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collaterally inquired of in a mandamus pro- panies the clause of section 1754, authorizing ceeding brought under the above statute to suit in any county where a corporation has an compel the registration of bonds. State ex agent for doing business, would render it unrel. v. Dillon, 87 Mo. 487; State ex rel. v. venue in civil cases, contrary to Const. art. 4, 8

constitutional as a special statute changing the

; Francis, 88 Mo. 557; State ex rel. v. Hough, 53, subd. 4. (Per Faris and Walker, JJ.)

', 193 Mo. loc. cit. 643, 91 S. W. 905; Kehr v. 5. CONSTITUTIONAL LAW Cm 309(3) - INSURColumbia, 136 Mo. App. 322, 116 S. W. 428;

ANCE 4-SERVICE ON FOREIGN CORPORA

TIƠN-DUE PROCESS. State ex rel. v. Elkins, 130 Mo. 90, 30 S. W.

Rev. St. 1909, $ 7042, as to service of process 333, 31 S. W. 1037; State v. Gamma, 149 Mo. upon foreign insurance corporations, is not a App. 694, 129 S. W. 734.

violation of the “due process of law”. of Const. [6] Our conclusion is that upon the pres corporation to be sued where any corporation is

. , 1, it a entation of the bonds to the state auditor, suable. (Per Graves, C. J., and Paris and Walkunder the circumstances and facts of the er, JJ.) present record, a prima facie showing was

Graves, C. J., .dissenting in part. Woodson, made that they had been issued in compli- J., dissenting. ance with the conditions prescribed by law, and that it was his specific duty to have reg

Original proceeding by prohibition by the istered them in the manner prescribed in the State of Missouri, at the relation of the above statute.

Standard Fire Insurance Company of HartIt follows that the alternative writ of man- ford, Conn., against Hon. Ernest s. Gantt, damus heretofore awarded is made perma- Judge of the Circuit Court of Audrain nent. It is so ordered.

County, Eleventh Judicial Circuit. Writ

quashed. WALKER, WOODSON, and WILLIAMS, This is an original proceeding by prohibi

GRAVES, C. J., and BLAIR, tion, whereby it is sought to prohibit reJ., concur in paragraphs II, III, IV, and V, spondent, as judge of the circuit court of and result. FARIS, J., dissents.

Audrain county, from taking further action in a certain cause wherein the St. Louis

Carbonating & Manufacturing Company is (274 Mo. 490)

plaintiff and relator herein is defendant. The STATE ex rel. STANDARD FIRE INS. CO. facts necessary to an understanding of the OF HARTFORD, CONN., V. GANTT, points involved are few and simple, and run Circuit Judge. (No. 20428.)

substantially thus: (Supreme Court of Missouri. In Banc. May 17,

The said St. Louis Carbonating & Manu1918.)

facturing Company (hereinafter for brevity

called "Carbonating Company') is a Missou1. CONSTITUTIONAL LAW Ow42–WHO MAY ri corporation, having its principal office and QUESTION CONSTITUTIONALITY OF LAW.

A foreign insurance company which had filed place of business in the city of St. Louis. a power of attorney to accept service with the At and prior to the 22d day of May, 1917, state superintendent of insurance pursuant to the Carbonating Company held a policy of Rev. St. 1909, § 7042, could not urge the unconstitutionality of that statute in connection with fire insurance in the relator company for its objection to jurisdiction acquired by service the sum of $1,000, which policy insured for upon such officer, for, since if the statute was one year certain property of the Carbonating void it : § 6013, requiring such a company to designate Company located in the city of St. Louis. some person as its agent to accept process, it This property so covered by the insurance would be immaterial whether the designation of policy aforesaid was on the date stated such officer was under one statute or the other. above damaged by fire. Thereafter, and up(Per Graves, C. J., and Faris and Walker, JJ.)

on relator's refusal to pay the sum set out 2. INSURANCE em 26 - FOREIGN INSURANCE in said policy of insurance, plaintiff brought COMPANIES-STATUTE.

