absence of power to act, the attempted acts and contracts are void.1 (g) Estoppel-Ultra Vires.-As between a foreign corporation and third parties, the corporation will be bound by its own acts although ultra vires.2 (h) Miscellaneous.—In complying with the conditions of such statutes, it is not necessary that the name of the particular agent be inserted in the certificate.3 The conditions apply, in Massachusetts, not only to agents acting under some general and formal appointment, but also to such as may be employed only occasionally or in a single transaction; 4 but, in Indiana, they do not apply Bank v. Matthews, 98 U. S. 621; Cowell v. Springs Co., 100 U. S. 55; U. S. Mortgage Co. v. Sperry (Ill.), 24 Fed. Rep. 838; Barnes v. Suddard, 117 Ill. 237; Alexander v. Tolleston Club of Chicago, 110 Ill. 65; s. c., 8 Am. & Eng. Corp. Cas. 239: State v. Woodward, 89 Ind. 110. See Williams v. Hinksmeister (Pa.), 26 Fed. Rep. 889. 1. Abbott v. Omaha Smelting Co., 4 Neb. 416; Leazure v. Hillegas, 7 Serg. & Rawle (Pa.), 313; Hough v. Cook Co. Land Co., 73 Ill. 23; Baird v. Bank, II Serg. & Rawle (Pa.), 411; Cin. Mut. Health Assoc. v. Rosenthal, 55 Ill. 85; Mokelumne Hill, etc., Mining Co. v. Woodbury, 14 Cal. 424; Leasure v. Union Mut. Life Insurance, 91 Pa. St. 491. 2. N. E. Ins. Co. v. Robinson, 25 Ind. 536; Bissell v. Mich. Southern, etc., R. Co., 22 N. Y. 258; York & Penn. Line Co. v. Urnans, 17 How. (U. S.) 30; Blackburn v. Selma, etc.. R. Co., 2 Flip. (U. S.) 525; Ehrman v. Teutonia Life Ins. Co. (Ark.), 1 Fed. Rep. 471. Where a foreign corporation has failed to comply with the statute as to the appointment of an agent, but is actually doing business in the State and is represented by an agent, the corporation is estopped to deny the validity of service upon him. Hagerman et al. v. Empire State Co., 97 Pa. St. 534. See Funk . Anglo-American Ins. Co., 27 Fed. Rep. 336. Where a corporation, ab initio, is unable to take property, a deed will not operate as an estoppel. To do so, it must be valid. Fowler 7. Scully, 72 Pa. St. 457; Abbott z. Omaha Smelting Co., 4 Neb. 416; Starkweather v. Am. Bible Soc., 72 Ill. 50; Jackson v. Cory, 8 Johns. (N. Y.) 385; Lowell v. Daniels. 2 Gray (Mass.), 161; McGregor 7. Wait, 10 Gray (Mass.), 72; Pierce v. Chace, 108 Mass. 254; Merriam v. Boston, etc., R. Co., 117 Mass. 241; Pells v. Webquish, 129 Mass. 469; Fairtitle v. Gilber, 2 T. R. 169; 2 Bigelow Estoppel, ch. 9. In Bank of U. S. v. Owens, 2 Pet. (U. S.) 538, it was distinctly laid down that contracts in violation of the provisions of a statute, though not expressly made void by it, are null and will not be enforced. In Fowler v. Scully, 72 Pa. St. 457, a mortgage was given to a national bank to secure future advances, and afterwards the mortgagor made an assignment for the benefit of creditors. Held, that the assignor might resist the mortgage on the ground of its invalidity, and that no action could be sustained on it; as, under the Currency Act, no other than personal security can be taken by a bank for a loan. See also Keen v. Coleman, 39 Pa. St. 299; Merriam v. Boston, etc., R. Co., 117 Mass. 241; Caffrey v. Dudgeon, 38 Ind. 512; Steadman v. Duhamel, 1 C. B. 888; Fairtitle v. Gilber, 2 T. R. 169; In re Comstock, 3 Sawy. (U. S.) 218; Semple v. Bank of British Columbia, 5 Sawy. (U. S.) 88. 3. In Goodwin v. Colorado Mort. Investment Co. of London (Limited), 110 U. S. 1; s. c., 8 Am. & Eng. Corp. Cas. 147, it was held that a certificate signed and acknowledged by the president and secretary of a foreign corporation, and filed with the secretary of state and in the office of the recorder of deeds for the county in which is proposed to carry on business, stating that "The principal place where the business shall be carried on in the State of Colorado shall be at Denver in the county of Arapahoe, in said State, and that the general manager of said corporation, residing at the said principal place of business, is the agent upon whom process may be served in all suits that may be commenced against such corporation," is a sufficient compliance with the requirements of the constitution of Colorado in that respect. It was not necessary to give the name of the particular person who happened at the date of the certificate to fill that position. 