Comth. v. Remington Type-writer Co.

105 S.W. 399, 127 Ky. 177, 1907 Ky. LEXIS 129

• Court: Court of Appeals of Kentucky
• Decided: November 22, 1907
• Status: Published

Opinion

Opinion op the Court by

Judge Carroll

Affirming.

The several appeals presenting the same questions of law will be disposed of together.

The appellees were proceeded- against in the Boyle circuit court by separate penal actions brought under authority of section 11 of the Criminal Code of Practice to recover the penalty for a violation of section 576 of the Kentucky Statutes of 1903, reading that: “Every corporation organized under the laws of this State, and every corporation doing business in this State, shall in a conspicuous place on its place or places of business, in letters sufficiently large to be easily read, have painted or printed the corporate name of such corporation, and immediately under the same in like manner shall be printed or painted the word ‘Incorporated.’ And immediately under the name of such corporation upon all printed or advertising matter used by such corporation, except railroad • companies, banks, trust companies-, insurance companies’, and .building and loan associations, shall appear in letters sufficiently large to be easily read the word ‘Incorporated.’ Any corporation which shall fail or refuse to- comply with the provisions of this section shall be subject to a fine of not less than one hundred dollars nor more than five hundred dollars. ’ ’ The petition against the Eemington Typewriter Company averred that it was a foreign corporation, with its designated office and agent upon whom process might be served located in Jefferson county, Ky., and was at the time set out in the petition doing business in this State; that it had printed in a newspaper published and circulated in Boyle county an advertisement without using therein the word “Incorporated.”' The petition against the Singer Sewing Machine Company alleged that it was a foreign corporation, with its designated office and agent upon whom process might be served located in Jefferson county, Ky., and having also a storeroom and place of business and agents in Boyle county; that it printed and circulated in Boyle county advertising matter in the form of an almanac, styled “The Singer Alma.nae, ” but failed to use in connection with the advertisement the word “Incorporated.” The- petition against the; Windisch-Muhlhauser Brewing Company .alleged that it was a foreign corporation, with a designated office and agent upon whom process might be served located in Campbell county, Ky.; that it caused to be printed advertising matter on official time tables of the Queen & Crescent Railroads, which were circulated in Boyle county. The petition against the Lexington Brewing Company alleged that it was a domestic corporation, with its principal place of business in Lexington, Fayette county, Ky.; that it caused to be inserted in the Lexington Herald, printed at Lexington, Ky., but which circulated in Boyle county, advertising matter without using the word * ‘ Incorporated. ” The lower court in ruling upon special and general demurrers filed to the petitions dismissed them. The special demurrer was sustained upon the ground that the Boyle circuit court had no jurisdiction, and the general demurrer because the statute was unconstitutional. The only question before us is the correctness of this ruling.

