to represent it as New England passenger_agent and invested him with considerable authority regard to passenger business, and he took up both actual and apparent, consulted him with complaints with the company. [Ed. Note. For other cases, see Corporations, Cent. Dig. §§ 2520, 2521; Dec. Dig. 642(1). For other definitions, see Words and Phrases, First and Second Series, Engage.] 3. COMMERCE 80-INTERSTATE COMMERCE -SERVICE ON FOREIGN CORPORATIONS. with them, the cross-bill under the prayer for general relief cannot be maintained for their removal. Fordyce v. Dillaway, 212 Mass. 404, 411, 99 N. E. 166; Tempest v. Lord' Camoys, 21 Ch. Div. 571. Nor on the record has the doctrine of cy pres on which the plaintiffs further rely any application; "for that is to be applied in giving a new direction to a charity, only when it becomes necessary to do so to prevent the charity failing, St. 1913, c. 257, amending St. 1907, c. because it cannot be applied agreeably to the 332, § 1, providing for service upon foreign corliteral intention of the donor." Harvard Col-porations engaged in or soliciting business in lege v. Society for Promoting Theological Education, 3 Gray, 280, 301. And whenever a charitable trust can be administered in accordance with the directions of the donor or founder, this court " is not at liberty to modify it upon considerations of policy or convenience." Jackson v. Phillips, 14 Allen, 539, 591, 592. [14, 15] It is unnecessary to consider the question whether a case can be stated under which the doctrine will become applicable in the administration of the trust. If the trustees appointed under the decree neglect or refuse to execute the trust, or abuse their powers, the Attorney General on his own initiative, or at the relation of those who are beneficially interested, can petition for their removal, and also can have relief in equity for an accounting, or if the trustees are uncertain, or unable to agree among themselves as to their powers and duties, they can ask for instructions making him a party defendant. R. L. c. 147, § 11; c. 159, § 1; Odell v. Odell, 10 Allen, 1, 15; Drury v. Natick, 10 Allen, 169; Jackson v. Phillips, 14 Allen, 539; Atty. Gen. v. Garrison, 101 Mass. 223; Ripley v. Brown, 218 Mass. 33, 105 N. E. 637; Atty. Gen. v. Bedard, 218 Mass. 378, 105 N. E. 993. We are of opinion for the reasons stated that the cross-bill should be dismissed. Decree accordingly. (224 Mass. 379) Massachusetts, is not unconstitutional as applied to the case of a foreign railroad corporation doing business in the state. [Ed. Note.-For other cases, see Commerce, Dec. Dig. 80.] 4. CORPORATIONS 668(1)—FOREIGN CORPORATION-SERVICE UPON STOCKHOLDER. ness in the state, a service upon stockholder, Where a foreign corporation is doing busior even a director, thereof in accordance with Rev. Laws, c. 167, § 36, providing for service. upon corporations by leaving process with clerk, charge of its business, and, such officers becashier, secretary, agent, or other officer in ing absent, upon a member of the corporation, offends no constitutional provision and constitutes adequate service of process. [Ed. Note.-For other cases, see Corporations, Cent. Dig. §§ 2603-2606, 2618; Dec. Dig. 668(1).] Where defendant seasonably filed a plea to the jurisdiction, he did not waive same by argument by his attorneys upon question of REYNOLDS v. MISSOURI, K. & T. RY. CO. preliminary injunction, which argument was in vited by the court, with reservation of all rights under the plea; such proceedings not constituting a general appearance. [Ed. Note.-For other cases, see Appearance, Cent. Dig. § 43; Dec. Dig. 9(2).] 8. APPEAL AND ERROR 320-RESERVATION IN COURT BELOW-REPORT OF CASE. Where a case is reported, questions not presented on the report are not considered. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§8 1790-1794, 2299; Dec. Dig. 320.] Missouri, Kansas & Texas Railway Company, whenever they wanted information respectand others. Plea overruled, and case report- ing the defendant's railway system, or when ed, together with plaintiff's appeals from orders striking out part of plaintiff's replication to the plea denying plaintiff's motion to strike out the plea and the findings of fact on the hearing of that motion, and denying plaintiff's motion to offer additional evidence. Plaintiff's exceptions overruled, the order overruling the plea to the jurisdiction affirmed, and other interlocutory orders affirmed. Tyler, Corneau & Eames and Wm. E. Tucker, all of Boston, for complainant. J. L. Thorndike and F. V. Barstow, both of Boston, for defendant. RUGG, C. J. The question at issue in this case is the jurisdictional one whether service of process has been made upon the defendant railway company, who hereafter will be referred to as