« AnteriorContinuar »
veyance all of the property, assets, fran. , for the following reasons, to wit: (1) That ehises, and privileges of the Boise Railroad the affidavit of attachment shows upon its Company to the Idaho Railway, Light, & face that the debt, upon which action is Power Company. This being done, the brought, was secured by pledge of stock necessity for the existence of the Boise of the Boise Railroad Company, and fails Railroad Company as a corporation ceased, to show that such security has become and thereafter the annual license tax of valueless. (2) That the defendant Idaho said company was not paid to the state by Railway, Light, & Power Company is not a either the Boise Railroad Company or the nonresident of the state of Idaho, within Idaho Railway, Light, & Power Company, the meaning of the attachment law, but is and on the 1st of December, 1913, the char- a foreign corporation that has complied ter of the said Boise Railroad Company was with the Constitution and all the laws of forfeited to the state.
Idaho respecting foreign corporations, and, At the date of the commencement of this as such, by the terms of such statutes is action in the trial court, the capital stock entitled to all the rights and privileges, of the Boise Railroad Company, which had and subject to the laws applicable to dotheretofore been pledged as collateral se- mestic corporations. (3) That the undercurity for the payment of the respondent's taking for attachment is insufficient. note, was the stock of a corporation which It was conceded, upon the argument of had forfeited its charter and conveyed all this cause, that the appellant corporation of its physical properties, rights, assets, had fully complied with the Constitution and franchises to the appellant corporation and laws of this state respecting foreign herein. The Idaho Railway, Light, & Power corporations. That being true, the appellant Company, by its officers, executed a mort- insists that it is exempt from attachment, gage or deed of trust to the Guaranty Trust under the laws of this state authorizing the Company of New York, securing an issue attachment of the property of nonresidents. of bonds aggregating $30,000,000, which Section 4302, Rev. Codes, as amended by said mortgage or deed of trust covered all Sess. Laws 1913, p. 160, provides that "the the property then owned by the Idaho plaintiff at the time of the issuing of sumRailway, Light, & Power Company which mons, or at any time afterwards may have it might thereafter acquire, and un- the property of the defendant attached, as der which bonds of said company of the security for the satisfaction of any judgpar value of about $9,095,000 had been ment that may be recovered, unless the deactually issued. The property transferred fendant gives security to pay such judgment to the Idaho Railway, Light, & Power Com- as in this chapter provided in the following pany, which had previously constituted the cases : .. 2. In an action upon a judgsecurity as represented by the stock pledged ment, or upon contract, express or implied, to Jennings, was now claimed by the Idaho or for the collection of any penalty provided Railway, Light, & Power Company as own- by any statute of this state, against a deer, and by the Guaranty Trust Company fendant not residing in this state.” of New York as trustee, under the $30,000,- Section 2792, Rev. Codes, provides, among 000 mortgage above referred to.
other things: "That foreign corporations On December 23, 1913, a receiver for the complying with the provisions of this secIdaho Railway, Light, & Power Company tion shall have all the rights and privileges was duly appointed by an order of the of like domestic corporations, including the United States court for the district of Ida- right to exercise the right of eminent doho, southern division.
main, and shall be subject to the laws of The answer of the appellant admits the the state applicable to like domestic corindebtedness of $180,000 to the respondent, porations.” and also admits the appointment of a re- The pertinent question for our consideraceiver by an order of the United States dis- tion, therefore, is: Do the provisions of trict court, and the insolvency of the ap- our statute exempt foreign corporations pellant corporation.
from attachment, within the meaning of This is a brief statement of what appears $ 4302 and subdivision 2, supra. for the reato be the facts in this case.
son that said nonresident corporation has As the time of the issuance of sum- fully complied with the Constitution and mons in this action, the respondent, upon all of the laws of the state affecting foreign affidavit and sufficient bond, secured a writ corporations? In other words, when foreign of attachment and caused to be attached all corporations comply with the Constitution of the properties, assets, and franchises and laws of our state, do they occupy the of the Idaho Railway, Light, & Power Com- same position, with reference to our atpany. On May 28, 1914, appellant, by its tachment laws, that domestic corporations counsel, moved in the trial court to dis- do, or is their property liable to attachment, charge the attachment theretofore issued, irrespective of their compliance with the
Constitution and laws affecting nonresi. I is said: “The domicil, residence, and citidents?
