be alternative fashion without a burden. such promoted Pike v. Bruce 397 U.S. 90 S.Ct. Church, Inc., 137, 142, 844, 25 L.Ed.2d v. at States Chamber Commerce 89 N.J. [United State, 160-61]. It dealing is clear here that we are not with a case direct so, against foreign discrimination commerce. Had that been the Supreme United would have legis- States Court invalidated the go-round. lation on the first Even Stevens in dissent in Justice concluded that treating Searle “there is a rational basis for unregistered foreign corporations registered differently from are they because somewhat more to locate difficult 420,102 and with process.” to serve U.S. at S.Ct. L.Ed.2d at 263. The has a state legislation sound and beneficial clear, businesses, purpose. purpose That not to local but favor guard the against rights citizens loss of their due enterprises. conduct of absent clause
Analysis challenges regulations commerce state protectionist generally yielded that are not have au- broadest thority to states. determining state whether the has an undue interstate burden on imposed “conferring it must in mind that be borne the Constitution when
commerce,
regulation
Congress the
.. . never intended to
the states
commerce,
cut
legislating
subjects relating
off from
on all
of their
health, life,
safety
though
legislation might
affect
citizens,
commerce
indirectly
Portland Cement Co.
362 U.S.
Detroit,
440, 443-44,
country.” [Huron
*18
328
(1960)(quoting
Ailing,
L.Ed.2d
856
v.
813, 815-16,4
852,
Sherlock
23
820
L.Ed. 819,
Raymond
Rice,
also
Transportation,
See
Motor
Inc. v.
434 U.S.
429,
787,
98
(1978);
S.Ct.
54 L.Ed.2A 664
Southern Pacific Co. v.
Arizona,
761,
1515,
325
65
(1945).
U.S.
S.Ct.
We should decide a constitutional burden on the basis of the case Village before us. of Hoffman v. Flipside, Estates Hoff Estates, Inc., 489, 7, man 1186, 455 U.S. 495 & n. 102 S.Ct. 362, (1982); Martin, & n. 71 L.Ed.2d n. 7& In re 90 N.J. (1982); 309-10 College Educ., Shelton State Bd. N.J. 521-23 suggest To it is a disproportionate burden for a world-wide enterprise adapt to the statute of limitations law of the Jersey State New and to designate an agent for process service of is simply persuasive. According to the Directory (1982), Standard of Advertisers spent Honda $21,500,000on advertising country. this Moody’s Internation al reports that Honda of Japan’s $7,945,400,-0 sales in 1982 were 00.5 The message they Jersey send to the New consumer is clear Legislature and forceful. The has asked manufacturers to send one little message they brief about where can be found in anything goes case with the wrong motorcycle. granted Mining 5The Division leave to Brinco Limited to Appellate partici- proceedings inviting in the as an amicus curiae. It was a bit like
pate fox pending litigation into the hen house. on file with us refer to Papers in the United States District Court for the District of New where its amena- Jersey was at issue. Like it has a bility process Honda, direct interest in the case’s outcome and the wherewithal with our statute. comply Mining Brinco is a worldwide resource with 1980 development company income of $18,000,000. In 1980 it Cassiar Resources Ltd., Canadi- acquired an of asbestos. processor irony purpose Legislature, here is limitations, enacting the 1949 amendments to the statute of was put on foreign corporations footing an even with individuals. Thus a which foreign corporation, was then considered domiciled elsewhere, could gain advantage statute agents limitations if it had in New Jersey. individual, be no respect, it would different from part *19 nership unincorporated doing association business. The anomaly decision is that a now Court’s has an advantage long-standing judicial over an individual. The con struction of this is that even though statute absent individual subject defendant is in New Jersey, substituted service (1963) (service statute still tolls. Lemke v. 41 295 Bailey, N.J. in Vehicles); motor vehicle Motor case Director of cf. Guas, N.J.Super. (Law Guas v. Div.1977) (jurisdiction 146 541 accident; based time on residence at of move to another state statute). tolled equation amenability presence The with has never been our courts. followed legislative judgment
The
is one with
we
may may
which
.
is
agree.
agreed
The
that our courts
with it
point
have
for a
Lemke,
long
Legislature
changed
time and the
has never
it.
41
295;
N.J.
Co., Inc.,
New
Tube
England Paper
Lackovic v.
127
Div.1974)
N.J.Super.
(Law
defendant);
394
Whalen v.
(corporate
Young,
(Law Div.1953),
28
543
N.J.Super.
rev’d on other
grounds,
(1954)
defendant);
(corporate
The essence is to majority repeal of what since, tolling provision respect with nonresident as Judge Hopkins, majority Brotman out “the vast pointed who commit the state long- torts within would be amenable to 330
arm service. Without more we authority, cannot construe a state statute in a rendering manner it ineffective.” F.Supp. 463 at 542. We do would not so either. logic
We understand the
of the argument
that was advanced
by Justice Sullivan for the dissenting members of the Court in
Velmohos,
297-99,
83 N.J. at
that we should take into account
jurisdictional
change
long-arm
that
service
has
extended “to the
permitted by
uttermost
limits
the United
Constitution,”
Mecure,
264,
Corp.
States
Avdel
v.
58 N.J.
268
(1971), and
interpret
statute
with
accordance
that
We
change.
respect
argument
rejected
that
but
it
was
We
Velmohos.
either stand behind
judgment
or we do not.
framework,
in this
Taken
we cannot entertain
belief
unconstitutionality beyond
necessary
reasonable doubt
to in-
legislative program. Harvey
validate this
v.
County
Essex
Bd.
Freeholders,
(1959);
Sports
30 N.J.
New Jersey
&
Exposition
McCrane,
Auth.
N.J.Super.
(Law
Div.
aff’d,
1971), modified
IV. Japan Honda of motorcycle purchased manufactured the the plaintiff through Honda’s local distributor. of Japan Honda easily could and at minimal cost designated have its local dealer accept so, service of If it done process. had it would have “represented” been in this State and the statute of limitations would have been tolled under 2A:14-22. N.J.S.A. Honda of Japan chose to do otherwise therefore statute of limita- been tions has tolled.
Moreover, we permit every foreign corporation would to file a designation or appointment service within this conclude, therefore, Secretary with the of State. We State 2A:14-22 does not violate the Commerce Clause. judgment. We would affirm the joins opinion. Chief Justice WILENTZ in this CLIFFORD, HANDLER, For reversal—Justices POLLOCK and GARIBALDI-4.
For WILENTZ affirmance —Chief Justice and Justices SCHREIBER and O’HERN—3. T.L.O., IN THE
STATE INTEREST OF JUVENILE-APPELLANT. JERSEY, PLAINTIFF-RESPONDENT, OF NEW STATE ENGERUD, JEFFREY DEFENDANT-APPELLANT. Argued May August 1983 Decided 1983.