the defendant. The facts are these: The Missouri, Kansas & Texas Railway Company is a corporation organized under the laws of Kansas. Its lines of railway are located in Missouri, Kansas, Oklahoma, Texas, and perhaps in other states, but none in Massachusetts. In 1912, it entered into an agreement whereby George E. Marsters a resident within this commonwealth was to represent its railway system as New England passenger agent, with headquarters in Boston, his compensation to consist of a commission on all revenue derived from passenger tickets sold in the six New England states, but without expense to it for office rent, advertising or traveling expenses. Thereupon, it sent him stationery with this printing: "Missouri, Kansas & Texas Railway System. New England Passenger Agency, 248 Washington Street, Boston. W. S. St. George, General Passenger Agent, St. Louis, Mo. Geo. E. Marsters, New England Passenger Agent." Notice of this appointment was sent out by the railway company, which advertised him generally as its New England passenger agent. He was consulted by its officials in regard to passenger business. He was furnished with a frank for telegraphing on railway business. He sold tickets for and reserved seats and berths in cars of the Pullman Company running over the defendant's railway system, and used his telegraph frank which he was authorized to use only on the business of the railway company in connection with these transactions, although he was agent for the Pullman Company. In a comparatively few instances he issued prepaid orders for the transportation of passengers beginning at some point on the defendant's railway system, to be exchanged for a ticket to be delivered at the points indicated, to be honored by the railway company. A form of prepaid order was furnished him by the defendant for that purpose. The money received from this source was sent by Marsters directly to the defendant. Local ticket agents in Boston conferred with him they wanted a communication sent to it about its business, and he transmitted such communications. In some instances complaints about transportation were presented to him which he took up with the railway company. Marsters paid the rent of his store himself, and conducted there a large business in "Tickets and Tours" on his own acHe advertised upon his windows and walls the names of many railroads and steamship lines, including in a prominent place that of the defendant railway company. He does not have for sale at his office any tickets of the defendant railway company, but sells through his arrangement with other railroads tickets issued by such railroads, which contain coupons for passage to points Tickets constantly are sold by Marsters and on or over the system of the defendant. other persons within this state, to which are transportation over the lines of the defendattached coupons entitling the traveler to tion. It is his duty to influence travelers to ant railway company without further validause the system of the defendant railway company and to exert this influence throughout the New England states. He renders no accounts to the company company except for the prepaid orders. He is paid his monthly percentage on New England sales. At the Washington Street store he is conducting his own business in some respects for the benefit of the defendant railway company. In conclusion the trial judge found that: ** * "Marsters is held out by the defendant railway as an agent for it at Boston and * is doing the acts which St. 1913, c. 257, contemplates as constituting an engaging in or soliciting business in this commonwealth by a foreign corporation. I therefore find said defendant is engaging in business within this commonwealth." Most of these facts have been found by the superior court judge, but as only one witness testified and apparently the trial judge did not distrust his testimony in any respect, we have treated his testimony as true and included in this statement a few facts not stated in his finding, but shown by the testimony and supporting his conclusion. See Lindsey v. supporting his conclusion. Bird, 193 Mass. 200, 79 N. E. 263; Harvey Watts Co. v. Worcester Umbrella Co., 193 Mass. 138, 78 N. E. 886. [1, 2] The precise point to be decided is whether the defendant railway company was "engaged in or soliciting business in this commonwealth" within the meaning of the pertinent statute.1 The question involved is 1 St. 1913, c. 257, amending St. 1907, c. 332, § 1: ing its principal or a usual place of business with"In an action against a foreign corporation havin this commonwealth, or which is engaged in or soliciting business in this commonwealth, permanently or temporarily, and with or without a usual place of business therein, service of the summons or writ may be