Rev. St. 1909, $ 7042, requiring foreign in-suit thereon in the circuit court of Audrain, surance companies to designate the superintend-county, Mo. Summons in said action was ent of insurance as attorney in fact to accept issued out of the Audrain county circuit service, is a service statute, and not a venue statute. (Per Graves, c. I., and Faris and court, sent to the sheriff of Cole county, and Walker, JJ.)

by said sheriff served upon W. K. Chorn, 3. INSURANCE E 618 - FOREIGN CORPORA- superintendent of the insurance department TIONS-ACTIONS-VENUE.

of the state of Missouri. Thereafter, and Under Rev. St. 1909, $ 1754, as to venue of on the 3d day of September, 1917, relator, suits against corporations, a foreign insurance who was the defendant in the insurance accorporation is suable either in the county where the cause of action arose or in any county where tion, filed in the circuit court of Audrain it has an agent for the transaction of business. county what it denominates a special entry (Per Graves, C. J., and Faris and Walker, JJ.) of appearance for the purpose of excepting 4. STATUTES 85(1) - SPECIAL LAWS-FOR- to the jurisdiction of that court, and a moEIGN CORPORATIONS-ACTIONS-VENUE. tion to quash service and dismiss the cause

Rev. St. 1909, § 7042, providing for serv- for want of such jurisdiction. Pertinent ice upon the superintendent of insurance as agent of a foreign insurance company, if con- parts of relator's said motion, which more strued as destroying the effect as to such com- adequately and correctly than any mere ex

cerpt therefrom would do state relator's po- , tion. Thereupon relator moved for judgment sition and the precise nature of its attack upon the pleadings, which leaves the cause to upon the jurisdiction of the Audrain circuit be determined upon the law as applied to the court, read thus:

facts stated in relator's petition. The un"That the bringing and maintenance of this constitutionality of section 7042, R. S. 1909, suit in this honorable court is an abuse of the is also urged by relator, in addition to matjurisdiction of this court, designed by plaintiff to employ a judicial agency in the state of Mis-ters set out in the excerpt which we quote souri to compel defendant to submit to disad- from its motion and which are bottomed on vantages and inconveniences in the trial of its averred lack of jurisdiction. The facts makjust defenses to plaintiff's alleged cause of ac. ing clear this constitutional attack will be tion. That by section 1 of the Fourteenth Amendment to the Constitution of the United set forth fully in our discussion of the case, States it is provided: 'No state shall make or as will also such further facts as may be necenforce any law which shall abridge the privileges or immunities of citizens of the United essary to make clear what we shall say. States, nor shall any state deprive any person of life, liberty or property without due process relator. Fauntleroy, Cullen & Hay, of St.

Leahy, Saunders & Barth, of St. Louis, for , of law, nor deny to any person within its jurisdiction the equal protection of the laws. That Louis, for respondent.

' section 30, art. 2, of the Constitution of Missouri, provides: 'That no person shall be de- FARIS, J. (after stating the facts as prived of life, liberty or property without due above). Counsel for relator insist that the process of law.' That section 10, art. 2, of the Constitution of Missouri, provides: Section 10. precise question involved in this action is Courts of Justice Must be Open. The courts of one of first impression in this state. justice must be open to every person, and certain have been, they concede, suits brought by remedy afforded for every injury to person, property or character, and that right and jus- nonresidents against foreign insurance com

, tice should be administered without sale, denial panies (cf. Gold Issue, etc., Co. v. Pennsylor delay.' That section 53, art. 4, of the Con- vania Ins. Co., 267. Mo. 524, 184 S. W. 999), stitution of Missouri, provides that: “The Gen- wherein the contention was made that no court eral Assembly shall not pass any local or special law. * *

* (4) Changing the venue in civil of this state had jurisdiction; cases wherein or criminal cases. That the bringing and main- a nonresident sued, in a personally selected tenance of this suit in this honorable court by or hand-picked forum, a licensed and localizthe plaintiff is in pursuance of the exercise by ed foreign business corporation (State ex rel. said plaintiff of an asserted right to institute

