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FOREIGN CORPORATIONS.- (See also CORPORATIONS (PRIVATE); INTERSTATE COMMERCE; RECEIVERS; STOCK; STOCKHOLDERS; TAXATION.) 1. Definition, 329

(a) Discrimination, 366. II. Name of Foreign Corporations, (6) Citizenship for Purposes of Ju330.

risdiction, 367. III. Domicil of Foreign Corpora- (c) Standing in Courts, 367. tions, 330.

2. Interstate Commerce, 368. IV. Authority and Powers of For- VI. Liability for Torts, 369. eign Corporations, 331.

VII. Liability to Taxation, 369. 1. Comity the Basis of Recognition, (a) State Taxation and Interstaie (a) Repeal of Comity, 332.

(332.

Commerce, 371. (6) Exclusion, 333.

VIII. Actions By and Against For2. General Limitations of Powers,

eign Corporations, 375.
(a) General Laws, 334. (334. (a) At Common Law, 375.
(6) Special Franchise, 334.

(6) By Statute, 377.
(c) State Policy, 335.

(c) Jurisdiction, 377. (d) Charter Limitations. 336.

(d) In Federal Courts. 380. 3. Statutory Conditions imposing 1. Service of Process, 382. Limitations, 338.

(a) dt Common Law, 382. (a) When Conditions Precedent, 340.

(6) By Statute, 382. (6) Effect of Non-compliance-Pen

(c) Service upon Omcer Casually in alties, 340

State, 384. (c) Whal Constitutes Doing Busi- (d) Who are Proper Agents for ness Within Statutes, 346.

Service of Process, 386 (d) Corporations Holding Patent- (e) Miscellaneous Matters Relating rights, 350.

to Service of Process, 389. (e) Constitutionality of Retaliatory 2. Judgments I gainst. 390. Statutes, 351.

3. Attachment and Garnishment. 393. () Invalid ActsRemedy, 353.

(a) In General. 393. (g) Estoppel-Ultra Vires, 354.

(6) Practice and Pleading", 396. (h) Miscellaneous, 357.

(c) Consolidated Corporations. 396. 4. Powers as to Meetings, 356.

(d) Exemption Lau's. 396. 5. l’orvers as to Real Estate, 357.

4. Limitation of ditions, 397. (a) Mortgages, 360.

5. Actions by or against Non-resi(6) Devise, 361. (c) Eminent Domain, 364.

6. Romorul of Causes, 401. (d) Lease, 365.

7. Incidents of Actions, 402 (1) Trustees. 365.

IX. Consolidation of Foreign Cor6. Power's made those of Domestic

porations. See CORPORATIONS Corporations, 365.

(PRIVATI). 7. Powers as to Personal Property, X. Dissolution of Foreign Corpora365.

tions, 104. V. Constitutional Rights of For- 1. Generally. 404. eign Corporations, 365.

2. Protiction of Home Criditors. 405. 1. When Citizens under United States 3. Appointment of Receivers, 408. Constitution, 365.

4. Recognition of Receivers, 109. I. Definition.—A corporation of one State or government, which, by the comity recognized among States and nations, is permitted, with or without restrictions, to exercise the powers with which it is endowed in other sovereignties. In Indiana, it has been thus defined: A corporation created by or under the laws of any other State, government, or country, or, one not incorporated or organized in this State. 1

1. Daly v. National Life Ins. Co., 64 by or pursuant to the laws in force in Ind. 1.

the Colony of New York before the 19th Definition in New York Code.- A “ do- day of April, in the year 1775. Every mestic corporation” is a corporation cre- other corporation is a foreign corporaated under or by the laws of the State, or tion. New York Code of Civil Proce. located in the State and created by or dure, $ 3343. under the laws of the United States, or Whether, after organization, it could

dents. 399.