It will be noticed that three of the appellees are foreign corporations doing business in this State who have designated in the manner provided in section 571 of the Kentucky Statutes of 1903 the location of their respective offices in this State, and the name of their agents thereat upon whom process may be served, and that the principal office and place of business of the domestic corporation is in Fayette county, Ky. With the exception of- the Singer Sewing Machine Company, it is not charged that either of the other corporations had any place of business or agent in Boyle county. As to the machine company, it is averred that it had a storeroom and place of business and agents in Boyle county. In neither of the petitions is it alleged from what point the advertising matter was distributed, or what agent or agents procured the insertion of the advertisement or placed the advertising matter in circulation. We therefore assume that.as to the foreign corporations the advertising matter was procured to he inserted and printed, and distributed or circulated, by the authority of the corporations acting through their principal agents in the State; that is, by and through their agents located at the places they had designated as their principal places of business in this State, which in the case of two of' them was Jefferson county, and the other Campbell county. As to the domestic corporation, its advertisement was inserted in a newspaper published in the county of Fayette, in which it had its principal office and place of business. The provisions of the Civil Code of Parctice govern the service of process and venue of penal actions; section 51 providing that: “In an action against a private corporation a summons may be served in any county upon the defendant’s chief officer or agent who may be found in this State, or it may be served in the county where the action is brought upon the defendant’s chief officer or agent who may be found therein.” And section 63 that “actions must be brought in the county where the cause of action or some part thereof arose * * * for the recovery of a fine, penalty or forfeiture imposed by statute.” Observing the requirements of section 51, summons against the sewing machine company and the typewriter company were executed upon their respective agents in Jefferson county, a summons against the Windisch-Muhlhauser Brewing Company upon its designated agent in Campbell county, and á summons against the Lexington Brewing Company upon its chief officer in Fayette county. In view of the fact that section 63, supra, fixes the venue of actions like these, the first question to be determined is, in what county did the cause of action arise? as upon the solution of this depends in a large measure the question whether or not the Boyle circuit court had jurisdiction. If under section 576 of the statute the cause of action for its violation arises in any county in which any printed or advertising matter used by the corporation is circulated or distributed, the Boyle circuit court had jurisdiction, as would the circuit court of any other county in the State in which the advertising matter was used. In short, the contention of the Commonwealth is that if a domestic corporation having its office and principal place of business in this State, or a foreign corporation having an established place of business in this State, and an agent or officer thereat upon whom process may be served, inserts in a magazine, newspaper, or other medium for advertising published in or out of the State, it may be indicted or sued in any county in this State in which the magazine, newspaper or other instrumentality for advertising goes. Of course, the number of advertisements posted up or the number of. papers circulated or magazines distributed m the county does not affect the question. The liability would be- the same if one issue of the paper containing the advertisement happened-to find its way into the county. We do not think this a fair or proper construction of the statute. All foreign and domestic corporations doing business in this State are required by section 571 of the Kentucky Statutes of 1903 to “at all times have one or more known places of business in this State, and an authorized agent or agents thereat upon whom process can be served; and it shall not be lawful for any corporation to carry on any business in this State- until it shall have filed in the office of the Secretary of State ■a statement signed by its president or secretary, giving tbe location of its office or offices in this State, and the name or names of its agent or agents thereat upon whom process can be served.” The place so designated by the corporation is its home in this State, and whatever is done or omitted to be done by the corporation in violation of the statute in question may be traceable to the authority or direction of the persons in charge of its business at its home office. If it inserts and distributes or circulates advertising matter in the State, it may properly be chargeable to the same office.. The offense against the statute is committed at the place in this State where the authority or direction to use the illegal advertisement originated. That is where the cause of action arises, and that is the place whete the prosecution should be instituted. It will be readily agreed that this principle is sound so far as domestic corporations are concerned; but it is argued that it will not do to apply it to foreign corporations, because it is said, although the foreign corporation may have an established office and place of business in this State, yet the advertising matter might be sent from its office in another State or from some other point than its principal office in this State, and hence the offense could not be deemed to arise in the county where its residence in this State was established, as it was not committed in that county or by the persons there in charge of its business, and that, in prosecutions in that county against the corporation for a violation of this statute, it could successfully make defense upon the ground that, under section 63 of the Civil Code- of Practice, no part of the cause of complaint arose in that county. But such a plea or defense would not be available. Neither the foreign nor domestic corporation will be heard to say that the cause of action or, any part of it did not arise in the county where its principal' place of business in this State was situated, or in which it had a designated agent for the service of process, or permitted to shield itself from prosecution and punishment upon the defense that the advertising matter complained of was not furnished by or through or distributed from or through the agency of such office. Nor will the Commonwealth in a prosecution for violations of this statute in such county be required to do more than show that the advertising matter in violation of the statute was distributed in that or in some other county of the State. In prosecutions like these, where the venue of the action' is involved in some doubt, the court must determine the point. Ingram v. Turner, 51 S. W. 148, 21 Ky. Law Rep. 283. The Legislature did not undertake to localize the offense by declaring it would be committed at the place the advertisement was used. The penalty is denounced against the corporation that acts in violation of the statute. It is said in. argument that it is the “use” of the illegal advertising matter that constitutes the offense, and, if it is. not “used,” the statute is not violated, and hence it follows that the jurisdiction under the Code is in that county in which the advertising' is “used,” as it is there the offense arises. But the “use” in the meaning of the statute may exist at the place in this State from which the advertising is sent, or directed to be sent out; that is, at its chief office or principal and designated place of business. Indeed, at that point the chief offense is committed, and, although it may be continued in other places, the courts of the county where it originated in ay properly be given jurisdiction. The purpose of the statute was, of course, to prevent the use by the corporation of the advertising matter without complying with the law, and, when it has a principal office in this State and a designated place of business, it is fair to assume that the illegal use originated there, and at that place it should be prosecuted. The nature of the “use” of advertising matter is necessarily transitory. There is nothing in or about it that can be said to give it a local situs or habitation. It is here today and there to-morrow. Now in one county, there in another, as the interests 1 of the business may seem to demand. The offense against the statute is more certainly committed where its home office in this State is than in any county where a stray magazine or a fugitive newspaper might find its way, or other kind of advertising be used. In prosecutions for violations like this, it seems to us better for the interest of all parties concerned that the venue should be fixed in one county if it can with propriety be done, so that persons desiring to proceed against the corporation in default may know where to institute proceedings, and the corporation may know in what court it will be proceeded against. We doubt if the Commonwealth would contend that, if an advertisement in violation' of the statute was inserted in a newspaper that circulated in every county in the State, prosecutions might be instituted and convictions had in each of the 119 counties. In other words, could not a conviction in one county be pleaded as a bar to the prosecutions in the others? It is not, however, necessary to further elaborate this view. If it should be entertained by the court in a case where it was presented, only one recovery could be had, and this it seems to us should be in the county where its principal office or place of business in the State is located, or where its designated officer for service of process resides. Nor will the efficiency of the statute which subserves a useful purpose be impaired by this ruling.