( its alleged cause of action in any county in this v. Jones, 270 Mo. 230, 192 S. W. 980 [not yet state without restriction and according to the officially reported]); likewise a case wherein

a choice and judgment of plaintiff as to which county in said state would best suit said plain- an action was brought before a justice of the tiff's purposes and interests, and for the pur- peace of one county by a resident of another pose of compelling defendant to make its de county against a licensed foreign insurance fenses away from the scene of the facts and the evidence and in a community where the ju- company (Meyer v. Insurance Co., 184 Mo. rors are drawn generally and usually from the 481, 83 S. W. 479); but no case such as this, class engaged in agricultural pursuits and un- wherein it is admitted that jurisdiction lies familiar with the usual and ordinary conditions at the domicile of plaintiff, where the cause

of tracts or policies of fire insurance in said city of action accrued, but denied that it lies in of St. Louis. That therefore there has been no each of the 114 counties of this state at plainproper or lawful service of summons in this tiff's arbitrary selection. cause upon this defendant, and that said at

Relator's contentions are two: (a) The act tempted service is null and void for the reasons herein set forth. That under and by virtue of of 1885 (Laws 1885, pp. 183, 184), now section the laws of this state (Revised Statutes of Mis- 7042, R. S. 1909, is unconstitutional and void souri 1909, $ 7042) defendant delivered, prior to because the title thereof recites that it is the institution of this suit, to the superintendent of insurance of the state of Missouri, a pow- proposed to amend the then existing law, to er of attorney authorizing said officer to receive wit, section 6013, R. S. 1879, whereas what the service of summons in suits instituted was actually done by said act in the body against it in the courts of this state in compli- thereof was to repeal the whole of said secance with the laws of Missouri, as averred in said petition. Defendant further states that tion 6013 and enact a new section (now secsaid issue and delivery of summons herein to tion 7042, supra) in lieu thereof; and (b) said officer was unauthorized by said statute and that the circuit court of Audrain county got said power of attorney for the reason that said suit was not instituted in said city of St. Louis, no jurisdiction to hear and determine this state of Missouri, wherein plaintiff's alleged case because the plaintiff in the action to cause of action accrued, and wherein the same which the instant suit is ancillary is a resishould be prosecuted.”

dent of the city of St. Louis, the cause of This motion of relator to dismiss for lack action accrued in said city, and defendant is of jurisdiction and to quash service for the a foreign but licensed insurance company, same reason was overruled, and the circuit which has duly executed and filed a power of court of Audrain county was proceeding, as attorney authorizing the state superintendrelator avers, with the hearing of said cause; ent of insurance to receive and accept service whereupon relator applied to this court and of process in all actions brought against it. we issued our preliminary rule in prohibition. These in their order, To this preliminary rule respondent duly [1] I. We may pass over the contention made return, which return admits all ma- made that section 7042 is unconstitutional on terial facts to be as pleaded in relator's peti- account of alleged defects existing in the