II. Name of Foreign Corporations.—A Federal court cannot interfere to prevent the organization of a corporation bearing the same name as that of a foreign corporation doing business in the State.1 When a judgment is obtained against a corporation in an erroneous name, and the judgment is transferred to another State, the correct corporate name may be used in the latter State, accompanied by an averment that it is the same company.2

III. Domicil of Foreign Corporations.—A foreign corporation has its domicil in the State from which it derives its existence, or is, at least, primarily a citizen of that State. Its right to transact busi

interfere to prevent the use of the name Sweetland, 14 Abb. Pr. (N. Y.) 240; in fraud of the rights of the foreign cor- Runyan v. Coster, 14 Pet. (U. S.) 122; poration, quare:

Tombigbee R. Co. v. Kneeland, 4 How. 1. Lehigh Valley Coal Co., v. Hamb- (U. S.) 16; Ex parte Schollenberger, 95 len (III.), 23 Fed. Rep. 225.

U. S. 369; Bank of Augusta v. Earle. 13 If the persons composing a corporation Pet. (Ú. S.) 519, 521; Insurance Co. v. formed under the laws of one State should Francis, ir Wall. (U. S.) 216; Covington become also incorporated under the laws V. Shepherd, 20 How. (U. S.) 232; Tioga of another State, the two organizations R. Co. v. Blossburg, etc., R. Co., 20 will constitute separate and distinct cor- Wall. (U. S.) 148; McCall v. Byram Mig. porate bodies, and the one cannot form Co., 6 Conn. 428; Newport, etc., Bridge an integral part of the other; and the Co. v. Woolley, 78 Ky. 523; s. C., 7 Am. corporation of the one State cannot en- & Eng. R. R. Cas. 18. join the formation of a new corporation In Merrick v. Van Santvoord, 34 N. Y. in the same State under a similar name, 218, the court observed: A corporation to prevent an injury to the business of is an artificial being, and has no dwelling buying and selling of the foreign corpo. either in its office, its warehouses, its deration in such State. If a domestic corpo pots, or its ships. Its domicil is the legal ration, after its members have procured jurisdiction of its origin, irrespective of the an incorporation of themselves in a sister- residence of its officers or the place where State, by the same name, should abandon its business is transacted. It retains that the business, practically, in the original domicil until it ceases to exist." State, and there keep its organization only A corporation may be deemed to have in name to prevent others from transact- two domicils when a just construction of ing the same business, it cannot, in equity, a statute so requires. Atty.-Gen. v. Bay maintain a bill to enjoin the formation of State Mining Co., 99 Mass. 163; Rickes v. another corporation in the original State American Loan, etc., Co., 140 Mass. 350. by a similar name, to engage in the same See also Carron Iron Co. v. MacLaren, 5 business, when none of its trade-marks H. L. Cas. 416. are sought or intended to be used by the But a corporation can have a construclatter. Drummond Tobacco Co. v. Ran- tive residence, so as to subject it like a dle, 114 Ill. 412.

natural person, to be charged with taxes 2. Lafayette Ins. Co. v. French, 18 and be submitted to a special jurisdiction. How. (U. S.) 404; Medway Cotion Manf. Cromwell v. Ins. Co., 2 Rich. (S. Car.) V. Adams, 10 Mass. 360; New York Afri- 512; Glaize v. S. Carolina R. Co.,I Strobh. can Soc. v. Varick, 13 Johns. (N. Y.) (S. Car.) 70. 38. See also Inhabitants v. String, 5 “ It may be maintained that a corporaHalst. (N. J.) 323.