4. Hartford Ins. Co. v. Matthews, 102 Mass. 225. to persons engaged in appointing agents to do business for the corporation.1 The penalties of fine and imprisonment imposed on foreign lifeinsurance companies doing business in Missouri, without a certifi cate, are visited upon the resident agent. The naming of certain penalties implies the exclusion of others.3 So far as concerns the liability of the agent to the penalty prescribed in Illinois, it matters not where the contract of insurance was made; what the legis lature desired to accomplish, was to prevent them being made at all. In actions for penalties, the plaintiff must show facts bringing the case clearly within the terms of the statute, fairly and reasonably construed. Under the Pennsylvania statute, agents taking action relating to risk, who have not complied with the conditions imposed upon agents of foreign insurance companies, are indictable. The Wisconsin statute imposing a forfeiture is penal; and the United States supreme court has no jurisdiction, under the Judiciary Act, of an action brought by the State of Wisconsin against a foreign insurance company upon a judgment for the penalty imposed by that statute." 1. Morgan v. White, 101 Ind. 413. 2. State v. N. Y. Life Ins. Co., 81 Mo. 89. 3. In King v. National Mining, etc., Co., 4 Mont. I; s. c., 4 Am. & Eng. Corp. Cas. 14, it was held that foreign corporations are not prohibited from doing business in the Territory by failure to comply with the requirements of section 46 of the General Corporation Laws. Although the provisions of said section are mandatory in terms, the next following section limits their effect by prescribing the penalties for such failure. Certain penalties being prescribed, they must be held to be the only ones,. under the doctrine Expressio unius est exclusio alterius. 4. In Pierce v. State of Illinois, 106 III. II; s. c., 3 Am. & Eng. Corp. Cas. 8, it is held that a statute regulating the admission of an insurance company to transact business in Illinois is constitutional. It is competent for the legislature to declare all contracts of insurance made by a citizen of that State with a foreign insurance company having no right to do business there, void, on the ground of being contrary to the public policy of the State; and, in furtherance of the same object, the legislature may declare it a penal offence for any one to do anything there, whether acting on behalf of the insurer or the insured, by way of aiding in effecting insurance in such companies not qualified to do such business under Illinois laws. 5. Allen v. Stevens, 29 N. J. L. 509; Nerona C. C. Co. v. Murtaugh, 50 N. Y. 314. "The conditions upon which the penalty attaches must be affirmatively shown to have existed.' Comrs. of Pilots v. Vanderbilt, 31 N. Y. 265. "If the penalty is imposed for conduct or neglect in a particular capacity, it must be stated that the defendant was acting in that capacity." Trowbridge v. Baker, I Cow. (N. Y.) 251; Abb. Tr. Ev. 771. 6. In List v. Commonwealth, 118 Pa. St. 322, defendant, “inspector" of risks for a foreign insurance company not authorized to do business in Pennsylvania, called on parties in Pittsburg, in that State, gave them his card as inspector, together with the company's form of premium note, and its financial statement, officers' names, etc. He also requested permission to inspect buildings of one W., for the purpose of enabling his company to place a policy of insurance thereon. He did inspect certain other buildings, and reported to his company, which thereupon issued a policy and received the premiums. Held, he was "agent" and "took action," and was indictable. 66 7. Wisconsin Rev. Stat. § 1920, imposing a forfeiture of $500 a month upon any insurance company of another State doing business in Wisconsin without having deposited with the proper officers a full statement of its property and business during the preceding year, such forfeiture to be recovered in an action in the name of the State, is strictly a penal statute, punishing an offence against the State; and therefore, under the United States Judiciary Act, 1789, ch. 20, § 13 (R. S. § 687), giving the 4. POWERS AS TO MEETINGS-The right of corporations to hold directors' meetings outside the home State is commonly recognized,1 as acts done outside of such State by or for a corporation are Licenses Under Wisconsin Statute.