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title of the act when it was originally passed, as is apposite to this discussion it will make in 1885, because, even if this point be well no difference whether we look to the old taken, it can in no way affect or aid relator. statute or to the new statute. We will disFor relator has already filed a power of at- regard the constitutional question for the torney with the state superintendent of in- reasons stated, and look to section 7042, R. S. surance, making this officer its attorney in 1909. fact for the purpose of receiving or accepting [2] We think it is obvious beyond cavil service of all process in actions brought that section 7042, supra, is a service statute against it in this state. If, therefore, the and not, what we may denominate for conact of 1885 is wholly void, as the alleged in- venience, a venue statute. This section nofirmity if existent would render it, it did not where provides, nor attempts to provide, affect or repeal section 6013, R. S. 1879, where any action shall be instituted. Actions which provided that a foreign insurance com- having been brought in any county of the pany, as a condition precedent to being au- stąte wherein cæteris paribus the proper thorized to transact business in this state, venue attaches, service of process therein must execute and file a power of attorney may, under section 7042, be had upon the designating and authorizing some person as state superintendent of insurance. This view its attorney in fact to accept and receive we think follows the very plain language of service of process, and therefore said section the section. Cogent and compelling toward 6013 is yet in force. 36 Cyc. 1056. No reason the correctness of this view also is the fact appears why, absent the provision in said that, when the provision requiring foreign section 7042, which specifically designates the insurance companies to designate an agent on state superintendent of insurance as the per- whom service could be had first came into our son who shall be named as such attorney in statutes, it provided that the resolution of fact, such' superintendent could not have been the board of directors should authorize servnamed as such attorney in fact under the ice upon such designated agent in all suits provisions of said section 6013. Since relat- against the company "in any court in this or saw fit voluntarily to designate as its at state having competent jurisdiction.” R. S. torney in fact the very person who is pointed 1855, p. 885, § 1. Besides, as we shall hereout by the act of 1885 as being the only per- after demonstrate, if it be construed as a son to be so designated, and since under sec- statute prescribing the venue in actions tion 6013, R. S. 1879, which is in force if, sec- against foreign insurance companies, it would tion 7042, R. S. 1909, is void, the state su- contravene the inhibition contained in subperintendent could have been so designated, division 4 of section 53 of article 4 of the it can make no very material difference to re- Constitution. lator whether such designation of its at- The point here vexing us is, in its final torney in fact was made pursuant to the act analysis, a question wholly of venue; otherof 1885, or pursuant to the provisions of said wise we could close the discussion and resection 6013. Manifestly in such situation fuse to issue our absolute writ in prohibithe contention of relator as to the uncon- tion out of hand. For if the circuit court stitutionality of the act of 1885 is untena- has jurisdiction to hear and determine the ble. For, conceding for the sake of the ar-case out of which the instant prohibition gument that its contentions in this behalf case grew, if the service is good, then the are well taken from an academic point of proceeding to hear it upon a bad service is view, yet its designation of the state super- but a mere error capable of correction upon intendent of insurance as its attorney in fact appeal, and ordinarily prohibition will not having been fully authorized by the law ex- lie. But if upon no sort of service the Auisting upon the subject when the act of 1885 drain circuit court could acquire jurisdiction was passed, relator is in no wise hurt or af- to hear and determine the case, prohibition fected by the latter act, and so it cannot be will lie. So whether such absolute lack of heard to urge its unconstitutionality. City of jurisdiction shall arise from the fact that Lexington ex rel. v. Bank, 165. Mo. 671, 65 S. service of process issuing out of the circuit W. 943; 36 Cyc. 1056.

court by Audrain county when served upon II. The pertinent language of section 6013, the state superintendent of insurance conR. S. 1879, is verbatim with that of the act ferred no jurisdiction, or whether such lack of 1885, now section 7042, R. S. 1909. Both of jurisdiction arose from lack of statutory sections provide that "in all proceedings that venue in that county, makes no particular may be instituted against such company, in difference. It is at best a bare question of any court of this state or in any court of venue. If the venue under the facts is in the United States in this state,” service of the circuit court of Audrain county, then process therein may be had upon the attorney the writ of prohibition should be quashed; in fact which the company shall designate if it is not in said court, then the writ should by its filed power of attorney. Under the ex- be made absolute. isting statute the superintendent of insur- Venue is fixed by either section 1754 or ance must be the person so designated, while by section 1751, R. S. 1909, or by both of under the former statute any person could these sections construed in pari materia.

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in further proceedings are sought by the sumed, so far as is here apposite, the very instant case to be prohibited, may, being a form in which section 1751, R. S. 1909, now resident of the city of St. Louis where its | appears. Section 1754, in its present form cause of action accrued, pick and choose at precisely (barring the subsequent amendits own arbitrary will any of the circuit ment of 1903, specifically applicable to railcourts of any of the 114 counties of the state roads) came into our statute books in 1855. as a forum having plenary jurisdiction to R. S. 1855, p. 377, § 4. Again, it is worthy hear and determine this case, the writ here- of note that said section 1751 of our present in should be quashed. Imprimis, we think law appeared under the head of Practice in it is important to determine whether section Civil Cases, while said section 1754 appeared 1751, R. S. 1909, is to be construed in pari under articles referring wholly to corporamateria with section 1754, or whether the tions. While no change in apposite substance latter section is not the sole one to be con- has ever been made in the two sections of sidered in determining the place where a the statute under discussion, their said sepcorporation, foreign or domestic, is to be arate places in our statutes under the headsued.