zenship of a corporation are in the state Should this court reach the conclusion where it is created." that a foreign corporation is not exempt To grant to a foreign corporation the from attachment by reason of having com- right to hold property, to do business, mainplied with the Constitution and laws of tain actions, enjoy the benefits of eminent this state affecting foreign corporations, it domain, does not make it a domestic corwould be unnecessary to discuss or deter- poration; and notwithstanding the right to mine any other question involved in this the enjoyment of all of these privileges, and
such others as the legislature may from It is conceded that the appellant is a for- time to time provide, the residence or eign corporation, organized and existing citizenship of a foreign corporation would under the laws of the state of Maine; and not be changed, and it would still, under unless when it applied to the state of Idaho the great weight of authority, be subject for admission to do business within this to attachment as a foreign corporation. state, and by a full compliance with the Barbour v. Paige Hotel Co. 2 App. D. C. Constitution and laws of this state, affect- | 174; Cowardin v. Universal L. Ins. Co. 32 ing foreign corporations, it thereby became Gratt. 445; Merrick v. Van Santvoord, 34 a resident corporation, within the meaning N. Y. 208; Blackstone Mfg. Co. v. Blackof the attachment law, and thereby became stone, 13 Gray, 488; Bank of Augusta v. exempt from attachment, within the mean- Earle, 13 Pet. 524, 10 L. ed. 277; Shaw v. ing of the statutes above cited, it could Quincy Min. Co. 145 U. S. 444, 36 L. ed. at this time be considered in no other light | 768, 12 Sup. Ct. Rep. 935. than a nonresident.
The supreme court of California in In the case of Boyer v. Northern P. R. Waechter v. Atchison, T. & S. F. R. Co. 10 Co. 8 Idaho, 74, 70 L.R.A. 691, 66 Pac. 826, Cal. App. 70, 101 Pac. 41, had under conthe court says:
"Both pon principle and sideration the question of venue in a suit authority private corporations are residents brought against a foreign corporation, inof the state in which they are created. They / volving the same principle that we have and can have but one domicil—that the called upon to consider. The court held state of their birth, and which is fixed by that "its primary purpose was apparently the charter of incorporation. They may to place foreign railway and transportation migrate into other countries and jurisdic companies upon an equal standing in this tions for the purpose of business, and may state with domestic corporations, in respect be permitted to carry on business in other to building railways and exercising the right states; yet, so far as jurisdiction of courts of eminent domain, and the rights and is concerned, they are treated both by our privileges incident thereto. To construe it Federal courts and by our state courts as as taking such companies out of the operaresidents of the state in which created, and tion of the provisions of the general secnonresidents of other states. The appellant tion relating to the place of trial of actions in this case is a foreign corporation.
would be to create a specially privileged Foreign corporations are and remain, to all class of nonresident corporations who would intents and purposes, so far as jurisdiction be favored above, not only nonresident of actions is concerned, nonresidents of the natural persons, but all other foreign corstate."
porations that might be doing business in In the case of New York L. Ins. Co. v. the state. This would not only result in Pike, 51 Colo. 238, 117 Pac. 899, the su creating a special class of corporate defendpreme court of Colorado says: "The au-ants in civil actions, but would also arthorities, both court and text writers, bitrarily discriminate in favor of corporaannounce as settled doctrine that a corpora- tions against natural persons who were tion organized under the laws of one state nonresidents.” is a resident of the state under whose laws The authorities are uniform that the it was created; that it cannot be a resident domicil, residence, and citizenship of a corof any other state; and though such a cor- poration are in the state where it is created, poration be permitted by another state, up- and that, where the corporation is not doon compliance with its laws, to carry on its mesticated (that is, reincorporated in other business there, such permission and com- j states where it does business), it can have pliance does not make it a resident of such but one domicil, one residence, and one citother state.
