tory and are recognized as possessing them there. This necessarily involves the recognition of the foreign status as a domestic institution for some purposes at least. Of course the powers of a foreign corporation must depend on the law of the state creating it, since • that law governs its charter, which is the compact of the group delimiting its activities.

But if we are to consider the corporation as a group unit we must allow it the attributes of group unity. One of these is the capacity to be in several places at once. The Roman Catholic Church is as truly present in America as in Rome. The American Federation of Labor is in New York, Chicago, and San Francisco simultaneously. A group is wherever its members may be carrying on authorized group activities. Unless we accept this proposition we can never say a group is in any place unless all its members are there. The American Federation of Labor cannot be in the United States so long as a single organizer is at work in Canada, under this theory. But if we say it is in the United States on these facts we must also say it is in Canada. To adopt a crude physical parallel, it is in somewhat the same position as a man lying across the border line. He is in both Canada and the United States. The English courts have recognized the validity of this reasoning in a long line of cases, following Lord St. Leonard's dictum in Carron Iron Co. v. Maclaren 25 that a corporation “may, for the purposes of jurisdiction, be deemed to have two domiciles ... The places of business may, for the purposes of jurisdiction, properly be deemed the domicile.” It is evident that the noble lord meant only to say that the corporation doing business in both England and Scotland was present and amenable to process in both. Blackburn quotes him with approval in the leading English case on the subject, Newby v. Van Oppen.26 In that case a New York corporation doing business in England was held to be subject to the jurisdiction of the English courts and servable with process in the ordinary way. The case and Blackburn's opinion have since been put beyond doubt by the decision of the House of Lords in La Compagnie Transatlantique v. Law,27 where the Lord Chancellor placed the decision of the case on the ground that the corporations

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5 H. L. Cas. 416, 449 (1855).

7 Q. B. 293 (1872). 37 (1899) A. C. 431, 433.

“are here and if they are here they may be served.” 28 In Logan v. Bank, the Court of Appeal said:

“If a foreigner is found within the jurisdiction, he may be served with a writ, although the cause of action did not arise in England; and it is not easy to see why there should be a difference as to the right to serve a foreign corporation which is found to have a place of business, and to be trading in this country, and which is therefore to be treated as resident here."

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Neither Dicey nor Westlake seems to find anything unnatural or strange in this English conception of corporate presence.

All American authority reaches the same result. But it has been thought that the American cases can be explained on the ground of a previous consent by the corporation to submit to the jurisdiction of the court. It may be said that the corporation has agreed with the state to submit to the jurisdiction of its courts, or that the corporation has agreed with the individual plaintiff to submit any difficulties arising out of their transactions to the jurisdiction of the domestic courts, or both. Contract claimants might very well claim that they had a right to expect that the corporation had complied with the laws of the state as to doing business there, and that submission to the jurisdiction of the domestic courts was an implied term of their bargain. This reasoning, however, would exclude all other types of claimants, and there is no evidence that the courts discriminate against tort suitors.

The basis of the consent theory is found in the power of the state to exclude absolutely corporations not engaged in interstate commerce.30 If the state may exclude the corporation altogether, it may admit it to do business within the state on the condition that it consent to the jurisdiction of the state's courts, making business done on any other terms illegal. It may make such an offer to the corporation which the latter can accept. Coming in to the state and doing business there might be said to constitute an acceptance, the reasonable impression of the state being that the corporation was acting legally and accepting its offer. There are two very obvious difficulties. The corporation might set up that it was never acquainted with the offer and hence could not have accepted it. This line of defense has never been tried. Every one is perfectly well aware that it would be futile. Nevertheless the proffer of such a defense tests the consent theory. The courts would answer that everyone is presumed to know the law. The consent we speak of, is not a consent to any particular law but a consent to all the laws of the jurisdiction. By coming into a jurisdiction one consents to be bound by its laws. But nobody would contend that an individual entering a state consents in fact to be bound by its murder laws. Certainly no would-be murderer makes such an agreement. He is bound by them all unwillingly, because he acts within the state. A more fundamental difficulty is, however, that the state ordinarily gives not the slightest evidence of a bargaining mind.

28 Haggin v. Comptoir D’Escompte De Paris, 23 Q. B. D. 519 (1899 C. A.); L'Honeux v. Bank, 33 Ch. D. 446 (1886); Dunlop v. Actiengesellschaft, (1902) 1 K. B. 342; Logan v. Bank, (1904) 2 K. B. 495, 499.


30 Paul v. Virginia, 8 Wall. (U. S.) 168 (1868).


The statutory provisions appear to be of three kinds. The most common type adopted by nearly all the important jurisdictions forbids the doing of business in the state before the filing of a written consent to the jurisdiction of the state courts. The statute also usually requires the designation of one or more persons on whom process may be served.31 A few jurisdictions expressly permit service upon any agents of the corporation who are doing its business in the state,82 while some of the jurisdictions cited supra allow service not only upon the designated agent but upon all others.) Others provide that service on a foreign corporation may be made in the same manner as upon a domestic corporation.34 A few seem to have made no special provision at all.35 But in these states a foreign corporation appears to be servable in the way provided for domestic corporations.36

In states having statutes of the first type there is no ground what



31 Alaska, Arizona, Arkansas, California, Colorado, Connecticut, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Michigan, Minnesota, Missouri, Montana, Nebraska, Nevada, New Jersey, New Mexico, New York, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Carolina, South Dakota, Utah, Virginia, Washington, Wisconsin, Wyoming.

