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FOREIGN CORPORATIONS.-(See also CORPORATIONS (PRIVATE); INTERSTATE COMMERCE; RECEIVERS; STOCK; STOCKHOLDERS; TAXATION.)
(a) Discrimination, 366.
(b) Citizenship for Purposes of Jurisdiction, 367.
(c) Standing in Courts, 367.
(a) State Taxation and Interstate
VIII. Actions By and Against For-
(c) Service upon Officer Casually in
1. Daly v. National Life Ins. Co., 64 Ind. 1. Definition in New York Code. -A "domestic corporation" is a corporation created under or by the laws of the State, or located in the State and created by or ander the laws of the United States, or
(d) Who are Proper Agents for Service of Process, 386
(e) Miscellaneous Matters Relating to Service of Process, 389. 2. Judgments Against, 390. 3. Attachment and Garnishment, 393. (a) In General, 393.
(b) Practice and Pieading, 396. (c) Consolidated Corporations. 396. (d) Exemption Laws. 396. 4. Limitation of Actions, 397.
5. Actions by or against Non-resi dents. 399.
6. Removal of Causes, 401.
7. Incidents of Actions, 402
IX. Consolidation of Foreign Cor-
X. Dissolution of Foreign Corpora-
2. Protection of Home Creditors. 405.
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
by or pursuant to the laws in force in the Colony of New York before the 19th day of April, in the year 1775. Every other corporation is a foreign corporation. New York Code of Civil Procedure, 3343.
Whether, after organization, it could
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 in fraud of the rights of the foreign corporation, quære.
1. Lehigh Valley Coal Co., v. Hamblen (Ill.), 23 Fed. Rep. 225.
If the persons composing a corporation formed under the laws of one State should become also incorporated under the laws of another State, the two organizations will constitute separate and distinct corporate bodies, and the one cannot form an integral part of the other; and the corporation of the one State cannot enjoin the formation of a new corporation in the same State under a similar name, to prevent an injury to the business of buying and selling of the foreign corporation in such State. If a domestic corporation, after its members have procured an incorporation of themselves in a sisterState, by the same name, should abandon the business, practically, in the original State, and there keep its organization only in name to prevent others from transacting the same business, it cannot, in equity, maintain a bill to enjoin the formation of another corporation in the original State by a similar name, to engage in the same business, when none of its trade-marks are sought or intended to be used by the latter. Drummond Tobacco Co. v. Randle, 114 Ill. 412.
2. Lafayette Ins. Co. v. French, 18 How. (U.S.) 404; Medway Cotton Manf. v. Adams, 10 Mass. 360; New York African Soc. v. Varick, 13 Johns. (N. Y.) 38. See also Inhabitants v. String, 5 Halst. (N. J.) 323.
Sweetland, 14 Abb. Pr. (N. Y.) 240; Runyan v. Coster, 14 Pet. (U. S.) 122; Tombigbee R. Co. v. Kneeland, 4 How. (U. S.) 16; Ex parte Schollenberger, 95 U. S. 369; Bank of Augusta v. Earle, 13 Pet. (Ŭ. S.) 519, 521; Insurance Co. v. Francis, Ir Wall. (U. S.) 216; Covington v. Shepherd, 20 How. (U. S.) 232; Tioga R. Co. v. Blossburg, etc., R. Co., 20 Wall. (U. S.) 148; McCall v. Byram Mfg. Co., 6 Conn. 428; Newport, etc., Bridge Co. v. Woolley, 78 Ky. 523; s. c., 7 Am. & Eng. R. R. Cas. 18.
In Merrick v. Van Santvoord, 34 N. Y. 218, the court observed: A corporation is an artificial being, and has no dwelling either in its office, its warehouses, its depots, or its ships. Its domicil is the legal jurisdiction of its origin, irrespective of the residence of its officers or the place where its business is transacted. It retains that domicil until it ceases to exist."
A corporation may be deemed to have two domicils when a just construction of a statute so requires. Atty.-Gen. v. Bay State Mining Co., 99 Mass. 163; Rickes v. American Loan, etc., Co., 140 Mass. 350. See also Carron Iron Co. v. MacLaren, 5 H. L. Cas. 416.