A somewhat similar jurisdiction question came up in Commonwealth v. Grand Central Building & Loan Association, 97 Ky. 325, 17 Ky. Law Rep. 215, 30 S. W. 626. The building and loan association had its principal office and place of business in this State, in Campbell county, and was proceeded against by penal action in the Franklin circuit court for a violation of section 571 of the Kentucky Statutes of 1903; the offense charged being that it carried on business in this State without having filed in the office of the Secretary of State a. statement signed by its president or secretary giving the location of its office or offices in this State, and the name or names of its agent or agents thereat upon, whom process might be served. The court held that the offense was committed in Campbell county, and that the Franklin circuit court had no jurisdiction, although the acts, constituting the violation consisted in failing to file the certificate in Franklin county.

The vigorous attack made on the validity of the law is rested upon the groimd that it is unequal and partial legislation, in that it arbitrarily discriminates in favor of railroad companies, banks, trust, com; panies, insurance companies', and building and loan associations by exempting these corporations from its provisions. We do not regard the statute open to the objection urged against it. It is competent for the Legislature to classify persons and things and deal separately with each class, subject to the limitation that the law is not oppressive or unreasonable. In the exercise of this power, special and distinct laws have been enacted for the government of railroads, banks, trust companies, insurance companies, building and loan associations, and charitable corporations, and these acts are not objectionable because they deal with each class of corporations in a different manner from that followed with reference to other classes. The diverse business these and other classes of corporations are engaged in would make it impracticable to govern them by a general law, and so long as each is allowed the reasonable and free exercise of the powers granted to it, and is not burdened or harassed by legislation that is unreasonable, it cannot complain. No sound objection can be made to legislation of this character. As said in Cooley’s Constitutional Limitations, page 554: “Laws public in their objects may, unless express constitutional provisions forbid, be either general or local in their application. They may embrace many subjects, or one, and they may extend to all citizens or be confined to particular classes, as minors, or married women, bankers or traders, or the like. The authority that legislates for the State at large must determine whether the particular rule shall extend to the whole State and .all its citizens, or, on the other hand, to a subdivision of the State or a single class of its citizens only. These discriminations are made constantly, and the fact that the laws are of local or special operation only is not supposed to render them obnoxious in principle. The Legislature may also -deem it desirable to prescribe peculiar rules for the 'several occupations, and to establish distinctions in the «rights, obligations, duties, and capacities of citizens.” The case of Connolly v. Union Sewer Pipe Co., 184 U. S. 540, 22 Supt Ct. 431, 46 L. Ed. 679, relied on by counsel, for appellees, does not conflict with the principle announced by Cooley or the views expressed in this opinion. The point disposed of by the court in that case was that the statute condemned discriminated against persons engaged in the same general occupation by denouncing acts of oné of the class as criminal, while protecting and upholding the other. The Legislature may in its discretion-direct its efforts to one class of citizens, or one business and leave untouched other persons and occupations, or it may impose varying duties or burdens upon separate classes of persons or pursuits, and, so long as they are not unreasonable, the persons singled out will not' be heard to question the validity of the enactment merely because like burdens or duties were not required from all the people or all the occupations, professions, or pursuits. Tested by these general rules, the law in question is neither arbitrary, oppressive, nor unreasonable. The duty imposed is simple, inexpensive, and easily performed. Legislation of this character -is so common, and is exercised in so many various ways, and operates so differently, that it would be unprofitable to point out the numerous instances of its application found in the statutes and approved by the court. In laws of this character there is really no discrimination for or against any individual or corporation, but persons and corporations engaged in the same occupations, for purposes of public policy and the better protection of the people, are dealt with as a class. It must be apparent to every one that a set of laws intended to control and regulate the banking business would be entirely inapplicable to a corporation engaged in manufacturing typewriters; and an act authorizing persons to form a corporation to sell sewing machines would he totally inadequate for the formation of insurance companies or railroads. These illustrations sufficiently show the necessity for 'legislating differently for corporations engaged in diverse enterprises classifying each corporation separately, and we do not understand that any court has held that this within reasonable limitations may not be done. State v. Mitchell, 97 Me. 66, 53 Atl. 887, 94 Am. St. Rep. 481.