made according to the provisions of section thirty-six of chapter one hundred and sixty-seven of the Revised Laws for service in actions against domestic corporations; and such service shall be of the same effect and validity as if made upon the commissioner of corporations." a federal one upon which the decisions of the | ant's business depends somewhat upon its United States Supreme Court are controlling. magnitude. But the inference seems fair That court has said that "each case of this from the general testimony of Marsters that kind must depend on its own facts." Wash- it is considerable. The selling of tickets good ington-Virginia Ry. v. Real Estate Trust, 238 over the lines of a foreign railway corporaU. S. 185, 186, 35 Sup. Ct. 818 (59 L. Ed. tion by agents of other corporations, does 1262). That court has not undertaken to not, standing alone, constitute the doing of formulate any general rule defining what business by the foreign corporation within transactions are essential to the doing of the state of sale of the tickets. Peterson v. business in the sense which will render the Chicago, Rock Island & Pacific Ry., 205 U. one conducting it liable to service of pro- S. 364, 394, 27 Sup. Ct. 513, 51 L. Ed. 841. cess. It has gone no further than to say that But considered in connection with the other as to corporations: circumstances, it is entitled to some weight. All in all, Marsters performed a service which was regarded as important. Judged by the compensation paid to him, it was worth 15 per cent. of all the revenue coming from passenger tickets sold in New England for the defendant railway system. Correspondence as to complaints, advice as to passenger business, and other activities are outside a simple solicitation of business. While many of these elements alone might be held not to be a doing of business, we think that, grouped in combination, they constitute a doing of business within the commonwealth sufficient to subject it to the service of process. International Harvester Co. v. Ky., 234 U. S. 579, 34 Sup. Ct. 944, 58 L. Ed. 1479. "The business must be such in character and extent as to warrant the inference that the corporation has subjected itself to the jurisdiction and laws of the district in which it is served." St. Louis Southwestern Ry. v. Alexander, 227 U. S. 218, 227, 33 Sup. Ct. 245, 248 (57 L. Ed. 486, Ann. Cas. 1915B, 77). In that case the facts were that the name under which the defendant did business was on the door of an office in New York, together with the names of persons designated as a general freight and passenger agent and a traveling freight agent. Through one of these agents, before action was brought, the plaintiff had some negotiations and correspondence touching his claim and its settlement, which reached and were considered by the executive officers of the defendant. This was held to be the transaction of business in behalf of the defendant in such manner as to make it liable to the service of process in respect of that matter in New York. The case at bar seems to us to fall within the principle and the facts of the Alexander Case. Marsters confessedly was the New England passenger agent advertised by the defendant as such, to whom others in this neighborhood looked for information respecting travel and accommodations to be had upon the defendant's railway system. He used the defendant's telegraphic frank for that business. He received money for transportation orders on the defendant's line and accounted for such money to the defendant. He was also constantly striving to direct travel from all New England territory over the defendant's railway system. He took up complaints as to service with executive officers of the defendant. While the case at bar possesses all the elements of doing business revealed in the Alexander record, there are present some factors lacking in that case. Tickets good over the defendant's railway system, attached as coupons to other tickets, were sold not only by Marsters (although not in his capacity as agent for the defendant), but by others within this state. The amount of revenue derived from these sales is not stated. The selling of tickets for passenger transportation is an important source of income to a railroad. The selling of such tickets accepted as good without further countersigning or stamping can only be done by authority of the defendant. Possession of such authority indicates a kind of agency. The case at bar seems to us distinguishable from Green v. Chicago, Burlington & Quincy R. R., 205 U. S. 530, 27 Sup. Ct. 595, 51 L. Ed. 916. There the office was hired in Pennsylvania by the defendant, but the solicitation of business and the selling of prepaid orders entitling the holder when reaching Chicago to receive a ticket over the