But a corporation can have a construc tive residence, so as to subject it like a natural person, to be charged with taxes and be submitted to a special jurisdiction. Cromwell 7. Ins. Co., 2 Rich. (S. Car.) 512; Glaize v. S. Carolina R. Co.,1 Strobh. (S. Car.) 70.
"It may be maintained that a corporation may have two domicils. In support of this view are cited cases in which it has apparent.y been decided that a corporation can, for the purpose of being sued, have a domicil in each of two countries. Such cases are not decisive, for liability to be sued does not, in the case of a corporation any more than of an individual, depend upon domicil. They may each be sued in the courts of this country, if amenable to the process of our courts. There is in this respect no difference between a foreign individual and a foreign corporation, except
3. See, generally, CORPORATIONS (PRIVATE); DOMICIL OF CORPORATIONS. The domicil of a corporation is determined by the place in which it transacts business, not by that where the bulk of its property lies, nor where its chief officers reside. It has its domicil in the State whose legislature has created it. Baltimore, etc., R. Co. v. Glenn, 28 Md. 287; Merrick v. Van Santvoord, 34 N. Y. 208; Crowley v. Panama, etc., R. Co., 30 Barb. (N. Y.) 99; International Life Ins. Co. v.
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.- 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, 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 process both in his person and in his property, whilst a corporation domiciled abroad can (it is conceived) only be amenable to process through its property and through its agents. On the whole, the better opinion seems to be that a corporation has, following the analogy of an individual, one principal domicil, at the place where the centre of its affairs is to be found, and that the other places, in which it may have subordinate offices, correspond, as far as the analogy can be carried out at all, to the residence of an individual." Dicey on Domicil, p. 110. See also, post, this title, ACTIONS BY AND AGAINST.
1. See, ante, this title, POWERS, COMITY THE BASIS OF RECOGNITION.
Duer (N. Y.), 648; McCluer v. Manchester, etc., R. Co., 13 Gray (Mass.), 124; Kennebec Co. v. Augusta Ins., etc., Co., 6 Gray (Mass.), 204; Lathrop v. Commercial Bank, 8 Dana (Ky.), 114; Hadley v. Freedman's Sav., etc., Co., 2 Tenn. Ch. 122; Williams v. Creswell, 51 Miss. 817; Frazier v. Willcox, Rob. (La.) 518; Baltimore, etc., R. Co. v. Glenn, 28 Md. 287; Newburg Petroleum Co. v. Weare, 27 Ohio St. 343; Ohio Life Ins., etc., Co. v. Merchants' Ins., etc., Co., II Humph. (Tenn.) 22; Wood, etc., Mining Co. v. King, 45 Ga. 34; Hoyt v. Thompson, 19 N. Y. 207; Bard v. Poole, 12 N. Y. 495; Western 7. Genesee Mut. Ins. Co., 12 N. Y. 258; Hoyt v. Shelden, 3 Bosw. (N. Y.) 267; Baltimore, etc., R. Co. v. Pittsburg, etc., R. Co., 17 W. Va. 812; Chapman v. Pittsburg, etc., R. Co., 18 W. Va. 184; s. c., 9 Am. & Eng. R. R. Cas. 484: State Treasurer v. Auditor-General, 46 Mich. 224; s. c., 13 Am. & Eng. R. R. Cas. 296. See also authorities cited in succeeding notes.
2. A corporation is a creature of the sovereign will, and, when created by one sovereignty, it can operate within another's limits only by the latter's express permission or by permission implied from prinples of comity, but such permission does not make it any the less a foreign corporation. Cooley, J.. in State Treasurer v. Auditor-General, 46 Mich. 224; S. c., 13 Am. & Eng. R. R. Cas. 296.
3. The principles, and those which follow and are collateral to them, are so thoroughly well settled, and so constantly repeated in the authorities, that the citation of further references is deemed unnecessary. They form the basis of recognition of foreign corporations in all jurisdictions, and are mentioned or impliedly recognized in nearly all cases where foreign corporations are litigating parties.
4. Bank of Augusta v. Earle, 13 Pet. (U. S.) 519; Tombigbee R. Co. v. Kneeland, 4 How. (U. S.) 16; New York Floating Derrick Co. v. New Jersey Oil Co., 3
5. Erie R. Co. v. State, 31 N. J. Law 531; State v. American Exp. Co., 7 Biss. (C. C.) 230; Canada Southern, etc., R. Co. v. Gebhard, 109 U. S. 537. See, post, CONSTITUTIONAL RIGHTS.
