Florsheim Bros. Dry Goods Co. v. Lester

Supreme Court of Arkansas

Florsheim Bros. Dry Goods Co. v. Lester

27 L.R.A. 505, 29 S.W. 34, 60 Ark. 120, 1895 Ark. LEXIS 126

CourtSupreme Court of Arkansas

DecidedJanuary 5, 1895

StatusPublished

Cited by25 cases

This text of 27 L.R.A. 505 (Florsheim Bros. Dry Goods Co. v. Lester) is published on Counsel Stack Legal Research, covering Supreme Court of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Florsheim Bros. Dry Goods Co. v. Lester, 27 L.R.A. 505, 29 S.W. 34, 60 Ark. 120, 1895 Ark. LEXIS 126 (Ark. 1895).

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Opinion

Hughes, J.,

(after stating the facts.) The only question in this case is whether the taking of a single mortgage in this State, by a foreign corporation, for a past-due indebtedness for goods sold in the foreign State, the domicil of the foreign corporation, is doing business in this State, within the meaning of the constitution and the act of the general assembly above quoted. There can be no doubt that the sale and shipment of the goods was interstate commerce. It does not matter, then, how many sales and shipments there might have been ; they could not be prohibited by the statute. There is no evidence that more than one mortgage was taken by the appellant in this State. Was the taking of this mortgage doing any business prohibited by the laws of this State to be done by a foreign corporation before complying with the provisions of the constitution and statute referred to ? If so, the mortgage cannot be enforced in the courts of this State; for, if a single act of business be done by a foreign corporation in this State, within the meaning of these provisions of the law, it is as much within the prohibition contained in them as any number of acts of business would be. But we are of the opinion that the taking of a single mortgage to secure a past-due debt, with no intention apparent to transact other business of the kind in the State, is not doing business within the meaning of the constitution or the statute.

There is a division of authorities on this question. But we think the better view of the question is presented in Cooper Manufacturing Co. v. Ferguson, 113 U. S. 727, in which the court said: “Reasonably construed, the constitution and statute of Colorado forbid, not the doing of a single act of business in the State, but the carrying on of business by a foreign corporation without the filing of the certifiicate and the appointment of an agent, as required by the statute. The constitution requires the foreign corporation to have one or more known places of business in the State before doing any business therein. This implies a purpose at least to do more than one act of business. Por a corporation that has done but a single act of business, and purposes to do no more, cannot have one or more known places of business in the State. To have known places of business, it must be carrying on or intending to carry on business. The statute passed to carry the provision of the constitution into effect makes this plain, for the certificate which it requires to be filed by a foreign corporation must designate the principal place in the State where the business of the corporation is to be carried on. • The meaning of the phrase ‘to carry on,’ when applied to business, is well settled. In Worcester’s Dictionary the definition is: ‘To prosecute, to help forward, to continue, as to carry on business,’etc. * * The obvious construction, therefore, of the constitution and the statute is that no foreign corporation shall begin any business in the State, with the purpose of pursuing or carrying it on, until it has filed a certificate designating the principal place where the business of the corporation is to be carried on in the State, and naming an authorized agent, residing at such principal place of business, on whom process may be served. To require such a certificate as a prerequisite to the doing of a single act of business, when there was no purpose to do any other business, or have a place of business in this State, would be unreasonable and incongruous.”

The constitution and statute of Colorado, construed in this opinion, are substantially the same as ours. The strongest case, perhaps, apparently in conflict with the case in 113 U. S. is Farrior v. New England Mortgage Security Co., an Alabama case, reported in 28 A. & E. Corp. Cases, 2.

The demurrer to the answer of appellees should have been sustained.

The judgment is reversed, and the cause is remanded, with directions to sustain the demurrer to the answer.

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Hughes, J.,

(after stating the facts.) The only question in this case is whether the taking of a single mortgage in this State, by a foreign corporation, for a past-due indebtedness for goods sold in the foreign State, the domicil of the foreign corporation, is doing business in this State, within the meaning of the constitution and the act of the general assembly above quoted. There can be no doubt that the sale and shipment of the goods was interstate commerce. It does not matter, then, how many sales and shipments there might have been ; they could not be prohibited by the statute. There is no evidence that more than one mortgage was taken by the appellant in this State. Was the taking of this mortgage doing any business prohibited by the laws of this State to be done by a foreign corporation before complying with the provisions of the constitution and statute referred to ? If so, the mortgage cannot be enforced in the courts of this State; for, if a single act of business be done by a foreign corporation in this State, within the meaning of these provisions of the law, it is as much within the prohibition contained in them as any number of acts of business would be. But we are of the opinion that the taking of a single mortgage to secure a past-due debt, with no intention apparent to transact other business of the kind in the State, is not doing business within the meaning of the constitution or the statute.

There is a division of authorities on this question. But we think the better view of the question is presented in Cooper Manufacturing Co. v. Ferguson, 113 U. S. 727, in which the court said: “Reasonably construed, the constitution and statute of Colorado forbid, not the doing of a single act of business in the State, but the carrying on of business by a foreign corporation without the filing of the certifiicate and the appointment of an agent, as required by the statute. The constitution requires the foreign corporation to have one or more known places of business in the State before doing any business therein. This implies a purpose at least to do more than one act of business. Por a corporation that has done but a single act of business, and purposes to do no more, cannot have one or more known places of business in the State. To have known places of business, it must be carrying on or intending to carry on business. The statute passed to carry the provision of the constitution into effect makes this plain, for the certificate which it requires to be filed by a foreign corporation must designate the principal place in the State where the business of the corporation is to be carried on. • The meaning of the phrase ‘to carry on,’ when applied to business, is well settled. In Worcester’s Dictionary the definition is: ‘To prosecute, to help forward, to continue, as to carry on business,’etc. * * The obvious construction, therefore, of the constitution and the statute is that no foreign corporation shall begin any business in the State, with the purpose of pursuing or carrying it on, until it has filed a certificate designating the principal place where the business of the corporation is to be carried on in the State, and naming an authorized agent, residing at such principal place of business, on whom process may be served. To require such a certificate as a prerequisite to the doing of a single act of business, when there was no purpose to do any other business, or have a place of business in this State, would be unreasonable and incongruous.”

The constitution and statute of Colorado, construed in this opinion, are substantially the same as ours. The strongest case, perhaps, apparently in conflict with the case in 113 U. S. is Farrior v. New England Mortgage Security Co., an Alabama case, reported in 28 A. & E. Corp. Cases, 2.

The demurrer to the answer of appellees should have been sustained.

The judgment is reversed, and the cause is remanded, with directions to sustain the demurrer to the answer.

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27 L.R.A. 505, 29 S.W. 34, 60 Ark. 120, 1895 Ark. LEXIS 126, Counsel Stack Legal Research, https://law.counselstack.com/opinion/florsheim-bros-dry-goods-co-v-lester-ark-1895.

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