-The Wisconsin statute, $ 1954, as to foreign life or accident insurance companies, and 1920 as to foreign fire insurance companies, imposing penalties for non-compliance with their provisions, refer to foreign licensed companies. Both sections make the companies non-complying liable to have their licenses or certificates revoked. State v. Citizens' Ins. Co., 71 Wis. 411. Common Law Included by Implication in Vermont Statute. Vermont Laws, 1874, Act I, § 2, prohibited fire-insurance companies from transacting business in Vermont unless such company was responsible by "the laws of the State" in which said company or companies were situated, for the acts and neglects of its agents. Held, that " the laws of the State," as here used, were not restricted to statute laws, but included as well the common law. The design was to secure the old common-law principle of responsibility for acts and neglects of agent within the scope of his authority, and to prevent its annihilation by the common clause in policies seeking to make the insurance agent the agent, not of the company, but of the assured. Lycoming Fire Ins Co. v. Wright (Vt. 1888), 12 Atl. Rep. 107. Mandamus to Superintendent of Insurance. Where a foreign insurance company, tendering compliance with the laws of Ohio, applies for authority to transact its business within that State, the superintendent of insurance has no power, in the exercise of a mere arbitrary discretion, to refuse such admission. It is within the province of such superintendent, in considering the application of such insurance company for admission to transact business within the State, to inquire into its financial soundness, and if, upon such inquiry, made in good faith, he is not satisfied with its financial soundness, he is invested with discretion to refuse such admission; and his exercise of such discretion will not be controlled by mandamus. State of Ohio 2. Moore, 39 Ohio St. 486; s. c., 5 Am. & Eng. Corp. Cas. 3. Quo Warranto to Insurance Commissioner. —Quo warranto is the proper proceeding to try the right of a foreign corporation to carry on business in Minnesota. The insurance commissioner, in issuing certificates to foreign corporations, acts in a ministerial capacity. His determination is not judicial and final. State v. Fidelity, etc., Ins. Co. (Minn., Dec. 29, 1888), 41 N. W. Rep. 108. 1. Galveston R. Co. v. Cowdrey, 11 Wall. (U. S.) 459; Bellows v. Todd, 39 Iowa, 209; Arms v. Corant, 36 Vt. 745; Bassett v. Monte Christo M. Co., 15 Nev. 293; Ohio, etc., R. Co. v. McPherson, 35 Mo. 13; Wright v. Bundy, II Ind. 398; McCall v. Byram Mfg. Co., 6 Conn. 428; Wood Hydraulic Hose Mfg. Co. v. King, 45 Ga. 34; Smith v. Alvord, 63 Barb. (Ñ. Y.) 415; Saltmarsh v. Spaulding (Mass. 1888), 20 Am. & Eng. Corp. Cas. 514. Compare Hiller v. Parrish, 14 N. J. Eq. 380; Ormsby v. Vermont Copper Mfg. Co., 56 N. Y. 623. Where a corporation is organized for the purpose of doing business outside the State, and its contracts are made and business conducted in another State, and its by-laws, while they provide for an annual meeting and election of officers in the former State, provide also for directors' meetings for business in the latter State, the appointment of agents and the filling of vacancies in the board of directors there, a vote authorizing certain officers to mortgage land in the latter State may properly be taken by the directors in said State. Saltmarsh v. Spaulding (Mass. 1888), 20 Am. & Eng. Corp. Cas. 515. The court said: "It would certainly be an extraordinary anomaly if, while, by the comity prevailing between the States, the corporation was allowed to conduct its business, it could disavow the acts of those whom it has appointed to direct its business here on the ground that the votes by which they were done were passed here. The case cited of Miller v. Ewer, 27 Me. 509, to sustain the statement in Ang. & A. Corp. § 274, on which the demandant relies, only holds that a corporation established under a charter of the State of Maine could not organize in another State, and that the attempt to do so was void, but recognizes fully that a corporation duly organized, and acting within the valid unless they are especially restricted. This right does not extend, however, to meetings of stockholders. Where a corporation has been chartered and organized under the laws of two States, it may lawfully hold its meetings and transact its business in either. 