32 Delaware, District of Columbia, Texas.

33 Idaho, Michigan, Minnesota, Missouri, New Mexico, Pennsylvania, South Carolina.

34 Florida, Maine, Louisiana, Maryland, Massachusetts and Tennessee. 35 Georgia, New Hampshire and West Virginia.

88 Fire Insurance Co. o. Carrugi, 41 Ga. 660 (1871); Hayden v. Androscoggin Mills, 1 Fed. 93 (1879); Railroad Co. v. Harris, 12 Wall. (U. S.) 65 (1870).

ever for supposing that the corporation has agreed to the condition imposed by the state, unless the corporation accepts in the manner indicated by the offer. Yet it is perfectly clear law that where the corporation does business within the state without filing the required consent, service made upon its agents will sustain a judgment against it.37 The only ground on which these cases may be supported is that the corporation is present in the state. But the cases go further. The consent of the corporation to the jurisdiction of the courts cannot be said to be any broader than that required by the statute. Yet in Steamship Co. v. Kane,38 the United States Supreme Court held that service on an agent was sufficient to give the Federal Court jurisdiction in a suit brought by a non-resident although the New York statute only provided for suits by residents. The court put its decision on the broad ground that the foreign corporation was present within the jurisdiction.39 Even where the statute requires the designation of a state officer to accept service and the designation is not filed, judgments rendered upon service on that officer are sustained, and rightly so.40 The corporation while doing business in the state is within its jurisdiction and the question of service alone is raised. Service on the state officer in charge of any particular type of foreign corporations on whom the duty is imposed to notify the defendant, is not an unreasonable method of service. 41 But it has been suggested that the statutes in question might be construed to include two things: the imposition of a condition that the foreign corporation, if it comes into the state to do business shall consent to be sued, and a provision as to the method of suit. From


37 Mining Company v. Johnson, 173 U. S. 221 (1898); Ins. Co. o. McDonough, 204 U. S. 8 (1906); Harvester Co. v. Kentucky, 234 U. S. 579 (1913), cited infra; Modern Woodmen of America v. Noyes, 158 Ind. 503, 64 N. E. 21 (1902); Funk v. Ins. Co., 27 Fed. 336 (1886); Thomas v. Placerville Co., 65 Cal. 600, 4 Pac. 641 (1884); St. Louis Ry. Co. v. DeFord, 38 Kan. 299, 16 Pac. 442 (1888); Hagerman v. Slate Co., 97 Pa. 534 (1881).

170 U. S. 100 (1897). 39 See also Colorado Iron Works v. Mining Co., 15 Colo. 499, 25 Pac. 325 (1890).

40 Sparks v. National Masonic Association, 100 Ia. 458,69 N. W. 678 (1896); Surety Co. v. Slinker, 42 Okla. 811, 143 Pac. 41 (1914); Ehrman v. Ins. Co., 1 Fed. 471 (1880); Diamond Plate Glass Co. v. Insurance Co., 55 Fed. 27 (1892); Mason's, etc. Ass'n 1. Riley, 60 Ark. 578, 31 S. W. 148 (1895); but see contra Rothrock o. Insurance Co., 161 Mass. 423, 37 N. E. 206 (1894).

4 Where no duty is imposed upon the state officers to notify the corporation, of course the statute violates the requirement of due process. Southern Ry. Co. v. Simon, 184 Fed. 959 (1910), aff’d 236 U. S. 115 (1914).

a glance at the statutes it seems obvious that this is a most artificial construction adopted solely for the purpose of reconciling the cases with the consent theory, although it is generally recognized that the statutes must be strictly construed. But even if such a con

42 4 struction were to be adopted, the doing of business by the corporation within the state would give rise to no presumption of consent. In the other cases, consent might be inferred because it would be unreasonable to assume that the corporation was acting illegally when its conduct was equally capable of a legal interpretation. But in this case the corporation is acting illegally, from any viewpoint, by failing to designate an agent to receive process.

Under the second and third types of statutes, which do not require an express consent, it is not so difficult to work out an implied consent. But even here it can only be done by totally disregarding the actual language of the statutes. The statutes do not say: “We forbid you to do business within the state unless you consent to the jurisdiction of our courts.” The statutes assume for the most part that the corporation is present, and that it is only necessary to provide for the method of service. This seems also to be the attitude of the states which have made no provision for jurisdiction over foreign corporations. They are served whenever an agent can be found within the state on corporate business. However, since only the legislature has the power to offer terms to foreign corporations, no ground at all is afforded for presuming the consent of the corporation to the jurisdiction of the courts in these states.

Moreover, the courts, except in the very earliest cases, see no necessity for consent. The course of decision of the United States Supreme Court is typical. It is particularly instructive as it controls to a great extent the decision of state tribunals since the question of jurisdiction is usually raised on the Fourteenth Amendment. In Insurance Co. v. French, decided in 1855,44 the opinion of Mr. Justice Curtis based wholly on the consent theory. But in St. Clair v. Cox,45 Mr. Justice Field makes the consent theory only one of his


• Railroad v. Harris, 12 Wall. (U. S.) 65 (1870). In Hayden o. Androscoggin Mills, i Fed. 93 (1879), service on a foreign corporation doing business in Massachusetts, where there was no statute, was sustained. See also Fire Insurance Co. o. Carrugi, 41 Ga. 660, 670 (1871). 44 18 How. 404.

* 106 U. S. 350 (1882).

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