To hold otherwise izenship, and that is in the state issuing would be to ingraft upon the statute an its charter and maintaining supervision exception which is wholly foreign to its and control over the corporation. 5 Thomp. plain terms, and would be only an amend Corp. 2d ed. $ 6629. ment thereof."
In Drake on Attachments, 7th ed. $ 80, In Cook on Corporations, 7th ed. § 1, it'the proposition is stated as follows: "The
foreign character of a corporation is not IOWA SUPREME COURT. to be determined by the place where its business is transacted, or where the cor- STATE OF IOWA EX REL. JOHN B. porators reside, but by the place where its
HAMMOND, Appt., charter was granted. With reference to
MRS. MAURICE LYNCH et al. inhabitancy, it is considered an inhabitant of the state in which it was incorporated.”
(- Iowa, -, 151 N. W. 81.) These general principles respecting residency or inhabitancy of corporations cannot Statute conclusiveness of enrolled be denied or questioned. Cowardin v. Uni
bill. versal L. Ins. Co. 32 Gratt. 445.
1. The courts cannot go behind the enIt must be conceded that it is beyond the rolled bill to determine whether or not the power of the state to forfeit or extend the plied with in the enactment of a statute.
requirements of the Constitution were comcorporate existence of a foreign corporation. Same absence of signature of speaker It can exercise no power or control over the effect. corporation as such. A foreign corpora- 2. The absence from the enrolled bill in tion, by compliance with the Constitution the office of the secretary of state, of the and laws, may do business within the state signature of the speaker of the house of at its pleasure, and, when dissatisfied, can
representatives, renders the statute void
where the Constitution provides that every withdraw at will.
bill, having passed both houses, shall be The provisions of our attachment law signed by the speaker and president of their provide for no such exemption as contended respective houses. for by appellant; and, even though the legislature should attempt to make some
(February 17, 1915.) such provision looking to the exemption of foreign corporations from attachment by a
PPEAL by relator from a judgment of A
the District Court for Polk County compliance with the Constitution and laws, dismissing a petition filed to enjoin the such legislation might be seriously ques. maintenance of a house of prostitution by tioned upon the ground and for the reason defendent Lynch. Affirmed. that it would be class legislation, or attempt on the part of the legislature to
Statement by Ladd, J.: confer special privileges upon a particular A demurrer to a petition praying that class of persons which could not be enjoyed a nuisance be enjoined was sustained, and, by all alike. We do not think that the
as plaintiff failed to plead over, the petition legislature ever intended that a foreign cor- was dismissed.
The state appeals. poration, by complying with the Constitution and laws of this state permitting it to Messrs. George Cosson, Attorney Gendo business, should be regarded as a resi- eral, and C. A. Robbins, Assistant Attordent of this state, within the meaning of ney General, for the State: our attachment laws, and that its property The effect of the failure of the proper should be exempt from attachment. Voss officers to certify over their signatures as v. Evans Marble Co. 101 Ill, App. 373. to the final passage of the bill, as required
In view of the conclusion reached by this by constitutional provision, is not clearly court upon the second ground of objection determined. urged to the validity of the attachment of 36 Cyc. 963; 26 Am. & Eng. Enc. Law, the property of appellant, it becomes im- 545; Simon v. State, 86 Ark. 527, 111 S. material whether or not the stock pledged W. 991; Speer v. Allegheny & M. Pl. Road by the Idaho Railway, Light, & Power Com. Co. 22 Pa. 376. pany to respondent is or became valueless
Where the evident purpose of the sigby the fault of respondent or the conduct natures is to indicate to the governor that of appellants.
the bill has been constitutionally passed,
the failure to affix the signatures will not The third objection urged, namely, that
invalidate the act. the undertaking for attachment was insufficient, was not discussed by counsel for 545; Re Roberts, 5 Colo. 525; Aikman v.