tion may have two domicils. In support 3. See, generally, CORPORATIONS (Pri- of this view are cited cases in which it has VATE); DOMICIL OF CORPORATIONS. apparent.y been decided that a corporation The domicil of a corporation is deter- can, for the purpose of being sued, have a mined by the place in which it transacts domicil in each of two countries. Such business, not by that where the bulk of cases are not decisive, for liability to be its property lies, nor where its chief offi- sued does not, in the case of a corporation cers reside. It has its domicil in the State any more than of an individual, depend whose legislature has created it. Balti- upon domicil. They may each be sued in more, etc., R. Co. v. Glenn, 28 Md. 287; the courts of this country, if amenable to Merrick v. Van Santvoord, 34 N. Y. 208; the process of our courts. There is in this Crowley v. Panama, etc., R. Co., 30 Barb. respect no difference between a foreign in(N. Y.) 99; International Life Ins. Co. v. dividual and a foreign corporation, except

ness elsewhere, however universally recognized, is dependent upon comity.1 While it may be given a constructive domicil in a foreign State or country, and be encouraged or forced to acquire a residence there which is at least sufficient to give jurisdiction over it, its character as a foreign corporation is not thereby changed.?

IV. Authority and Powers of Corporations Outside of State of Incorporation. 3_ Powers exercised by a corporation in a State other than that of incorporation are valid, or not, as the laws of the State in which they are used prohibit or either expressly or impliedly permit their exercise; and no corporation can make a valid contract without the sanction, express or implied, of such State, 4 unless involving some right secured by the Constitution of the United States,

While a corporation can have no legal existence outside of the sovereignty which created it, still, by the general law of comity

that the individual may be amenable to Duer (N. Y.), 648; McCluer v. Manchesprocess both in his person and in his ter, etc., R. Co., 13 Gray (Mass.), 124; property, whilst a corporation domiciled Kennebec Co. v. Augusta Ins., etc., Co., abroad can (it is conceived) only be ame- 6 Gray (Mass.), 204; Lathrop v. Commernable to process through its property and cial Bank, 8 Dana (Ky.), 114; Hadley v. through its agents. On the whole, the Freedman's Sav., etc., Co., 2 Tenn. Ch. better opinion seems to be that a corpora- 122; Williams v. Creswell, 51 Miss. 817; tion has, following the analogy of an in- Frazier v. Willcox, 4 Rob. (La.) 518; Baldividual, one principal domicil, at the place timore, etc., R. Co.v. Glenn, 28 Md. 287; where the centre of its affairs is to be Newburg Petroleum Co. v. Weare, 27 found, and that the other places, in which Ohio St. 343; Ohio Life Ins., etc., Co. v. it may have subordinate offices, corre- Merchants' Ins., etc., Co., II Humph. spond, as far as the analogy can be carried (Tenn.) 22; Wood, etc., Mining Co. v. out at all, to the residence of an individ- King, 45 Ga. 34; Hoyt v. Thompson, 19 ual.” Dicey on Domicil, p. 110. See N. Y. 207; Bard v. Poole, 12 N. Y. 495; also, post, this title, ACTIONS BY AND Western 71. Genesee Mut. Ins. Co., 12 N. AGAINST.

Y. 258; Hoyt v. Shelden, 3 Bosw. (N. 1. See, ante, this title, PowERS, COMITY Y.) 267; Baltimore, etc., R. Co. v. PittsTHE BASIS OF RECOGNITION.

burg, etc., R. Co., 17 W. Va. 812; Chap2. A corporation is a creature of the man v. Pittsburg, etc., R. Co., 18 W. va. sovereign will, and, when created by one 184; s. c., 9 Am. & Eng. R. R. Cas. 484; sovereignty, it can operate within another's State Treasurer v. Auditor-General, 46 limits only by the latter's express permis- Mich. 224; s, C., 13 Am. & Eng. R. R. sion or by permission implied from prin- Cas. 296. See also authorities cited in ples of comity, but such permission does succeeding notes. not make it any the less a foreign corpo- 5. Erie R. Co. v. State, 31 N. J. Law ration. Cooley, J., in State Treasurer v. 531; State v. American Exp. Co., 7 Biss. Auditor-General, 46 Mich. 224; s. C., 13 (C. C.) 230; Canada Southern, etc., R. Am. & Eng. R. R. Cas. 296.