6. Paul v. Virginia, 8 Wall. (U. S.) 181; Runyan v. Coster's Lessee, 14 Pet. (U. S.) 129; Covington v. Shepherd, 20 How. (U. S.) 232; Insurance Co. v. Francis, 11 Wall. (U. S.) 216; Tioga, etc., R. Co. v. Blossburg, etc., R. Co., 20 Wall. (U. S.) 148; Plimpton v. Bigelow, 93 N. Y. 598; Merrick v. Van Santvoord, 34 N. Y. 208; Stevens v. Phoenix Ins. Co., 41 N. Y. 150; Chafee v. Fourth Natl. Bank, 71 Me. 539: Baltimore, etc., R. Co. v. Glenn, 28 Md. 287; Myer v. Liverpool, etc., Ins. 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. (U.S.) 519.
In Christian Union 7. Yount, 101 U. S. 352, Harlan, J., stated the rule as follows: "In harmony with the general law of comity obtaining among the States composing the Union, the presumption should be indulged that the corporation of one State, not forbidden by the law of its being, may exercise within any other State the general powers conferred by its own charter, unless it is prohibited from so doing either in the direct enactments of the latter State, or by its public policy to be deduced from the general course of its legislation, or from the settled adjudications of its highest court. See also Tombigbee R. Co v. Kneeland. 4 How. (U. S.) 16; Cowell v. Springs Co., 100 U. S. 55; Williams v. Creswell, 51 Miss. 817; Silver Lake Bank v. North, 4 Johns. Ch. (N. Y.) 370; Bard v. Poole, 12 N. Y. 495; Merrick . Van Santvoord, 34 N. Y. 208; British Am. Land Co. v. Ames, 9 Metc (Mass.) 391; Martin v. Mobile, etc., R. Co.. 7 Bush (Ky.), 116: Guaga Iron Co. v. Dawson, 4 Blackf. (Ind.) 202; Leasure v. Union Mut. Life Ins. Co., 91 Pa. St. 491; Dodge v. City of Council Bluffs, 57 Iowa, 560; Frazier 7. Willcox, 4 Rob. (La.) 517; Life Asso. v. Levy, 33 La. Ann. 1203; Kennebec Co. v. Augusta Ins Co., 6 Gray (Mass.), 204; Flash v. Conn, 16 Fla. 428; Newburg Petroleum Co. v. Weare, 27 Ohio St. 343: Western Union Tel. Co. Mayer, 28 Where the power of a fire insurance comOhio St. 521; Bank of Washtenaw 7. pany is revoked by the commissioner of Montgomery, 3 Ill. 422; Santa Clara Fe- insurance, it cannot thereafter recover male Acad. v. Sullivan, 116 Ill. 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,
In Leasure v. Union Mut. Ins. Co., 91 Pa. St. 491, a local statute of mortmain was held enforceable against foreign corporations. See also Leasure v. Hillegas, 7 S. & R. (Pa.) 313; Runyan Coster, 14 Pet. (U. S.) 122; Methodist Church v. Remington, 1 Watts (Pa.), 219; Miller v. Porter, 53 Pa. St. 292; Grant v. Henry Clay Coal Co., 80 Pa. St. 208.
Wood Hydraulic, etc., Co. z. King, 45 Ga. 34; Home Ins. Co. v. Davis, 29 Mich. 238; Kerchner v. Gettys. 18 S. Car. 525.
2. Story's Conflict of Laws. § 36; Bank of Augusta 2. Earle, 13 Pet (Ü. S.) 589; Thompson v. Waters, 25 Mich 224; State v. McCullough, 3 Nev. 218. See Schibsby v. Westenholz, L. R. 6Q. B. 159; Williams v. Jones, 13 M. & W. 633; Warrender v. Warrender, 2 Cl. & Fin. 529; s. c., 9 Bligh, 115.
3. Cowell v. Springs Co., 100 U. S. 59; Christian Union v. Yount, 101 U. S. 356; Stevens v. Pratt, 101 Ill. 206; Thompson v. Waters, 25 Mich 224; Bank of Augusta v. Earle, 13 Pet. (U. S.) 594; Merrick v. Van Santvoord, 34 N. Y. 221.