36 Cyc. 963; 26 Am. & Eng. Enc. Law, appellants, either during the oral argument Edwards, 55 Kan. 751, 30 L.R.A. 149, 42 or in the brief filed on appellants' behalf.
The order of the District Court refusing Note. - The right of the courts to go to dissolve the attachment is hereby af- behind an enrolled bill is treated at length firmed. Costs awarded to respondent.
in the note to Atchison, T. & S. F. R. Co. v. State, 40 L.R.A.(N.S.) 1. And see later
cases Allen v. State, 44 L.R.A.(N.S.) 468, Sullivan, Ch. J., and Morgan, J., concur. and Re Drainage Dist. L.R.A.1915A, 1210.
Pac. 366; Leavenworth County v. Higgins as require a record of the yeas and nays on botham, 17 Kan. 62; Douglass v. Bank of the legislative journals, these journals are Missouri, 1 Mo. 24; Taylor v. Wilson, 17 conclusive as against not only a printed Neb. 88, 22 N. W. 119; Cottrell v. State, 9 statute published by authority of law, but Neb. 125, 1 N. W. 1008.
also against a duly enrolled act. Where the signatures are required for Moody v. State, 48 Ala. 115, 17 Am. Rep. the purposes of authentication and identi. 28; State ex rel Atty. Gen. v. Buckley, 54 fication, such failure is regarded as fatal, Ala. 599; Perry County v. Selma, M. & M. R. upon the ground that the constitutional Co. 58 Ala. 546; Walker v. Griffith, 60 Ala. provision as to signatures is mandatory. 361; Burr v. Ross, 19 Ark. 250; Vinsant v.
Lynch v. Hutchinson, 219 Ill. 193, 76 N. Knox, 27 Ark. 266; Oakland Paving Co. v. E. 370, 4 Ann. Cas. 904; Burritt v. State Hilton, 69 Cal. 479, 11 Pac. 3; Spangler v. Contract Comrs. 120 Ill. 322, 11 N. E. 180; Jacoby, 14 Ill. 297, 58 Am. Dec. 571; IlState ex rel. Atty. Gen. v. Mead, 71 Mo. linois C. R. Co. v. People, 143 Ill. 434, 19 266; State ex rel. Coffin v. Howell, 26 Nev. L.R.A. 119, 33 N. E. 173; Berry v. Balti93, 64 Pac. 466; State ex rel. Cardwell v. more & D. P. R. Co. 41 Md. 446, 20 Am. Glenn, 18 Nev. 34, 1 Pac. 186; State v. Rep. 69; People ex rel. Drake v. Mahaney, Kiesewetter, 45 Ohio St. 254, 12 N. E. 807; 13 Mich. 481; Rode v. Phelps, 80 Mich. 598, Hunt v. State, 22 Tex. App. 396, 3 S. W. 45 N. W. 493; Sackrider v. Saginaw County, 233.
79 Mich. 59, 44 N. W. 165; People ex rel. While there is a conflict of authority as Gale v. Onondaga, 16 Mich. 254; Southto whether the journals may be considered worth v. Palmyra J. R. Co. 2 Mich. 287; for the purpose of impeaching the enrolled Ramsey County v. Heenan, 2 Minn. 330, bill, yet other evidence is admissible in aid Gil. 281; State v. Peterson, 38 Minn. 143, 36 of the enrolled bill.