3 5. POWERS AS TO REAL ESTATE-The power of foreign corporations to hold real estate depends, first, upon the same general considerations which affect all corporations, and, second, upon the laws and policy of the State where the land is situated. The principle is recognized as inviolable that the local law must regulate the mode of acquiring and the right to hold land. In the absence of re limits of the State granting the charter, may, by agents duly constituted, act and contract without the limits of the State." 1. Bank of Augusta v. Earle, 13 Pet. (U. S.) 519; Hutchins v. New England Coal. Mfg. Co., 4 Allen (Mass.), 580; Blair v. Perpetual Ins. Co., 10 Mo. 559; New York Floating Derrick Co. v. New Jersey Oil Co., 3 Duer (N. Y.), 648; Tombigbee R. Co. v. Kneeland, 4 How. (U. S.) 16; Wood Hydraulic Hose Mfg. Co. v. King, 45 Ga. 34: Dodge v. City of Council Bluffs, 57 Iowa, 560. See Muneford v. Am. Life Ins., etc., Co., 4 N. Y. 463. Where a franchise is granted without restriction, it may be exercised by the corporation wherever it may wish. Merrick v. Van Santvoord, 34 N. Y. 208; Kerchner 7. Gettys, 18 S. Car. 521. 2. Aspinwall v. Ohio, etc., R. Co., 20 Ind. 492; Freeman 7. Machias Waterpower Co., 38 Me. 343; Ormsby v. Vermont Copper Mfg. Co., 56 N. Y. 623; Plimpton v. Bigelow, 93 N. Y. 592; Ohio, etc., R. Co. v. McPherson, 35 Mo. 13; Camp v. Byrne, 41 Mo. 525; Land Co. v. Laigle,59 Tex. 339; Heath v. Silverthorne, etc., Co., 39 Wis. 146; Bellows v. Todd, 39 Iowa, 209; Miller v. Ewer, 27 Me. 509 fexplained in Saltmarsh v. Spaulding (Mass. 1888), 20 Am. & Eng. Corp. Cas. 514). Compare Copp v. Lamb, 12 Me. 312. its A Corporation dwells in the place where business is transacted. Bank of Augusta v. Earle, 13 Pet. (U. S.) 519; Taylor v. Gas & Coke Co., 11 Ex. 1; Connecticut, etc., R. Co. v. Cooper, 30 Vt. 476; Stout v. Sioux City, etc., R. Co., 3 McCrary (C. C.), 1; Plimpton v. Bigelow, 93 N. Y. 592. In State, etc., v. Milwaukee, etc., R. Co., 45 Wis. 579, the court observed: "It is the duty of a corporation to keep its principal Place of business, it books and records, and its principal offices within the State which incorporated it, to an extent necessary to the fullest jurisdiction and visitorial power of the State and its courts, and the efficient exercise thereof in all proper cases which concern said corporation." Compare Morawetz Corp. (2d. Ed.) § 361. In has been held that, if all the shareholders acquiesce in the holding of a meeting outside of the State limits, acts done thereat would be perfectly valid. Camp v. Byrne, 41 Mo. 525. Field, J., said, in St. Clair v. Cox, 106 U. S. 350: "All that there is in the legal residence of a corporation in the State of its creation consists in the fact that by its laws the corporators are associated together, and allowed to exercise, as a body, certain functions, with a right of succession in its members." 3. In Covington, etc., Bridge Co. v. Mayer, 31 Ohio St. 325, the court observed: "We are satisfied that this corporation, having been chartered and organized under the laws of both States, might lawfully hold its meetings and transact its corporate business in either State. To hold otherwise would be to make every corporate act of the company ineffectual unless repeated in both States." In Graham v. Boston, etc., R. Co., 118 U. S. 161, it was held that a railroad company composed of distinct corporations chartered by the legislatures of different States, having one set of shareholders and a united capital stock, has a domicil in each State, and a business meeting held in any one State will bind the corporation as to its property everywhere. Blackburn v. Selma, etc., R. Co., 2 Flip. (C. C.) 525; Ohio, etc., R. Co. v. Wheeler, 66 U. S. 286; Bridge Co. 7. Mayer, 31 Ohio St. 317; State v. Northern Central R. Co., 18 Md. 193; Sprague v. Hartford, etc., R. Co., 5 R. I. 233. 