A large part of the commercial and manufacturing business of the country is transacted by corporations, acting through their agents, and the purpose of the statute was to inform the public generally as well as individuals whether or not the concern they were dealing with was a person, partnership, or corporation, so that they might know what property they could look to for the collection of debts or the enforcement of contract rights. In corporations the individual property of the stockholders is not liable for the corporate debts, and in many instances the corporations themselves are not only irresponsible, but insolvent, and motives of public policy induced the enactment of this law, intended for the protection of the people of the State. Jung Brewing Co. v. Commonwealth, 123 Ky. 389, 507, 96 S. W. 476, 29 Ky. Law Rep. 821; Commonwealth v. American Snuff Co., 125 Ky. 350, 101 S. W. 364, 30 Ky. Law Rep. 1373. In line with these reasons, notes, taken by peddlers must be indorsed “Peddlers’ notes,” and in Bohon’s Assignee v. Brown, 101 Ky. 354, 357, 41 S. W. 273, 19 Ky. Law Rep. 540, 38 L. R. A. 503, 72 Am. St. Rep. 420, thife* court sáid: “The right to prescribe regulations for the protection of its citizens against fraud and imposition is not taken from the State by the federal Constitution, or by any national statute;' on the contrary, it may be considered as having been authoritatively settled that the national government cannot exercise police powers for the protection of the inhabitants of a state.” Supporting this position are cited numerous cases. In Schoolcraft’s Adm’r v. L. & N. R. Co., 92 Ky. 233, 17 S. W. 567. 13 Ky. Law Rep. 517, in considering the rights of representatives of a person not in the employment of the railroad company to recover punitive damages where his death was caused by the wilful neglect of the corporation, the court, in answer to the argument that it was discriminatory and unequal legislation, said: “Such a statute affects all similarly situated. It imposes the same burden upon all in a like business, and therefore affords equal protection. While in a broad sense of the term it is special legislation,. yet it is not of such a character as to fall within the constitutional inhibition.” The propriety of exempting banks, railroads, trust companies, insurance companies, and building and loan associations from the operation of this law might also be safely placed on the ground that the business these corporations are engaged in cannot be conducted except by corporations. An individual or partnership cannot under-the statute establish or operate a railroad, bank, trust company, insurance company, or building and loan association. Every person who deals with them knows they are corporations, and hence there is no necessity or reason why they should be required to place upon advertising matter notice of this kind. The protection of the public or persons dealing with them does not make it important that this should be done. But a dry goods store,' grocery, hardware establishment, or any other lawful business — excepting those heretofore mentioned — may be carried on by an individual, partnership', or corporation. The classification and exemption mentioned in the statute is not discriminatory, unequal, or partial legislation in the meaning of the Constitution of the State or the United States, but prosecutions under it must be in that county in which the corporation has its principal office or place' of business in this State or im that county where it has an officer or agent designated by it for the service of process.

The ruling of the lower court in sustaining the demurrer to the jurisdiction was correct, and the judgment in each case is affirmed.