Co. v. Gebhard, 109 U. S. 537. See, 3. The principles, and those which fol- post, CONSTITUTIONAL Rights. low and are collateral to them, are so 6. Paul v. Virginia, 8 Wall. (U. S.) thoroughly well settled, and so constantly 181; Runyan v. Coster's Lessee, 14 Pet. repeated in the authorities, that the citation (U. S.) 129; Covington v. Shepherd, 20 of further references is deemed unneces- How. (U. S.) 232; Insurance Co. v. Fransary. They form the basis of recognition cis, ii Wall. (U. S.) 216; Tioga, etc., R. of foreign corporations in all jurisdictions, Co. v. Blossburg, etc., R. Co., 20 Wall. and are mentioned or impliedly recognized (U. S.) 148; Plimpton v. Bigelow, 93 N. in nearly all cases where foreign corpora. Y. 598; Merrick v. Van Santvoord, 34 N. tions are litigating parties.

Y. 208; Stevens v. Phenix Ins. Co., 41 N. 4. Bank of Augusta v. Earle, 13 Pet. (U. Y. 150; Chafee v. Fourth Natl. Bank, 71 S.) 519; Tombigbee R. Co. v. Kneeland, Me. 539; Baltimore, etc., R. Co. v. Glenn, 4 How. (U. S.) 16; New York Floating 28 Md. 287; Myer v. Liverpool, etc., Ins. Derrick Co. v. New Jersey Oil Co., 3 Co., 40 Md. 595.

prevailing between foreign States and countries and the different States of the Union, a corporation created by one sovereignty may transact business in the usual way, by the usual agencies, and make contracts if authorized by charter, in another sovereignty and sue in its courts. 1

1. COMITY THE BASIS OF RECOGNITION.—The comity which forms the basis of recognition of corporations incorporated under another sovereignty is binding on the courts as being part of the common law of the State. It is the comity of the nation, ascertained in the same way, and guided by the same reasoning by which all other principles of municipal law are ascertained and guided."'2

(a) Repeal of Comity.The law of comity governs unless a State expressly indicates an intention to repeal; nor can a prohibition of a foreign corporation to transact business within the State limits be inferred from the fact that its legislature has made no provision for the formation of similar corporations, or allows corporations to be formed only by general laws.3

1. Bank of Augusta v. Earle, 13 Pet. Wood Hydraulic, etc., Co. 7. King, 45 (U. S.) 519.

Ga. 34; Home Ins. Co. v. Davis, 29 Mich. In Christian Union 7. Yount, ioi U. S. 238; Kerchner v. Gettys. 18 S. Car. 525. 352, Harlan, J., stated the rule as follows: 2. Story's Conflict of Laws, S 36; Bank “ In harmony with the general law of com- of Augusta v. Earle, 13 Pet (U. S.) 589; ity obtaining among the States composing Thompson v. Waters, 25 Mich. 224; State the Union, the presumption should be in- v. McCullough,

Nev, 218. See Schibsdulged that the corporation of one State, by v. Westenholz, L. R. 6 Q. B. 159; Wilnot forbidden by the law of its being, may liams v. Jones, 13 M. & W. 633; Warrenexercise within any other State the gen- der v. Warrender, 2 Cl. & Fin. 529; s. C., eral powers conferred by its own charter, 9 Bligh, 115. unless it is prohibited from so doing either 3. Cowell v. Springs Co., 100 U. S. 59; in the direct enactments of the latter State, Christian Union v. Yount, 101 U. S. 356; or by its public policy to be deduced from Stevens v. Pratt, 101 Ill. 206; Thompson the general course of its legislation, or v. Waters, 25 Mich_224; Bank of Augusta from the settled adjudications of its high- v. Earle, 13 Pet. (U. S.) 594; Merrick v. est court." See also Tombigbee R. Co. Van Santvoord, 34 N. Y. 221. v. Kneeland, 4 How. (U. S.) 16; Cowell In Bank of Augusta v. Earle, 13 Pet. v. Springs Co., 100 U. S. 55; Williams v. (U. S.) 592, the court observes: “When Creswell, 51 Miss. 817; Silver Lake Bank ever a State sufficiently indicates that conv. North, 4 Johns. Ch. (N. Y.) 370; Bard tracts which derive their validity from its v. Poole, 12 N. Y. 495; Merrick v. Van comity are repugnant to its policy, or are Santvoord, 34 N. Y. 208; British Am. considered as injurious to its interests, Land Co. v. Ames, 9 Metc (Mass.) 391; the presumption in favor of its adoption Martin v. Mobile, etc., R. Co.. 7 Bush can no longer be made.” (Ky.), 116: Guaga Iron Co. v. Dawson, 4 In Leasure v. Union Mut. Ins. Co., 91 Blackf. (Ind.) 202; Leasure v. Union Mut. Pa. St. 491, a local statute of mortmain Life Ins. Co., 91 Pa. St. 491; Dodge v. City was held enforceable against foreign corof Council Bluffs, 57. Iowa, 560; Frazier 7'. porations. See also Leasure v, Hillegas, Willcox, 4 Rob. (La.) 517; Life Asso. ?'. 7 S. & R. (Pa.) 313; Runyan v Coster, Levy, 33 La. Ann. 1203; Kennebec Co. v. 14 Pet. (U. S.) 122; Methodist Church v. Augusta Ins. Co., Gray (Mass.), 204; Remington, 1 Watts (Pa.), 219; Miller 7'. Flash v. Conn, 16 Fla. 428; Newburg Porter, 53 Pa. St. 292; Grant v. Henry Petroleum Co. v. Weare, 27 Ohio St. 343; Clay Coal Co., 80 Pa. St. 208. Western Union Tel. Co, F Mayer, 28 Where the power of a fire insurance comOhio St. 521; Bank of Washienaw v. pany is revoked by the commissioner of Montgomery, 3 III. 422; Santa Clara Fe- insurance, it cannot thereafter recover male Acad. v. Sullivan, 116 III. 375; Bal. on instalment notes for fire insurance timore, etc., R. Co. v. Glenn, 28 Md. 287; upon which, by the terms of the policies,

(6) Exclusion.A State may exclude from its limits entirely corporations chartered by other States, if done expressly, and the reasons or motives cannot be inquired into.1

IO

payments fall due in advance. Otherwise Conn. 428; State v. McCullough, 3 Nev. it would be able, in a measure, were it 218; Land Grant R. Co. v. Coffee City, inclined, to evade fear from future statutes 6 Kan. 252; Marsh v. Bennett, 5 McLean by long policies. Am. Ins. Co. v. Stoy, (C. C.), 117: Balt. & Ohio R. Co. v. 41 Mich. 385, 402.

Glenn, 28 Md. 287 ; Merrick v. Van 1. Blair v. Perpetual Ins. Co., Santvoord, 34 N. Y. 208 ; Blackstone Mo. 564.