4. See CORPORATIONS (PRIVATE), Powers as to Real Estate, 4 Am. & Eng. Encyc. of Law, 230 et seq. 5. In American, etc., Christian Union v. Yount, 101 U. S. 352, the court observed: In harmony with the general law of comity obtaining among the States 64 strictions in its charter powers, and limitations in the local law, the implied right of foreign corporations to acquire and hold real estate is everywhere recognized. It is the policy of the United composing the Union, the presumption should be indulged that a 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 legis. lation or from the settled adjudications of its highest court." It was accordingly held that while it is a principle as inviolable as it is fundamental and conservative that the right to hold land and the mode of acquiring title to land must depend altogether upon the local law of the territorial sovereign, the presumption will be, unless rebutted as above explained, that a foreign corporation may exercise in a State the rights to acquire real estate. See also Binney's case, 2 Bland Ch. (Md.) 147. The courts of the State where the lands are must determine for themselves whether the charter of the foreign corporation enables it to take or hold real estate in such State; and decisions of tribunals without the State are authority only from the reasoning therein contained. Boyce v. St. Louis, 29 Barb. (N. Y.) 650, citing Birthwhiste v. Vardill, 7 Clark & Fin. 895, where it was held that the capacity of a child to inherit English lands as heir must be determined by the English law, and not by the Scotch law which recognized the child as legitimate though he was born before the marriage of his parents, citing also Story Confl. Laws, SS 428, 430. 474; Nicholas v. Leavitt, 4 Sandf. (N. Y.) 286; Hosford v. Nichols, 1 Paige (N. Y.), 226; Chapman z. Robertson, 6 Paige (N. Y.), 627. In an action of ejectment by a plaintiff tracing his title to certain lands in Utah by mesne conveyances, through a certain corporation organized under the laws of California, it was not necessary that he should show by the laws of California that said corporation was authorized to hold real estate, the rights of a corporation to hold and convey property not being determined under the laws of the State under which it is organized, but by the laws of the government in which it is doing business and in which it acquires the property. Tarpey v. Deseret Salt Co. (Utah Ty. 1888), 17 Pac. Rep. 631. The court say: This must be true, as a result of the rule that it is a question only between the corporation and the government," etc. 1. Am. Christian Union v. Yount, IOI U. S. 352; Cowell v. Colorado Springs Co., 100 U. S. 55; Runyan v. Coster, 14 Pet. (U. S.) 122, 130; New Hampshire Land Co. 7. Tilton (N. H.), 19 Fed. Rep. 73; Thompson v. Waters, 25 Mich. 214; United States Trust Co. v. Lee, 73 Ill. 142; Columbus Buggy Co. v. Graves, 108 Ill. 459; Barnes v. Suddard, 117 Ill. 237: Northern Trans. Co. v. Chicago, 7 Biss. (C. C.) 45; New York Dry Docks v. Hicks, 5 McLean (C. C.), III; Whitman Mfg. Co. v. Baker, 3 Nev. 386; National Trust Co. v. Murphy, 30 N. J. Eq. 408; Lumbard v. Aldrich, 8 N. H. 31; State v. Boston, etc., R. Co., 25 Vt. 433; Claremont Bridge Co. v. Boyce, 42 Vt. 736; Page v. Heineberg, 40 Vt. 81; American Bible Society v. Marshall, 15 Ohio St. 541; State v. Sherman, 22 Ohio St. 433; Leazure v. Hillegas, 7 S. & R. (Pa.) 313; Baird v. Baird, 11 S. & R. (Pa.) 411; Thompson v. Swoope, 24 Pa. St. 474; Silver Lake Bank v. North, 4 Johns. Ch. (N. Y.) 370; Merrick v. Van Santvoord, 34 N. Y. 214; Henriques v. Dutch East India Co., 2 Ld. Raym. 1533; 2 Kent Com. (12th Ed.) 283, note; Elston v. Piggott, 94 Ind. 14; s. c., 8 Am. & Eng. Corp. Cas. 185. In Cowell v. Colorado Springs Co., 100 U. S. 55. it was held that, by the general comity which, in the absence of positive directions to the contrary, obtains throughout the States and Territories of the United States, corporations created in one State or Territory are permitted to carry on any lawful business in another State or Territory, and to acquire, hold, and convey property there, equally as individuals. It was said, in Michigan, respecting an Indiana corporation, that its power to take and hold Michigan land depended first on the Indiana law, and then by the Michigan laws and the policy indicated thereby. The mere right of such corporation to purchase and sell property not being in its nature strictly a franchise, will be recognized and protected in another State, subject only to the qualification that the enjoyment and exercise of such rights shall not be contrary to the laws or settled policy of the latter State, or prejudicial to its interests or those of its citizens. affirmative enabling act of the State is not necessary to enable a foreign corporation to take lands in such State. Held, accordingly, that the Indiana corporation An |