ings, respectively, of "Practice in Civil CasSection 1751 first came into our statutes es” and “Corporations" were retained until substantially in its present form in 1835. the revision of 1909 (cf. R. S. 1865, § 1, p. Statutes of Mo. 1835, p. 451, § 4. It then 653, and section 26, p. 330; R. S. 1879, $ 750, (and we shall seek to show it always has) and section 3481; R. S. 1889, § 2529, and specifically applied to venue in actions by section 2009; R. S. 1899, § 997, and section and against persons only. It then contained 562), when for the first time, as a mere matonly the first and fourth subdivisions of the ter of convenience in arrangement and codipresent statute, substantially, however, in fication, these two sections were taken from their present forms. Before 1835, the pro- their former places in our statutes and placed visions of our statutes governing venue were in juxtaposition under the chapter governmeager, but they fixed venue at the county ing civil procedure. in, which the defendant resided, unless the III. So, from the history of these two latter were found in plaintiff's county, in sections, it is manifest that section 1751 rewhich event the action could be brought fers solely to venue in suits between persons, therein. Section 3, p. 622, Laws of Mo. 1825. while section 1754 refers solely to the place Corporations were then, semble, sued in all of bringing suits against corporations.

We respects as were persons. Laws of Missouri may further narrow the limits of the inquiry 1825, p. 223, $81, 2; Statutes 1835, $8 by saying that said section 1754 applied of 1, 2, p. 125.

necessity only to domestic corporations. No No material changes were made in 1845 changes have ever been made in this section in the statute fixing the venue for actions be- so as to make it apply in terms to foreign tween persons (R. S. 1845, p. 805, § 5), but corporations. That it does so apply no one it is worthy of note, and we think decisive will deny, but it has been made to apply by of this point, that in the revision of 1845 bringing the foreign corporations within the (section 4, p. 238, R. S. 1845) it was provided purview of the section by the expedient of that "suits against corporations shall be enacting other statutes requiring license and

localization and the establishment of offices commenced in the proper court of the county wherein the general meetings of the members and agents, or by such corporations volunor the officers of such corporation have usual- tarily establishing agencies where since 1855 ly been holden, or by law, ought to have been service could be had on them. Before the holden.” In other words, venue was to be passage of the statute of 1855, foreign corlaid in the county of the chief office of such porations could not be sued in this state corporation. It is also worthy of note that (except by attachment, with which here we the statute fixing venue in civil actions in are not concerned); suits had to be brought

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against them in the foreign state of their cases between persons was found among

domicile. We have already seen that the those provisions dealing with practice at special service statute, now section 7042, law in civil cases, while the like statute

supra, was enacted in the same year at fixing the place for bringing suit against a which the venue statute governing the place corporation was found in the chapter de- of bringing suits against corporations was voted to corporations. Of course these stat- passed.

Of course these stat- passed. R. S. 1855, p. 885, § 1. Since the utes all dealt with suits against domestic year 1855 foreign insurance companies doing corporations, for only such could be then business in this state can be sued in all sued in this state by ordinary summons. courts of competent jurisdiction by serving Robb v. Railroad, 47 Mo. 540; Middough the agent voluntarily designated as such by a V. Railroad, 51 Mo. 520.

power of attorney and a resolution of the In 1855 there appeared for the first time company's board of directors. Since, as we in a revision subdivisions 2 and 3, now found think has been made clear by what is said in section 1751 of the present statute (R. S. above, section 1754 fixes the venue for suits 1855, p. 1220, § 1), so that our venue statute against foreign insurance companies, is such governing actions between persons then as- | action to be brought where the action ac

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crued, as provided by the first clause of said , Venue is still to be determined by section section 1754, or may such action at the elec-1754 alone; service of process alone is to be tion of the plaintiff therein, be brought, governed by said section 7042. Suit cannot either in such county, "or in any county be brought by a given plaintiff in either one where such corporations shall have or us of the 114 counties of the state or in the ually keep an office or agent for the trans- city of St. Louis; but suit must be brought action of their usual and customary busi- either in the county wherein the cause of ness"?