A State has the right entirely Mfg. Co. v. Inhabitants of Blackstone, to exclude such corporations from its 13 Gray (Mass.), 488; Am. Mut. L. Ins. territory, or, having given a license, to Co. v. Owen, 15 Gray (Mass.), 491 ; revoke it, in its discretion, for good Washington Co. Ins. Co. 2. Chambercause, or without cause ; the motive or lain, 16 Gray (Mass.), 165; Hutchins v. intention of the State in so doing is not New England Coal-Mining Co., 4 Allen open to inquiry. The company has (Mass.), 580; Folger v. Columbian Ins. no constitutional right to transact its Co., 99 Mass. 267, 271 ; British-Am. business in such State, and hence its ex- Land Co. v. Ames, 6 Metc. (Mass.) 391; clusion therefrom for whatever cause Elston v. Pigott, 94 Ind. 18; s. C., 8 Am. violates no constitutional right. Doyle v. & Eng. Corp. Cas. 185. Continental Ins. Co., 94 U. S. 535. See In Paul v. Virginia, 8 Wall. (U. S.) 168, also, as to power of State to prohibit it was held that a State may practically foreign corporation to contract, Paul v. exclude foreign corporations. It may reVirginia, 8 Wall. (U. S.) 168; Lafayette strict them to particular localities, or Ins. Co, v. French, 18 How. (U. S.) 404; exact such security for the performance Ducat v. Chicago, 10 Wall. (U. S.) 410; of their contracts as will best promote Liverpool Ins. Co. v. Massachusetts, 10 the public interests. The whole matter Wall. (U. S.) 566; Warren Mfg. Co. v. rests in the discretion of the State. See Ætna Ins. Co., 2 Paine (C. C.), 501 ; also Western Union Tel. Co. v. Mayer, Home Ins. Co. v. Davis, 29 Mich. 238; 28 Ohio St. 539, and cases cited. Commonwealth v. Milton, 12 B. Mon. A license to a foreign corporation to (Ky.) 212; Phænix Ins. Co. v. Common- enter a State does not involve a permawealth, 5 Bush (Ky.), 68; Gill's Adm'r v. nent right to remain. Subject to the laws Kentucky, etc., Gold-Mining Co., 7 Bush and Constitution of the United States ( Ky.), 635; Matthews v. Theological full power and control over its territories, Sem., 2 Brewst. (Pa.) 541; Fire Dept. v. its citizens, and its business belong to Noble, 3 E. D. Smith (N. Y.), 449; the State. And even where the condic Slaughter v. Commonwealth, 13 Gratt. tion requires an agreement which would (Va.) 767; Western Union Tel. Co. v. be void as contrary to the United States Mayer, 28 Ohio St. 521; Milnor v. N. Y. Constitution, e.g., agreement never to re& Ń. H. R. Co., 53 N. Y. 363; People v. sort to the Federal courts, still the State Fire Asso. of Phila., 92 N. Y. 311; Taten may legally exclude therefrom all foreign v. Wright, 23 N. J. L. 429; St. Clair v. corporations which refuse to so agree Cox, 106 U. S. 350; s. c., I Am. & Eng with the State. Doyle v. Continental L. Corp. Cas. 19; Ohio, etc., R. Co. v. Wheels Ins. Co., 94 U. S. 535. er, i Blatchf. (U. S.) 286; Day v. Newark The Wisconsin legislature enacted that India Rubber Co., I Black. (U. S.) 628; if any foreign insurance company transNew Hope, etc., Co. v. Poughkeepsie ferred a suit brought against it from the Co., 25 Wend. (N. Y.) 648; Thompson v. State courts to the Federal courts, the secWaters, 25 Mich. 214; Milwaukee Fire retary of State should revoke and cancel Dept. v. Helfenstein, 16 Wis. 136; Pierce its license to do business within the Siale. v. People, 106 Ill. 13; Cowell v. Springs An injunction to restrain him from so Co., 100 U. S. 59; Christian Union v. doing, because such a transfer is made, Yount, 101 U. S. 352; Relf v. Rundle, cannot be sustained. The suggestion that 108 U. S. 226; Railroad Co. v. Kountz, the intent of the legislature is to accom104 U. S. 11; Canada Southern R. Co. plish an illegal result, to wit, the prevenv. Gebhardt, 109 U. S. 537; Carroll v. iion of a resort to the Federal courts, is E. St. Louis, 67 Ill. 568; Ducat v. Chi- not accurate. The effect of this decision is cago, 48 Ill. 172; Starkweather v. Bible that the company must forego such resort, Society, 72 Ill. 50; Elston v. Blanchard, or cease its business in the State. The 2 Scam. (111.) 420; Willard v. People, 4 latter result is here accomplished. Dovle Scam. (II.) 461; McCall v. Byram, 6 v. Continental L. Ins. Co., 94 U. S. 535,

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