LEWIS, J.
Respondent commenced this action in the justice court, and caused the summons to be served upon PI. M. Eewis, who claimed to be the ticket agent of appellant company at the city of St. Paul. Appellant appeared specially and moved to set aside the attempted service upon the ground that Eewis was not the agent of appellant.
In support of the motion three affidavits were read: One by E. Pennington, vice president and general manager of the Minneapolis, [266] St. Paul & Sault Ste. Marie Railway Company, to the effect that appellant company neither owns nor operates any railway within the state of Minnesota; that the “Soo” road operates lines of railway in connection with appellant, and maintains joint traffic relations with that company; that the agents of the Soo road sell through tickets over its own line, and the line of the Canadian Pacific Railway Company, and other lines, to Boston, New York, and other points; that H. M. Lewis is the assistant general passenger agent of the Soo at St. Paul, appointed and paid by that company; and that he receives no compensation from appellant, and is in no way subject to its authority or control. The affidavit of Robert Kerr affirms that he is the passenger traffic agent of appellant company, and that his general office is at Montreal, Canada; that H. M. Lewis had never been the agent of appellant, and had no authority to act for it, except that he was authorized “to quote joint rates and issue through joint tickets good over the lines of the said Minneapolis, St. Paul & Sault Ste. Marie Railway Company and the Canadian Pacific Railway Company, as is generally done by a number of foreign roads with which the railway of the said Canadian Pacific Railway Company connects or the traffic arrangements with which permit of joint rates and through routes; that he collects and handles no money for or on behalf of said company, is under no bond to it, keeps no accounts for it, is not on its pay rolls, and performs no service or duties for said company, and receives no remuneration from said company, was not selected or appointed by it, and said company exercises no control over him whatsoever.”
Respondent testified that he had been in appellant’s employ for six months as a porter; that he knew of the Canadian Pacific Railway Company having a ticket agent in St. Paul, selling their tickets, and that he had taken them up while in their employ, and knew of parties, going to the office on Robert street in St. Paul and buying tickets over appellant’s line; that appellant runs its passenger trains into St. Paul over the Soo Line. Another witness, M. Maclin, stated that he had been in the employ of appellant for six months as a conductor and porter, and had handled the tickets sold by its agents in St. Paul over the line of appellant company out of St. Paul to points along its line elsewhere; that appellant runs its trains into St. Paul with cars bearing [267] the words “Canadian Pacific Railway Company” upon them. The constable, Poucher, who served the summons upon Mr. Rewis, testified that when he made service of the summons on Rewis he asked him if he was the ticket agent and was engaged in selling tickets for the Canadian Pacific Railway Company, and that Rewis stated that he was, whereupon the witness said, “You are the man I want,” and served him with a copy of the summons.
Rewis deposed that he was the assistant general passenger agent of the Minneapolis, St. Paul & Sault Ste. Marie_ Railway Company in the city of St. Paul, and in its exclusive employment and service; that he had never been an agent of'the said Canadian Pacific Railway Company; that he made no contracts, and collected and handled no money, for or on behalf of it, was under no bond to it, kept no accounts for it, was not on its pay rolls, and was not selected or appointed by it; and that appellant exercised no control over him whatever and was without power to discharge him.
We think it conclusively appears, from the various affidavits and evidence, that at the time of the service of the summons appellant did not own or operate any railway within the state of Minnesota; that by some traffic arrangement, which does not appear, the cars of appellant were run over the Soo road from the United States border line into the city of St. Paul; that Rewis was the agent of the Soo Company, and not of appellant, in the sense, at least, that he had any contractual relations with it. Whatever may have been the traffic arrangement between the two companies under which appellant’s cars were sent into Minnesota, the business transacted by Rewis was not the business of appellant. Although the affidavits on behalf of appellant are somewhat equivocal, stating conclusions rather than facts, yet it was clearly established that the only tickets Rewis sold were joint tickets, good over the Minneapolis, St. Paul & Sault Ste. Marie Railway Company Rine in the United States, and over the Canadian Pacific Rine beyond. Rewis, therefore, represented appellant in the same manner that any ticket agent in the city of St. Paul may be said to represent any foreign company with which a local line may have traffic arrangements. The testimony of respondent and the other witness that they knew tickets were sold over the Canadian Rine, and that they had taken up tickets over that line, does not con[268] tradict the clear statement of the affidavits that the only tickets sold were through joint tickets.
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LEWIS, J.
Respondent commenced this action in the justice court, and caused the summons to be served upon PI. M. Eewis, who claimed to be the ticket agent of appellant company at the city of St. Paul. Appellant appeared specially and moved to set aside the attempted service upon the ground that Eewis was not the agent of appellant.
In support of the motion three affidavits were read: One by E. Pennington, vice president and general manager of the Minneapolis, [266] St. Paul & Sault Ste. Marie Railway Company, to the effect that appellant company neither owns nor operates any railway within the state of Minnesota; that the “Soo” road operates lines of railway in connection with appellant, and maintains joint traffic relations with that company; that the agents of the Soo road sell through tickets over its own line, and the line of the Canadian Pacific Railway Company, and other lines, to Boston, New York, and other points; that H. M. Lewis is the assistant general passenger agent of the Soo at St. Paul, appointed and paid by that company; and that he receives no compensation from appellant, and is in no way subject to its authority or control. The affidavit of Robert Kerr affirms that he is the passenger traffic agent of appellant company, and that his general office is at Montreal, Canada; that H. M. Lewis had never been the agent of appellant, and had no authority to act for it, except that he was authorized “to quote joint rates and issue through joint tickets good over the lines of the said Minneapolis, St. Paul & Sault Ste. Marie Railway Company and the Canadian Pacific Railway Company, as is generally done by a number of foreign roads with which the railway of the said Canadian Pacific Railway Company connects or the traffic arrangements with which permit of joint rates and through routes; that he collects and handles no money for or on behalf of said company, is under no bond to it, keeps no accounts for it, is not on its pay rolls, and performs no service or duties for said company, and receives no remuneration from said company, was not selected or appointed by it, and said company exercises no control over him whatsoever.”