action accrued, or in any county wherein the [3, 4] We are constrained to hold that such foreign insurance company has and maincorporations are suable either in the county tains an agent for the transaction of its wherein the cause of action accrued or in any usual and customary business. All other county where such foreign corporation has corporations of what ever kind are so suable, an agent for the transaction of its usual and and we have no warrant to make any discustomary business. This is what the stat-tinction either against or in favor of a forute says, and we are unable to find any au- eign insurance company. It is too plain for thority to sustain any other view which argument that any other view or construcwould not offend the Constitution. For, tion of section 7042 makes a special venue while it is true that this court has repeatedly statute of it. It is also clear that all special ruled that when a foreign insurance com- venue statutes are forbidden by our Constipany has designated an agent by power of tution. Subdivision 4, § 53, art. 4, Const. attorney pursuant to statute (section 6013, By reason of the language used in said secR. S. 1879; section 7042, R. S. 1909) service tion 53 of the Constitution, we are not alof process must be had upon such designated lowed to apply the permissible classification agent, and thereafter no valid service can be doctrine of subdivision 32 of said section 53 had upon any other agent (Baile v. Insurance to a solution of the difficulty presented. This Co., 68 Mo. 617; Middought v. Railroad, 51 is so for the reason that said section 53 of Mo. 520; Stone v. Insurance Co., 78 Mo. 655; article 4 of our Constitution expressly forState ex rel. v. Grimm, 239 Mo. loc. cit. 161, bids the General Assembly to "pass any 143 S. W. 483; Gold Issue, etc., Co. v. In- local or special law * changing the surance Co., 267 Mo. loc. cit. 575, 184 S. W. venue in civil or criminal cases"; thus by 999), yet neither such ruling nor the statute the very language used excluding the privi(section 7042, supra) on which such ruling is lege of permissible classification which is based serves to repeal, even by the remotest given by subdivision 32 of said section 53, implication, the provisions of section 1754, in all matters of legislation, except the supra, the language of which we follow in things wherein special laws are, by the premaking this ruling. It is, we think, mani- ceding 31 subdivisions, expressly forbidden. fest that if section 7042, supra, be so con- Unfortunately, the character of the busistrued as to destroy that clause of section ness done by insurance companies and the 1754, supra, which permits suits to be manner in which perforce such business is brought against foreign corporations in any done accentuate and increase the apparent county wherein such company has an agent hardship of such a rule. Ordinary business for the transaction of its customary and us- companies as a rule either transact business ual business, it is unconstitutional. Such in but one county, or have but one agent to construction would make of it a special stat-transact their usual and ordinary business. ute which changes the venue in civil cases, The application, therefore, of the identical against the direct inhibition of subdivision 4 rule to the ordinary foreign business corpoof section 53 of article 4 of our Constitution. ration works no apparent hardship. It is For such a construction would have the only when the rule is applied to a company effect to change said section 7042, to the ex- which by reason of the nature of its business tent noted, into a venue statute governing must maintain agencies in many counties for alone the venue in cases brought against the transaction of its usual and customary foreign insurance companies, thereby render-business that the rule seems to work out as ing it obnoxious to the Constitution in the here outrageous hardships and well-nigh disbehalf mentioned. But for this cogent con- graceful situations. These considerations sideration, the rule that the reason having are not for us, however, but for the Legisfailed the rule itself fails could well be in- lature, if, so it be, that body is able to solve voked, thus bringing about the holding that the difficulty, and in solving it escape the ban all suits against a foreign insurance com- of the Constitution. pany must be brought where the cause of [5] It is, we think, obvious from what is action accrued.

said above that section 7042, supra, is not There have been much obiter dicta and invalid for that it transgresses the "due loose writing upon the effect of said section process of law" clause of the federal Consti7042 upon the place of bringing suits against tution. This conclusion follows inevitably foreign insurance companies which are li- | the reasoning which we are above concensed to do business in this state. We strained to apply to the condition presented. think that nothing can be plainer than that In other words, a foreign, but locally lisaid section has not in any or in the least censed, insurance company is suable only

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