*1 211 MISSOURI APPEAL REPORTS, State ex rel. v. Pioneer THE Monroe Use of STATE OF MISSOURI,

County, Respondent, v. THE CREAM PIONEER Appellant. Corporation, ERY a COMPANY, Appeals. Opinion St. Louis Court of Filed November Foreign Corporations: 1. CORPORATIONS: Do- Failure to Become Prosecuting Attorneys: mesticated: Authorized to Sue Name of State. In view of sections 736 Revised Statutes prosecute requiring to commence and concerned, actions in- the State or and to foreign against corporations stitute failed comply might with the laws of this in order that it domesticated, county prosecuting attorney a officer foreign corpo- to institute a suit name having ration a branch office in this State for failure to 1909, authorizing with section Revised Statutes it to do though attorney general business in this even possess similar under sections 696 Revised Statutes 1919. Foreign Corporations: Soliciting 2. INTERSTATE COMMERCE: Busi- Impose ness State: Incident to Interstate Business: State cannot (cid:127) impose Restrictions. State laws cannot burdensome restrictions commerce, interstate and laws enacted State for such purpose apply soliciting foreign do not business in a State regular an incident interstate inseparable business and therefrom. Establishing 3. -: -: Branch Office in State to Sell or Pur- Doing Relating chase Products: Business in State not to Interstate foreign corporation Commerce. Where a establishes of- a branch selling products purchasing fice in use, for its business within the and such corpo- interstate does relate to commerce and the subject ration is to the laws therein. Buying 4. -: -: -: Products in State: Intrastate Business. Where the business aof buying milk, that of its business intrastate regulate, purchase of the' State to within obligation delivery milk involved no for the to defend- company, requirement ant nor was there in the transaction shipped in that such milk should be strictly carrying pe- on of business local in character culiarly the exclusive control within of the State. TERM, 1922. State ex rel. v. Pioneer

-Appeal County. Court of Circuit —Eon. Judge. Eays, T. Charles *2 Affirmed. Schmiedeskamp

éWilson and E. Whitecotton for J.

appellant. respondent. Browning for

James J. brought by NIPPER, action was C. This Prose- Attorney County cuting of the defendant, alleged corporation, an Illinois it is which defendant failed to State with the laws of this might order that domesticated. Defendant petition, demurrer was over- demurred which filed its ruled, answer, after which defendant and jury, case was tried before the court without a judgment plaintiff by decreeing rendered plaintiff have recover of from and defendant fine in appeals. the sum of Prom defendant $1000. following agreed The case tried state- ment of facts:

“1. That at of the defendant was the time the acts complained pecuniary of now a is, profit organized the laws of the of Illinois under State company. nor was neither railroad insurance of 2. That the defendant at time acts complied complained requirements of had not with the of section 3039 the Revised of Missouri de of Secretary certificate license or of ceived State authorizing do it to of State Missouri, but complied since that time has with such section re Secretary such license or certificate from the of ceived authorizing of State of Missouri. complained

443. That the acts of are as follows: That the defendant store room at Madison rented a APPEAL MISSOURI REPORTS, State ex rel. v. Pioneer County sign, of Monroe and State of Missouri, where a put up by ‘The Pioneer defend-’ Co.,’ charge ant, store room was in of one Paris who Kellum, buyer employ inwas of the defendant as a cream bought defendant for the defendant at Madison, Mo., cream, to the defendant city Quincy, in the and was there Illinois, city Quincy, in said the defendant manufactured creamery into butter at its there located and that said traveling Kellum was not a drummer salesman. “4. That the defendant at time of the acts com- plained of theretofore the business of manu- facturing butter outside of the Missouri at creamery City Quincy, Illinois, buying and of 'cream in else- the State of Illinois and manufacturing where and butter from said cream outside City creamery the State of *3 at its said in said Quincy, of Quincy creamery from- and at City in said which of sold defendant orders filled product living for its from its in Uli- received customers purchased nois and elsewhere, that the cream purchased the State of Missouri was for the being of and was creamery into butter manufactured City Quincy, of Illinois. only complained

