76 P. 863 | Kan. | 1904
The opinion of the court was delivered by
These cases are submitted together and • involve the same questions. In each the John Deere Plow Company, a foreign corporation, sued in the
The statute requires every foreign corporation seeking to do business in the state to make application to the charter board for permission to do so, which is granted only upon compliance with certain requirements, including the payment of fees. Section 1283, above referred'to, reads :
“It shall be the duty of the president and secretary or of the managing officer of each corporation for profit doing business'in this state, except banking, insurance and railroad corporations, annually, on or before the 1st day of August, to prepare and deliver to the secretary of state a complete detailed statement of the condition of such corporation on the 30th day of Jfine next preceding. . . . No action shall be maintained or recovery had in any of the courts of this state by any corporation doing business in this state*257 without first obtaining the certificate of the’ secretary of state that statements provided for in this section have been properly made.”
The reply in each case shows that the note sued upon was given for the purchase-price of machinery sold by plaintiff to defendant, the negotiations for such sale having been made, and the order for such machinery having been taken, by an agent of plaintiff residing in Kansas ; that the order was in writing, made by defendant and delivered to the local agent, by whom it was forwarded to plaintiff at Kansas City, Mo., for acceptance or rejection ; that plaintiff then accepted the order and shipped the machinery to the local agent for delivery to defendant. It is contended by plaintiff in error that as but one transaction is referred to in each case, and as each must be decided solely upon its own record, it cannot be said that it is made to appear that the corporation was engaged in business in this state. It is said in volume 13 of the second edition of the American and English Encyclopedia of Law, at page 869 :
“The doing of a single act of business in the domestic state by á foreign corporation does not constitute the doing or carrying on of business within the meaning of the statutory and constitutional provisions.”
Many decisions are there cited in support of this declaration, to which may be added : Commercial Bank v. Sherman, 28 Ore. 573, 43 Pac. 658, 52 Am. St. Rep. 811; Henry v. Simanton, 64 N. J. E. 572, 54 Atl. 153; Oakland Sugar Mill Co. v. Fred. W. Wolf Co., 118 Fed. 239, 55 C. C. A. 93; Florsheim etc. Co. v. Lester, 60 Ark. 120, 29 S. W. 34, 27 L. R. A. 505, 46 Am. St. Rep. 162; D. & H. Canal Co. v. Mahlenbrook, 63 N. J. L. 281, 43 Atl. 978, 45 L. R. A. 538. (See, also, 6
“Isolated, independent transactions in this state, incidentally necessary to the business of a foreign corporation conducted at its domicile, fully completed before action commenced, will not prevent recovery in the courts of this’ state by such corporation under section 1283, General Statutes of 1901, when no repetition of such acts is in contemplation and the territory of the state is not being made the basis of operations for the conduct of any part of the corporation’s business at the time the suit.is begun.”
Although the record in each case discloses but one transaction of the corporation, that transaction was not merely incidental or casual; it was a part of the very business for the performance of which the cor
The contention that the statute in question is not to’ be construed as applying to foreign corporations en-. gaged wholly in interstate commerce finds some support in the authorities. See volume Í3 of the second^ edition of the American and English Encyclopedia' o.f Law, page 870, and volume 17, page 106, where it is said:
“The transaction of the business of interstate commerce is not considered as ‘ doing business in the state’ within the meaning of state statutes regulating foreign corporations ‘doing business within the state.’ ”
Many of the cases cited in support of this statement, however, decide merely that provisions imposing conditions upon the conduct of interstate commerce are unconstitutional. Such of them as hold that, properly interpreted, the statutes do not apply to corporations engaged in interstate commerce reach that, conclusion only by a vigorous application of the principle that, if possible, a construction should be adopted that will avoid interference with the federal constitution. (See, also, 17 A. & E. Encycl. of L., 2d ed., 75,. and cases cited.) Whether or not all parts of the
It is not necessary to consider at this time whether the portion of that decision which affirms the constitutionality of the act is consistent with the adjudications of the federal supreme court on the subject. These, with other cases bearing on the matter, are collected, classified and discussed in an exhaustive note on “Corporate Taxation and the Commerce Clause,” in Sandford v. Poe, 60 L. R. A. 641, 677, 69 Fed. 546, 16 C. C. A. 305, but their effect need not be decided, for no such question is here involved. So far as the present controversy is concerned, it may be admitted that the state has no power to exact any requirements whatever as conditions precedent to the doing of business in this state by a foreign corporation engaged solely in interstate commerce.
The only part of the statute affecting the matter now to be determined is that already quoted in full, which merely provides that no foreign corporation doing business in this state shall maintain an action in any of the courts of the state without furnishing certain information regarding its affairs. The restriction is laid not upon the doing of business, but upon tlie use of the local courts. In Haldy v. Tomoor-Haldy Co., 4 Ohio Dec. 118, Bateman v. Western Star Milling
Although in each of the present cases the defense was made by answer and the judgment was that the defendant recover his costs, the effect is the same as though a formal plea in abatement had been interposed and sustained. There is no adjudication: against the plaintiff further than that it could not at the time maintain an action, and this judgment does not bar a new action whenever the disability shall have: been removed. The case of Ashley et al. v. Ryan, 49 Ohio St. 504, 31 N. E. 721, arose upon Ohio statutes authorizing the consolidation of corporations upon-stated conditions, including the payment of certain
1 ‘ The power to regulate commerce between the states belongs without doubt to.the Congress of the United States ; the states cannot interfere with or regulate it in any way. But the duty of the states in respect to such commerce is passive and not active. No state is under any federal obligation to furnish highways, nor to create agencies of any kind, for the purpose of facilitating interstate commerce. The grant of the right to be a corporation is within the sovereign discretion of the state, and cannot be controlled by any other power, state or federal. As it may create or withhold such franchises at its pleasure, it may grant them upon such conditions as best suit its own notions of convenience and policy. Hence the state violates no federal duty toward non-residents, whether corporate or natui’al persons, in refusing them corporate franchises or in making an exaction for the grant of the same, simply because such persons may have the control of a system of railways used in interstate commerce.”
The case was taken ■ to the supreme court of the United States, and in affirming the decision-of the state court it was there said : .
: ‘ ‘ The question here is not the power of the state of Ohio to lay a charge oh interstate commerce, or to prevent a foreign corporation from engaging in interstate commerce within its confines, but simply the right of the state to determine upon what conditions its laws as to the consolidation of corporations may b'e availed of.” (153 U. S. 436, 14 Sup. Ct. 865, 38 L. Ed. 773.)
•In paraphrase of this argument, as applied to the facts of this case, it may be said that the question
The judgments are affirmed.