N. W. 443; State ex rel. Atty. Gen, v. Atchison, T. & S. F. R. Co. v. State, 40 Mead, 71 Mo. 270; State v. McBride, 4 Mo. L.R.A. (N.S.) 1, and note, pp. 22, 34, 28 303, 29 Am. Dec. 636; Hull v. Miller, 4 Okla. 94, 113 Pac. 921; 36 Cyc. 1248, 1249; Neb. 503; Cottrell v. State, 9 Neb. 125, 1 Pelt v. Payne, 60 Ark. 637, 30 S. W. 426; N. W. 1008; Ballou v. Black, 17 Neb. 389, Narregang v. Brown County, 14 S. D. 357, i 23 N. W. 3; Opinion of Justices, 35 N. H. 85 N. W. 602; Wrought Iron Range Co. v. 579; State ex rel. Loomis v. Moffitt, 5 Ohio, Carver, 118 N. C. 328, 24 S. E. 352; State 359; State ex rel. Construction Co. v. Rabex rel. Bray v. Long, 21 Mont. 26, 52 Pac. bitts, 46 Ohio St. 178, 19 N. E. 437; Mum645; Home Teleg. Co. v. Nashville, 118 ford v. Sewall, 11 Or. 71, 50 Am. Rep. 462, Tenn. 1, 101 S. W. 770, 11 Ann. Cas. 824; | 4 Pac. 585; Currie v. Southern P. Co. 21 Miller v. Qelwein, 155 Iowa, 706, 136 N. W. Or. 566, 28 Pac. 884; Union Bank v. Oxford, 1045; Gray v. Taylor, 15 N. M. 742, 113 119 N. C. 214, 34 L.R.A. 487, 25 S. E. 966 ; Pac. 588, 227 U. S. 51, 56, 57 L. ed. 413, Stanly County V. Snuggs, 121 N. C. 394, 415, 33 Sup. Ct. Rep. 199; Goff v, Rickerson, 39 L.R.A. 439, 28 S. E. 539. 61 Fla. 29, 54 So. 264; O'Hara v. State, 121 Where the legislative journal unequivoAla. 28, 25 So. 622; Mitchell v. Gadsden, cally contradicts the evidence furnished by 145 Ala. 132, 40 So. 350; Lee v. Gadsden, the enrolled bill, the former will control. 146 Ala. 689, 40 So. 351; State ex rel. State v. Burlington & M. River R. Co. Woodward v. Skeggs, 154 Ala. 249, 46 So. | 60 Neb. 741, 84 N. W. 254; Webster v. 268; Adams v. Clark, 36 Colo. 65, 85 Pac. Hastings, 59 Neb. 563, 81 N. W, 510; State 642, 10 Ann. Cas. 774; Re Roberts, 5 Colo. ex rel. Atty. Gen. v. Green, 36 Fla. 154, 18 525; State ex rel. Atty. Gen. v. Mead, 71 So. 334; Simpson v. Union Stock Yards Mo. 266; State ex rel. McCaffery v. Mason, Co. 110 Fed. 799; State ex rel. Bailey v. 155 Mo. 486, 55 S. W. 636; State ox rel. Brookhart, 113 Iowa, 250, 84 N. W. 1064. Hynds v. Cahill, 12 Wyo. 225, 75 Pac. 433; Messrs. Schenk & Lehmann for appelYounger v. Hehn, 12 Wyo. 289, 109 Am. lant. St. Rep. 986, 75 Pac. 443; Speer v. Alle. Messrs. Parsons & Mills and Dunshee gheny & M. Pl. Road Co. 22 Pa, 376; Hous- & Haines for appellees. ton & T. C. R. Co. v. Odum, 53 Tex. 343; State v. Savings Bank, 79 Conn. 141, 64 Ladd, J., delivered the opinion of the Atl. 5; State ex rel. Corbett v. South Nor- | court: walk, 77 Conn. 257, 58 Atl. 759; State ex The petition alleged that Mrs. Maurice rel. Douglas County v. Frank, 60 Neb. 327, Lynch was maintaining the premises de83 N. W. 74; New Hanover County v. De scribed, leased by her of her codefendant, Rosset, 129 N. C. 275, 40 S. E. 43; Black a place of lewdness, assignation, and v. Buncombe County, 129 N. C. 121, 39 s. prostitution in violation of law, and prayed E. 818.