“5. That the acts of the defendant stipula- of are as set forth in above items 2 'and of this tion and that the creamery defendant had no or manu- facturing plant in the State of neither Missouri, manufactured nor nor any sold filled orders of commodities or within the State of Missouri.” urges grounds two defendant for reversal prosecuting attorney this court: that First, no had authority to maintain suit; that second, acts buying of defendant in County, cream in Mis- souri, were incidental to traffic “doing such acts did not constitute required business” in the sense that it would be com- ply requiring foreign with the law to be- come domesticated. (cid:127) TEEM, ex rel. v. Pioneer provisions

Defendant contends that of section part being the same 9825, Eevised of Statutes 1919, May away Act prosecuting of from the 30, 1919, take at- torneys rights upon and duties conferred them virtue of section 9793. duty Secretary

Section 9825 makes it any State, when believes that he transacting this State violation of law corporations, with investigate, inif and, probable any his there is cause to believe penalties provided fines, forfeitures, and law of the for such violation can recovered, investigation shall submit the result of his to the at- torney-general duty and it shall be the attorney-general proceed against corporation such provided by "as law.”

Section has been the statute books prescribes penalty this State since 1891, for the corporations doing failure of business in this requirements imposed with certain them Secretary law, and makes it the of State report the business such located; requires proceed- to institute ings provided to recover fine therein for. (cid:127) supra, specifically repeal- Section has not been by any Legislature, ed act of our nor do we think it can repealed by implication. be said that it has been Section sec- Eevised Statutes which was prose- provides tion 1007, Eevised that the *4 attorneys cuting prosecute shall commence and all civil respective and criminal in their in actions counties which county may concerned, the or State defend all suits prosecute county, or and forfeited the State recognizances recovery actions the and of debts, fines, penalties, accruing and forfeitures to the State or coun- ty. policy in been has, substance, the of this This Legislature the since 1825. 1872, In the office abolished APPEAL 211 REPORTS, MISSOURI Creamery Co. v. Pioneer ex rel. provided Attorney, election the Circuit Attorney. Prosecuting each the it makes 1919, Statutes 696, Revised Section attorney-general in the name and institute proceed civil the all suits and other State, on behalf -of rights necessary protect ings equity the law claims all State, to enforce and interests persons against any in what necessary. may be in sub ever court such action This, history since 1868. stance, been law has powers legislation, discussion as well as a may prosecuting duties of 237 Mo. Lamb, he ex rel. v. found 451: it l. c. said, wherein construction of Sec- “Whatever Attorney-General, it tion 970 as to duties during early all the time since the territorial clear that attorney days proper legal been local State’s has representative to respect in. institute no has that been behalf of the legislation. In strict historical sense, curtailed represents attorney prosecuting the State and exercises Attorney- analogous those exercised England.” General in Springfield In rel. Electric Wear Gas & — App. W.

Co., —, Mo. S. held had maintain action an enjoin equity in a on court behalf the State to c. also l. 946: stated, nuisance. But indicating not wish to he “We understood prosecute that the to institute we think dealing the character with which we are ca\ise of now attorney. exclusively Section judgment, 1909,would, Revised our authorize Attorney-General on institute behalf of the State enjoin equitable proceedings to fish destruction of plaintiff’s petition,” out in manner set etc. specific' In direction contained addition supra, general policy seem be the section would *5 TERM, rel. v. Pioneer legislative by as evidenced State, enactments, officer to though question, institute even Attorney-General possess similar au- thority. point against rule this first We the contention of defendant.

passWe to the next defendant, now contention of engaged business defendant was Madison, interstate commerce in not re trastate, quired that, therefore, the defendant not to with the Missouri law with to foreign corporations doing business this State. The foreign question doing or not a whether largely by State is business affected issues right involved. If the relates to the serve to upon process corpora corporation, right tion to maintain action State, a resident of this proposition presented presented a different than is right where it relates to the

impose a or restrictions foreign corporation though here; business and, eveir foreign corporation the may is interstate, doing be held to be so as business.within subject suit therein. The cannot however, impose burdensome restrictions interstate com by merce, and, State for such laws enacted are s apply soliciting held not to busines in a State foreign corporation, which is an incident regular inseparable interstate business and therefrom. Pigg, [International Book Co. Text U. S. page L.

In R. A. 1916E., annotator has this say question: with reference to ‘‘ soliciting purely These decisions that business of a doing interstate character is not business in with- purview corpora- relative statutes transacting tions the State, and per- burdensome restrictions thereon, are therefore precedents general question suasive on the of when a business in 211 MISSOURI APPEAL REPORTS, ex rel. v. Pioneer necessarily rule they restricted are *6 impose denying right of the referred burdensome restrictions States to, upon interstate commerce.” corpora general where a that, it is a rule However, pur in tion office establishes branch State'for pose purchasing selling products for its such the State and it is use,, within and the commerce, -to interstate business does corporation relate subject of the to the laws State right to do Pennsylvania, v. [Banker business therein. Brothers Co. Westerly Co. 145 N. Kaufman, 222 Shirt v. 210; U. S. Chicago Supp. Lumber Co. v. 197 68; Sims, Y. Mill & Mo. W. 507, 95 S. ruling McNaughton contrary v. in find a

We that, where where 20 Mont. was held McGirl, agent buy wool sent its into another State consigned State wool house a different be purchases it main made, from and where where were place principal such transactions of business, tained pertained solely traffic be commerce to interstate opinion that the court we are of tween States. But holding right that the business below was engaged intrastate and within defendant was was power purchase regulate, because the agent carrying at Madison on of milk peculiarly strictly within local in character and purchases were Such control of the State. exclusive apart separate in interstate commerce, from delivery oblig'ation volved no any company, property nor was there to the defendant requirement milk transaction such should be shipped The transaction was commerce. interstate began, complete commerce there before interstate purchase the milk no element the contract company shipped in Illinois. be the defendant should Waycross, Browning 17: v. S. As stated U. were asserted that if here “It is manifest accomplish recognized contract what or the OCTOBER TEEM, 1922. Ry. Exp. v. Am.

Sullivan upheld, claimed, here were to be all lines of demarca- tion authority wpuld between national and State ’’ etc. obliterated, naturally every

It busi would follow that kind purchase ness transacted of material afterwards to another kind product, into would and manufactured a finished or could made interstate commerce. The business separate transacted'by the defendant in this State was subject and distinct foreign corporations. governing laws of this State [Browning Waycross, supra, Supply Wichita Film & App. Co. v. 194 Mo. 184 W. Yale, 119; S.

rel. v. Robertson, 271 1132; Mo. National *7 Refrigerator Company Light v. Southwest Missouri Co., — Mo. -,

It follows, therefore, trial court be affirmed. should opinion foregoing

PER CURIAM: The of Nipper, adopted opinion judg- isC., as the the court. accordingly ment the circuit affirmed. Allen,. P. JBecker JJ., concur. Daues, Respondent, D. D. SULLIVAN, RAIL AMERICAN Ap Corporation, WAY EXPRESS COMPANY, pellant. Appeals. Opinion

St. Louis Court of Filed November Pleading: 1. COMMON CARRIERS: Carrier Live Stock: Action Duty: Allege Negligence. Eased on Need not C.ommon-Law Where plaintiff his bases cause of action a common carrier of obey live on the stock failure carrier’s its common-law safely allege’ neg- properly, to deliver live stock he need not ligence as essential cause his of action. Safely Properly: -: Liability: 2. -: Failure to Deliver law, Exceptions. special contract, At common in the absence of liability carrier same with live stock