Respondent testified that he had been in appellant’s employ for six months as a porter; that he knew of the Canadian Pacific Railway Company having a ticket agent in St. Paul, selling their tickets, and that he had taken them up while in their employ, and knew of parties, going to the office on Robert street in St. Paul and buying tickets over appellant’s line; that appellant runs its passenger trains into St. Paul over the Soo Line. Another witness, M. Maclin, stated that he had been in the employ of appellant for six months as a conductor and porter, and had handled the tickets sold by its agents in St. Paul over the line of appellant company out of St. Paul to points along its line elsewhere; that appellant runs its trains into St. Paul with cars bearing [267] the words “Canadian Pacific Railway Company” upon them. The constable, Poucher, who served the summons upon Mr. Rewis, testified that when he made service of the summons on Rewis he asked him if he was the ticket agent and was engaged in selling tickets for the Canadian Pacific Railway Company, and that Rewis stated that he was, whereupon the witness said, “You are the man I want,” and served him with a copy of the summons.
Rewis deposed that he was the assistant general passenger agent of the Minneapolis, St. Paul & Sault Ste. Marie_ Railway Company in the city of St. Paul, and in its exclusive employment and service; that he had never been an agent of'the said Canadian Pacific Railway Company; that he made no contracts, and collected and handled no money, for or on behalf of it, was under no bond to it, kept no accounts for it, was not on its pay rolls, and was not selected or appointed by it; and that appellant exercised no control over him whatever and was without power to discharge him.
We think it conclusively appears, from the various affidavits and evidence, that at the time of the service of the summons appellant did not own or operate any railway within the state of Minnesota; that by some traffic arrangement, which does not appear, the cars of appellant were run over the Soo road from the United States border line into the city of St. Paul; that Rewis was the agent of the Soo Company, and not of appellant, in the sense, at least, that he had any contractual relations with it. Whatever may have been the traffic arrangement between the two companies under which appellant’s cars were sent into Minnesota, the business transacted by Rewis was not the business of appellant. Although the affidavits on behalf of appellant are somewhat equivocal, stating conclusions rather than facts, yet it was clearly established that the only tickets Rewis sold were joint tickets, good over the Minneapolis, St. Paul & Sault Ste. Marie Railway Company Rine in the United States, and over the Canadian Pacific Rine beyond. Rewis, therefore, represented appellant in the same manner that any ticket agent in the city of St. Paul may be said to represent any foreign company with which a local line may have traffic arrangements. The testimony of respondent and the other witness that they knew tickets were sold over the Canadian Rine, and that they had taken up tickets over that line, does not con[268] tradict the clear statement of the affidavits that the only tickets sold were through joint tickets.
With reference to this state of facts we are required to construe section 4110, R. R. 1905: “In any action or proceeding against a railway company, whether domestic or foreign * * * service of the summons and of all notices required to be served therein may be made by delivering a copy thereof to any ticket or freight agent of such company within the county in which the action or proceeding is begun, with the same effect as though made pursuant to § 4109.” Was Rewis the agent, within the meaning of this statute? An agent engaged in selling tickets at a union depot is an acting ticket agent, within the meaning of section 5202, G. S. 1894, when the agent is performing duties for the roads doing business within the state. Hillary v. Great Northern Ry. Co., 64 Minn. 361, 67 N. W. 80, 32 L. R. A. 448. That decision was based upon the ground that the agent was performing the duties of a ticket agent for the Great Northern Railway Company, and that the company availed itself of his services. The Great Northern Railway Company operated its trains into the union depot, and its tickets were sold by means of the agents employed by the Minneapolis Union Railway Company, which company operated the depot. The court laid some stress upon the use of the word “acting”; but that word is of no importance, and it was dropped in the Revised Raws of 1905. The distinction between an agent, as defined by section 4109, and as defined by section 4110, R. R. 1905, was clearly pointed out in Hillary v. Great Northern Ry. Co., supra. An agent, under section 4109, is one having in fact representative capacity and derivative authority. Wold v. J. B. Colt Co., 102 Minn. 386, 114 N. W. 243; North Wis. Cattle Co. v. Oregon S. L. Ry. Co., 105 Minn. 198, 117 N. W. 391. But a ticket agent of a railway company, under section 4110, is not necessarily one “in the eye of the law arising from a contract of employment, and responsible to his principal and subject to be discharged by it.” To constitute an agency within the meaning of section 4110, there must be a performance of duties for the benefit of the company, or a performance of duties of which the company avails itself. Such condition may occur in the absence of any contractual relation. Although Rewis was not the agent of appellant company, he might be a ticket agent within the meaning of the stat[269] ute, provided it appeared that the company availed itself of the benefit of his services. He would be an agent, within the statute, if the .railway company was operating a railroad, or trains, or cars, within this state, or if its cars came into the state under circumstances which would reasonably give rise to the inference that it was doing business in the state. A joint traffic arrangement, under which the Soo Line hauls the cars of appellant within the state, does not constitute the operation of a railroad; nor is it the transaction of business within the principle of the Hillary case.
Reversed.