254 Mass. 569 | Mass. | 1926
This action is brought by a resident of Massachusetts against a defendant described in the writ as a corporation having a usual place of business in the city of Boston in our county of Suffolk. The return of the officer shows that service was made upon F. D. Dodge, “agent” of the defendant and “in charge of its business.” The defendant filed an answer in abatement, to which the plaintiff demurred. The facts well pleaded in the plea must be accepted as true for the purpose of this decision. Those facts, so far as material, are that the defendant is a foreign railroad corporation engaged in interstate commerce wholly outside this Commonwealth and that it does not own, operate, or control any railroad within this Commonwealth, and that it has never done any business within this Commonwealth except that it maintains an office in the city of Boston solely for the solicitation of interstate freight and passenger traffic, to be transported over its railroad without this Commonwealth; that the person, upon whom service was made, was
It is provided by G. L. c. 223, § 38, that “In an action against a foreign corporation . . . , which has a usual place of business in the Commonwealth, or, with or without such usual place of business, is engaged in or soliciting business in the Commonwealth, permanently or temporarily, service may be made ” as was made in the case at bar.
It is contended under these circumstances that both under the statute and apart from the statute the attempted service on the defendant was not due process of law, and that to require the defendant to submit to this action would unreasonably obstruct and unduly burden interstate commerce contrary to rights guaranteed to it under the Constitution of the United States. These contentions depend for their soundness upon the interpretation of the Federal Constitution, as to which adjudications of the Supreme Court of the United States constitute the sole guide and final decision. But these contentions arise in litigation before this court and we must express our conclusions concerning them.
It was said in Reynolds v. Missouri, Kansas & Texas Railway, 224 Mass. 379, 386: “The mere solicitation of business by a foreign corporation without more commonly has been held not to be the doing of business within a State.”
When the validity of service of process upon a foreign corporation has depended upon a statute providing for service of process upon such corporations doing business within the State where the action is brought, or upon the doing of
Respecting the question, when a foreign corporation is doing business within a jurisdiction other than that of its domicil, it was said in People’s Tobacco Co. Ltd. v. American Tobacco Co. 246 U. S. 79, at page 87: “The general rule deducible from all our decisions is that the business must be of such nature and character as to warrant the inference that the corporation has subjected itself to the local jurisdiction, and is by its duly authorized officers or agents present within the State or district where service is attempted.” The same statement in substance occurs in St. Louis Southwestern Railway Co. of Texas v. Alexander, 227 U. S. 218, 227.
It seems clear to.us that, in the absence of any statute, the acts of the defendant within this Commonwealth were not of such nature as to render it subject to the jurisdiction of our courts by service of process such as is shown by this record. That conclusion rests upon binding decisions of the Federal Supreme Court, to the effect that simple solicitation of business by a foreign corporation does not constitute such
The defendant, being engaged exclusively in interstate commerce, so far as concerns its solicitation of business in this Commonwealth had a right to come here for that solicitation without let or hindrance from this Commonwealth. “A corporation of one State may go into another, without obtaining the leave or license of the latter, for all the legitimate purposes of such commerce; and any statute of the latter State which obstructs or lays a burden on the exercise of this privilege is void under the commerce clause.” Dahnke-Walker Milling Co. v. Bondurant, 257 U. S. 282, 291. Sioux Remedy Co. v. Cope, 235 U. S. 197, 203. McCall v. California, 136 U. S. 104. International Text Book Co. v. Tone, 220 N. Y. 313. Manifestly the defendant could not be made subject to any license, excise or tax for the solicitation of business done by it within this Commonwealth. Real Silk Hosiery Mills v. Portland, 268 U. S. 325, 335. Alpha Portland Cement Co. v. Massachusetts, 268 U. S. 203. Lemke v. Farmers Grain Co. 258 U. S. 50, 59. A foreign corporation may be doing business within a State to such an extent as to be liable to service of process and thus subject to its jurisdiction, and yet not liable to taxation or other undue burdens upon interstate commerce. The distinction between presence of a foreign corporation for service of process because doing business even exclusively interstate in nature, and its absence for purposes of taxation although doing such business, is well established. International Harvester Co. of America v. Kentucky, 234 U. S. 579, 586, 587. Real Silk Hosiery Mills v. Portland, 268 U. S. 325, 335. Shafer v. Farmers Grain Co. 268 U. S. 189, 199. Tauza v. Susquehanna Coal Co. 220 N. Y. 259. See St. Louis, Brownsville & Mexico Railway v. Taylor, 266 U. S. 200, 207. That distinction is of no consequence in the case at bar because the defendant is not engaged in business within this Commonwealth in such sense that under general principles of law apart from statute it could be made subject to our jurisdiction by service of process.
We approach the construction of our statute in the light
It was said in Davis v. Farmers Co-operative Equity Co. 262 U. S. 312, 316, where a statute authorizing an action, arising out of interstate commerce, by a nonresident plaintiff against a nonresident corporation, for a cause occurring in a foreign jurisdiction, was stricken down as in violation of the interstate commerce clause of the Constitution of the United States: “It may be that a statute like that here assailed would be valid although applied to suits in which the cause of action arose elsewhere, if the transaction out of which it arose had been entered upon within the State, or if the plaintiff was, when it arose, a resident of the State. These questions are not before us; and we express no opinion upon them.” That statement does not seem to us to stretch far enough to include the case at bar.
It may be that solicitation of business in the light of the statute may be enough upon which to found an action growing out of business resting on that solicitation; but that is not the question here presented and need not be decided. We do not undertake further to delimit the force and effect of G. L. c. 223, § 38. We do not declare it invalid. It is possible that all its words may be given effect as applied to other states of facts. It is left for full force as to all subj ects which it may constitutionally govern. Attorney General v. Electric Storage Battery Co. 188 Mass. 239. Commonwealth v. O’Neil, 233 Mass. 535. Manchester v. Popkin, 237 Mass. 434, 439. It certainly may govern the method of service of process in all cases where the solicitation or other transactions amount to a doing of business. International Harvester Co. of America v. Kentucky, 234 U. S. 579. Tauza v. Susquehanna Coal Co. 220 N. Y. 259. A statute may be constitutional in its operation with respect to some persons or states of fact and unconstitutional as to others. Sears v. Board of Aldermen of Boston, 173 Mass. 71, 79, 80. The extent of the present decision is to hold that no sufficient service was made to acquire jurisdiction over the defendant
Order sustaining demurrer to plea reversed.
Demurrer to be overruled.