that she be restrained from so doing. The Where a state Constitution prescribes defendant demurred to the petition on sevsuch formalities in the enactment of laws' eral grounds, only one of which is argued,
and that is that chapter 214 of the Acts of ; upon its last reading, and the yeas and nays the 33d General Assembly, as the same ap- entered on the journal.” pears among the enrolled bills in the office
The authorities agree that the bill, when of the secretary of state, though duly signed, as exacted, by the speaker of the signed by the president of the senate and house and president of the senate, and apapproved by the governor, was never signed proved by the governor and deposited with by the speaker of the house of representa- the secretary of state, is at least prima tives. An inspection of the bill as it ap- facie evidence that it was passed by the pears in the office of the secretary of state legislature; but many courts entertain the rerifies the allegation, and, of course, the view that it is within their jurisdiction to demurrer admits it. If the signature of the ascertain whether the authentication as speaker of the house of representatives, as thus made is correct, and whether the legiswell as that of the president of the senate, lature in fact did what its presiding officers was essential to the authentication of the say it did, and which the governor approved, bill as having passed the general assembly, and for that purpose to resort to the jourchapter 214, as printed in the Session Laws nals of the respective houses, and even of 1909, under which this suit was begun, consider other evidence bearing on the quescannot be deemed to have been enacted by tion. See State ex rel. Cheyenne v. Swan, 7 that body, and did not become the law of Wyo. 166, 40 L.R.A. 195, 75 Am. St. Rep. this state.
889, 51 Pac. 209, and cases therein cited ; The provisions of the Constitution bear. Rode v. Phelps, 80 Mich. 598, 45 N. W. 493; ing thereon are found in article 3; § 9 State ex rel. Douglas County v. Frank, 60 thereof declares that "each house shall | Neb. 327, 83 N. W. 74; State ex rel. Boyd ... keep a journal of its proceedings, v. Deal, 24 Fla. 293, 12 Am. St. Rep. 204, and publish the same.”
4 So. 899; Spangler v. Jacoby, 14 III. 297, Section 10: "The yeas and nays of the 58 Am. Dec. 571. members of either house, on any question, Other authorities are to the effect that, shall, at the desire of any two members while the Constitution has prescribed the present, be entered on the journals."
formalities to be observed in the passage Section 15: “Every bill having passed of bills and the creation of statutes, the both houses, shall be signed by the speaker power to determine whether these formaliand president of their respective houses." ties have been complied with is necessarily
Section 16: “Every bill which shall have vested in the legislature, and, a bill havpassed the general assembly, shall, before it ing been authenticated and promulgated becomes a law, be presented to the governor. by the legislative department to the public If he approve, he shall sign it; but if not, in the manner authorized by the Constituhe shall return it, with his objections, to tion, this is conclusive evidence of its propthe house in which it originated, which er passage by the legislature. As all deshall enter the same upon their journal, and cisions entertaining the latter view exact, proceed to reconsider it; if, after such re- as essential to the authentication of the consideration, it again pass both houses, by enrolled bill and proof of its passage, the yeas and nays, by a majority of two thirds signature of both the speaker of the house of the members of each house, it shall be and president of the senate, inquiry as to come a law, notwithstanding the governor's whether we may look beyond the enrolled objections. If any bill shall not be returned bill to ascertain whether it is in fact a within three days after it shall have been statute of the state is pertinent. The expresented to him, Sunday excepted, the pressions contained in the opinions of this same shall be a law in like manner as if court are in harmony with the authorities he had signed it, unless the general assem- declaring the enrolled bill conclusive. In bly, by adjournment, prevent such return. Clare v. State, 5 Iowa, 509, the question as Any bill submitted to the governor for his to whether the enrolled bill in the office of
the secretary of state or as published in approval during the last three days of a session of the general assembly, shall be de. the session laws was controlling, and the posited by him in the office of the secretary retary's office is the ultimate proof of the
court said: “The original act in the secof state within thirty days after the ad-law, whatever errors there may be in what journment, with his approval
, if approved by purports to be copy thereof; and the court him, and with his objections, if he disap- will inform itself and take cognizance of proves thereof."
the true reading of the statute." Section 17: “No bill shall be passed un- In Duncombe v. Prindle, 12 Iowa, 1, the less by the assent of a majority of all the question involved was whether township 90 members elected to each branch of the gen. was taken from Webster county and added eral assembly, and the question upon the to Ilumboldt county, and it was contended final passage shall be taken immediately' that the number "90" was omitted by mis