railroad of the defendant was all that was done in that state. There are absent all the other factors present in the case at bar, while payment of office rent is the only one not disclosed here and present there. Tyler Co. v. Ludlow-Saylor Wire Co., 236 U. S. 723, 35 Sup. Ct. 458, 59 L. Ed. 808, and Peterson v. Chicago, Rock Island & Pacific Ry., 205 U. S. 364, 394, 27 Sup. Ct. 513, 51 L. Ed. 841, fall in the same class as the Green Case, and are wanting in features found here which seem to throw the case at bar on the other side of the line. The mere solicitation of business by a foreign corporation without more commonly has been held not to be the doing of business within a state. Berger v. Pennsylvania R. R., 27 R. I. 583, 65 Atl. 261, 9 L. R. A. (N. S.) 1214, 8 Ann. Cas. 941; Booz v. Texas & Pacific Ry., 250 Ill. 376, 381, 95 N. E. 460; Arrow Lumber & Shingle Co. v. Union Pacific R. R., 53 Wash. 629, 102 Pac. 650. These and other like cases generally have been decided in the absence of a state statute expressly providing that for purpose of services of process the solicitation of business shall constitute a doing of business. See, however, Mechanical Appliance Co. v. Castleman, 215 U. S. 437, 442, 30 Sup. Ct. 125, 54 L. Ed. 272. It is not necessary in the present case to decide whether such a statute Louis Southwestern Ry. v. Alexander, 227 U. S. 218, 226, 33 Sup. Ct. 245, 57 L. Ed. 486,. Ann. Cas. 1915B, 77). the facts show a doing of business in the sense in which those words are used in Goldey v. Morning News, 156 U. S. 518, 15 Sup. Ct. 559, 39 L. Ed. 517; Green v. Chicago, [5, 6] The motion of the plaintiff to be alBurlington & Quincy Ry., 205 U. S. 530, 27 lowed to offer additional evidence after the Sup. Ct. 595, 51 L. Ed. 916; St. Louis South- hearing had been closed, but before the rendiwestern Ry. v. Alexander, 227 U. S. 218, 33 tion of a decision, was addressed to the disSup. Ct. 245, 57 L. Ed. 486, Ann. Cas. 1915B, cretion of the trial judge and cannot be re77, and other cases of the United States vised. The denial of the motion and the apSupreme Court. Therefore, we conclude peal from it presents no question of law. that the finding of fact that the defendant | Briggs v. Adams, 220 Mass. 262, 107 N. E. railway company was doing business within 966. the commonwealth was right. [3] In its broader aspect the question is presented whether St. 1913, c. 257, is constitutional. The circumstance that the business transacted by the defendant was wholly interstate in its nature is of no consequence in this connection. International Harvester Co. v. Kentucky, 234 U. S. 579, 34 Sup. Ct. 944, 58 L. Ed. 1479. It is not necessary to discuss how great may be the effect of a state statute declaring certain conduct by a foreign corporation to constitute the transaction of business which would not be held to constitute the transaction of business apart from the statute. It is enough to say that the facts in the case at bar plainly bring the defendant within the terms of the statute. The statute is constitutional as applied to these facts because in our opinion, as already stated, they constitute a doing of business within the rule of the Alexander Case. The service of process here was in accordance with the terms of the statute. It was made both upon Marsters as the agent and upon a stockholder of the defendant. [4] While service upon a stockholder or even upon a director of the defendant resident within the commonwealth, in accordance with R. L. c. 167, § 36, standing alone, might be disregarded if the corporation transacted no business within the state (Riverside Mills v. Menefee, 237 U. S. 189, 35 Sup. Ct. 579, 59 L. Ed. 910), when it is found that the corporation is transacting business within the commonwealth, then such a service made in accordance with a statute offends no constitutional provision and constitutes adequate service of process (Pennsylvania Lumbermen's Mutual Fire Ins. Co. v. Meyer, 197 U. S. 407, 25 Sup. Ct. 483, 49 L. Ed. 810; St. [7] There has been no waiver of the plea to the jurisdiction which seasonably was filed by the railway company. The argument of the question whether a preliminary injunction ought to issue was made with reservation of all rights under the plea to the jurisdiction. The argument was invited by the judge. He made a finding to the effect that counsel plainly relied on the jurisdictional point and did not waive it, and by permission argued other points only in case the court should be against him on the question of jurisdiction. This finding was right. The conduct of the defendant's attorney constituted no waiver of the plea to the jurisdiction and was far from being in substance a general appearance. In principle this branch of the case is indistinguishable from O'Loughlin