This cause is before us on rehearing, which was granted and a^ reargument permitted, because of the importance and novelty of the main question involved. The original opinion is reported in 138. N. W. 959. We are not disposed to change the views there expressed as to the interpretation of the provisions of section no, Code 'Civ. Proc. This statute by necessary implication divides corporations into two general classes — domestic and foreign. It also distinguishes certain classes of cases in which service may be made on foreign corporations. As to this class of corporations, service can be made only: (1) When the corporation, has property in the state; (2) when the cause of action arose in the state; or (3) when such service shall be made in this state personally, upon some one of four of its officers named in the statute. It would seem also, under the first clause of the statute, it was intended that when a foreign corporation has property in this state, or the cause of action arose therein, service may be made upon any one of the six officers named in the statute, either within or without the state; but that question is not before us, and we do not decide it. Necessarily, all corporations not • embraced within the limitations applying to foreign corporations are domestic corporations. The provisions of the statute as to property within the state, that the cause of action arose in the state, or that service' must be made within the state, have no application to domestic corporations. We think, as to domestic corporations, the statute was intended to authorize service, either within or without the state, upon any one of the six officers, or agents named -in the statute.
The important and 'Crucial question is, as stated in appellant’s brief on rehearing, whether the service thus authorized, constitues “due process of law.” In a discussion of this question, it must be borñe in mind that a domestic corporation is always, not only a resident of the state, but is at all times within the state, 'and cannot be absent therefrom even temporarily. The real question then is whether the mode of service provided by this statute, upon a corporation, resident of and at all times within- the state, constitutes “due process of law.” The case before us, we think, is
The statement of counsel makes it unnecessary to refer to. the authorities which discuss generally and establish this doctrine. But counsel-'.in their brief further say: “The power of the state to designate the method of service of process is, however, subject to a very well defined restriction. The power must be exercised within the territorial limits of -the -state.”
Counsel found this supposed restriction upon the universally recognized doctrine that a state cannot send its process over a state line and thus make its laws operative in another jurisdiction. A moment’s reflection, we think, will make it clear that this statement of an alleged exception or restriction is inaccurate. As an approximately correct statement, it may be said that the power to proceed under a state statute, prescribing a particular mode of service as to citizens of the state, can only be constitutionally exercised when the citizen is within the territorial limits of the state. Thus stated, we think the rule is sustained by practically all the authorities. But statutes may be found under which it has been contended, by reason of the general rule as -stated by appellant’s counsel, that a state may authorize service of process upon its own citizens outside its territorial jurisdiction. This view could only be sustained, if at all, upon the -theory that a citizen of the state is always constructively within its boundaries and subject to its laws. A statute seemingly enacting this principle is discussed by Justice
We have no criticism to offer, either as to the reasoning or the final conclusion in that case, but we think it has no application to the case before us, because not only -was- the service made outside the state, but the defendant himself was outside the state at the time of service. In the Raher case, it was held that such service did not constitute “due process of law,” and therefore the statute authorizing it was unconstitutional. But what constitutes clue process of law, as to a citizen within the state,-is a different question, and we think is settled by the authbrities. It may be conceded that no person, resident or nonresident of the state, can be required by service of process' or notice in a foreign state to appear and defend in the courts of the state from which such notice or process issues, except in those cases in which the impending action is intended to affect property or status of such person already within the jurisdiction of the state or its courts. The exception is founded upon the theory that, while the process or writ of the state. court cannot reach a person outside the state, it can reach his property which is within the state. But even in this class of cases, the procedure is unconstitutional unless it is such as to constitute “due process of law.” > It is essential to due process of law in such cases that some method of service of notice be provided, reasonably designed to reach the defendant, and that an opportunity be offered him to appear and defend. It is not the fact-alone that property of the absent defendant is within the state, or is seized under a writ or process of the state court, that constitutes due process of law. It is the notice, and opportunity to appear
In Carter et al v. Frahm,
No argument or citation of authorities is necessary to sustain the proposition that such notice as is required to constitute “due process -of law” when a person'or a foreign corporation has property- within -the state, may be served outside the state. The notice thus required is not, in itself, due process of law; it is merely one of its essential parts. The fact that the notice in this class of cases may be served outside the state is alone sufficient, we think, to demonstrate the fallacy of appellant’s contention — that the notice essential to' due process of law as against our own citizéns within the state cannot be served or given outside the state boundaries. It is- apparent that the cases cited by appellant, which hold that a judgment in personam cannot be entered upon service outside the state upon either residents or nonresidents, of either notice or process, have no application to the case before us. In this case, we are dealing with a resident of the state which never was and never can be outside its boundary lines. ,The constitutional limitation as to persons without the state does not apply to persons actually within its boundaries. As to persons within the state, the only constitutional restriction is that they shall not be deprived of life, liberty, or- property without due process of law. As to -this limitation, no distinction exists between actions in rem and actions in personam. The only question is whether the procedure provided by the statute is such as to constitute due process of law. If service of summons outside the' state, upon a nonresident who has property in the state, is sufficient notice to afford an opportunity to appear' and defend against the taking of its property, we see no reason for holding that, as to a domestic corporation, a like service upon its agent or officer, outside the state, is not likewise sufficient
In some, cases, the courts, while recognizing the authority of the Legislature to prescribe the mode of service as to citizens within the state, have held that the service prescribed by a particular statute was not due process of law, because not reasonably calculated to bring notice of the commencement of the action home to the defendant. Pinney v. Providence Loan & Inv. Co.,
Nelson v. C. B. & Q. R. R. Co.,
A similar statute was sustained -in the case of Clearwater Merc. Co. v. Roberts, etc., Shoe Co.
A statute of Minnesota provided, in substance, that, when a domestic corporation had no officer in the state upon whom service of process could be made, an action might be commenced in any county where the cause of action arose, by depositing a copy of the summons, writ, -or other process or citation in the office of the Secretary of State, which should be deemed and treated as personal service on such corporation. The statute was assailed as unconstitutional, because su-ch service was not due process of law. The court says: “If the mode of •■service provided for is, under the circumstances, reasonable and appropriate to the case, it is 'due process o-f law,’ and, as to citizens, residents of the state, will give jurisdiction of the person, and support a personal judgment against them, although they were not served in person. Freeman, Judgment, § 127. There is no class of cases where there is greater necessity for service in person than where domestic corporations have no officer who can be found in the state upon whom to make service of process; and we can- conceive of no form of service which would in such cases- be more appropriate and more likely to communicate notice of the commencement of the action to the corporation, than the one provided in this statute.” Town of Hinckley v. Kettle River R. Co., 70 Minn, no,
We are of -opinion that the statute, as we have construed it, should be held to provide due process of l^.w as to a domestic corporation, and that the order appealed from should be affirmed.