In Bank of Augusta v. Earle, 13 Pet. (U. S.) 592, the court observes: "When ever a State sufficiently indicates that contracts which derive their validity from its comity are repugnant to its policy, or are considered as injurious to its interests, the presumption in favor of its adoption can no longer be made."
(b) 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
payments fall due in advance. Otherwise it would be able, in a measure, were it inclined, to evade fear from future statutes by long policies. Am. Ins. Co. v. Stoy, 41 Mich. 385, 402.
Conn. 428; State v. McCullough, 3 Nev. 218; Land Grant R. Co. v. Coffee City, 6 Kan. 252; Marsh v. Bennett, 5 McLean (C. C.), 117: Balt. & Ohio R. Co. v. Glenn, 28 Md. 287; Merrick v. Van Santvoord. 34 N. Y. 208; Blackstone Mfg. Co. v. Inhabitants of Blackstone, 13 Gray (Mass.), 488; Am. Mut. L. Ins. Co. v. Owen, 15 Gray (Mass.), 491; Washington Co. Ins. Co. v. Chamberlain, 16 Gray (Mass.), 165; Hutchins v. New England Coal-Mining Co., 4 Allen (Mass.), 580; Folger v. Columbian Ins. Co., 99 Mass. 267, 271; British-Am. Land Co. v. Ames, 6 Metc. (Mass.) 391; Elston v. Pigott, 94 Ind. 18; s. c., 8 Am. & Eng. Corp. Cas. 185.
In Paul v. Virginia, 8 Wall. (U. S.) 168, it was held that a State may practically exclude foreign corporations. It may restrict them to particular localities, or exact such security for the performance of their contracts as will best promote the public interests. The whole matter rests in the discretion of the State. See also Western Union Tel. Co. v. Mayer, 28 Ohio St. 539, and cases cited.
1. Blair v. Perpetual Ins. Co., 10 Mo. 564 A State has the right entirely to exclude such corporations from its territory, or, having given a license, to revoke it, in its discretion, for good cause, or without cause; the motive or intention of the State in so doing is not open to inquiry. The company has no constitutional right to transact its business in such State, and hence its exclusion therefrom for whatever cause violates no constitutional right. Doyle v. Continental Ins. Co., 94 U. S. 535. See also, as to power of State to prohibit foreign corporation to contract, Paul v. Virginia, 8 Wall. (U. S.) 168; Lafayette Ins. Co. v. French, 18 How. (U. S.) 404; Ducat. Chicago, 10 Wall. (U. S.) 410; Liverpool Ins. Co. v. Massachusetts, 10 Wall. (U. S.) 566; Warren Mfg. Co. v. Etna Ins. Co., 2 Paine (C. C.), 501; Home Ins. Co. v. Davis, 29 Mich. 238; Commonwealth v. Milton, 12 B. Mon. (Ky.) 212; Phoenix Ins. Co. v. Commonwealth, 5 Bush (Ky.), 68; Gill's Adm'r v. Kentucky, etc., Gold Mining Co., 7 Bush (Ky.), 635; Matthews v. Theological Sem., 2 Brewst. (Pa.) 541; Fire Dept. v. Noble, 3 E. D. Smith (N. Y.), 449; Slaughter v. Commonwealth, 13 Gratt. (Va.) 767; Western Union Tel. Co. v. Mayer, 28 Ohio St. 521; Milnor v. N. Y. & N. H. R. Co., 53 N. Y. 363; People v. Fire Asso. of Phila., 92 N. Y. 311; Taten v. Wright, 23 N. J. L. 429; St. Clair v. Cox, 106 U. S. 350; s. c.. I Am. & Eng. Corp. Cas. 19; Ohio, etc., R. Co. v. Wheeler, 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 State. 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. tion 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. (Ill.) 420; Willard v. People, 4 latter result is here accomplished. Dovle Scam. (Ill.) 461; McCall v. Byram, 6 v. Continental L. Ins. Co., 94 U. S. 535,
A license to a foreign corporation to enter a State does not involve a permanent right to remain. Subject to the laws and Constitution of the United States full power and control over its territories, its citizens, and its business belong to the State. And even where the condition requires an agreement which would be void as contrary to the United States Constitution, e.g., agreement never to resort to the Federal courts, still the State may legally exclude therefrom all foreign corporations which refuse to so agree with the State. Doyle v. Continental L. Ins. Co., 94 U. S. 535.