v. Bird, 128 Mass. 600; Lowrie v. Castle, 198 Mass. 82, 90, 83 N. E. 1118; Cheshire Nat. Bank v. Jaynes, 112 N. E. 500, and cases there collected. The plaintiff's exceptions and appeal upon this point are without merit. [8] The question whether the cause of action set out in the plaintiff's bill is one which can be sued in this state because refated to the business done here is not presented on this report and is not considered. See Simon v. Southern Ry. Co., 236 U. S. 115, 130, 35 Sup. Ct. 255, 59 L. Ed. 492. [9] The plaintiff's appeal from the interlocutory orders striking out part of the plaintiff's replication to the plea has not been argued and is treated as waived. It follows that the plaintiff's exceptions are overruled, the order overruling the defendant's plea to the jurisdiction is affirmed, and other interlocutory orders are affirmed. So ordered. (62 Ind. App. 635) STUDEBAKER BROS. MFG. CO. v. DE 9. WILLS 783-RIGHTS OF DEVISEES AND LEGATEES-ELECTION. Under Burns' Ann. St. 1914, § 3046, providing that if a wife's will makes provision for (Appellate Court of Indiana, Division No. 2. surviving husband he shall take thereunder un FROM WILL. Under Burns' Ann. St. 1914, § 3046, providing that if by his late wife's will property is left to a widower or provision made for him he shall take by the will unless he elect to take by descent, no active or expressed election is necessary for a husband to abide by a wife's will. [Ed. Note.-For other cases, see Wills, Cent. Dig. §§ 2049, 2063; Dec. Dig. 792(1).] 5. WILLS 783 RIGHTS OF DEVISEES AND LEGATEES-ELECTION - WHERE NO PROPERTY IS LEFT HUSBAND. - Under said section and section 3016, giving widower one-third of the real estate of his former wife, dying testate or intestate, he takes by descent irrespective of election, where by the will no property is left to him or provision made for him. less he elects to take by descent, a provision in wife's will giving her surviving husband title to property as trustee for his daughter, with liberal compensation for such services and naming him executor, requires him to elect whether to take by will or by descent. [Ed. Note.-For other cases, see Wills, Cent. Dig. § 2034; Dec. Dig. 783.] Appeal from Circuit Court, Decatur County; Alonzo Blair, Judge. On rehearing. Former opinion set aside, and judgment of court below affirmed. For former opinion, see 111 N. E. 26. J. K. Ewing, of Greensburg, for appellant. John E. Osborn and Frank Hamilton, both of Greensburg, for appellee. [Ed. Note.-For other cases, see Wills, Cent. terms of her last will and testament, which Dig. 2034; Dec. Dig. 783.] 6. WILLS 783 RIGHTS OF DEVISEES AND LEGATEES-ELECTION. Under Burns' Ann. St. 1914, § 3046, providing that if a wife's will makes provision for surviving husband he shall take thereunder unless he elects to take by descent, a widower is put to his election whether to take under his wife's will by her making in the will any provision beneficial to him, no matter how small its value may be. [Ed. Note.-For other cases, see Wills, Cent. Dig. § 2034; Dec. Dig. 783.] 7. WILLS 799-RIGHTS OF DEVISEES AND LEGATEES ELECTION - VALIDITY OF ELEC was duly probated, and of which her husband by its terms was named as executor, Ella H. Shields devised and bequeathed all her property, both real and personal, subject to the payment of her debts and expenses, to her husband, John W. Shields, in trust for the use, benefit, support, maintenance, and education of appellee Eleanore Shields, alleged to be the daughter of testatrix and John W. Shields, for which purpose he was directed to use the income from the trust, deemed by him to be necessary. and the principal or any part thereof if The will provided that John W. Shields should take title only as trustee, and in that capacity he was specifically given full power of control, management, and disposition, with a provision that in his discretion he might at any time terminate the trust by a conveyance of the trust property to the daughter. The will provided, also, that he might sell any of the trust property at any time at either public or private sale, with or without notice, for cash [Ed. Note.-For other cases, see Parent and or on time, as he might determine, and by Child, Cent. Dig. §§ 33-51; Dec. Dig. 3(1).] the will he was expressly authorized to sell TION. Lack of business acumen in electing whether to take by wife's will or descent under Burns' Ann. St. 1914, § 3046, providing for election by widower, does not affect validity of election. [Ed. Note.-For other cases, see Wills, Cent. Dig. §§ 2071-2073; Dec. Dig. 799.] 8. PARENT AND CHILD 3(1)-DUTY TO SUPPORT CHILD. A father is under no legal obligation personally to support or educate a child over 21 years old. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |
