collaterally inquired of in a mandamus pro- | panies the clause of section 1754, authorizing ceeding brought under the above statute to compel the registration of bonds. State ex rel. v. Dillon, 87 Mo. 487; State ex rel. V. Francis, 88 Mo. 557; State ex rel. v. Hough, 193 Mo. loc. cit. 643, 91 S. W. 905; Kehr v. Columbia, 136 Mo. App. 322, 116 S. W. 428; State ex rel. v. Elkins, 130 Mo. 90, 30 S. W. 333, 31 S. W. 1037; State v. Gamma, 149 Mo. App. 694, 129 S. W. 734.

cerêt 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 court, read thus:

"That the bringing and maintenance of this suit in this honorable court is an abuse of the jurisdiction of this court, designed by plaintiff to employ a judicial agency in the state of Missouri to compel defendant to submit to disadvantages and inconveniences in the trial of its just defenses to plaintiff's alleged cause of action. That by section 1 of the Fourteenth Amendment to the Constitution of the United States it is provided: 'No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, nor shall any state deprive any person of life, liberty or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.' That section 30, art. 2, of the Constitution of Missouri, provides: That no person shall be deprived of life, liberty or property without due process of law.' That section 10, art. 2, of the Constitution of Missouri, provides: 'Section 10. Courts of Justice Must be Open. The courts of justice must be open to every person, and certain remedy afforded for every injury to person, property or character, and that right and justice should be administered without sale, denial or delay.' That section 53, art. 4, of the Constitution of Missouri, provides that: "The General Assembly shall not pass any local or special law.*** (4) Changing the venue in civil or criminal cases.' That the bringing and maintenance of this suit in this honorable court by the plaintiff is in pursuance of the exercise by said plaintiff of an asserted right to institute its alleged cause of action in any county in this state without restriction and according to the choice and judgment of plaintiff as to which county in said state would best suit said plaintiff's purposes and interests, and for the purpose of compelling defendant to make its defenses away from the scene of the facts and the evidence and in a community where the jurors are drawn generally and usually from the class engaged in agricultural pursuits and unfamiliar with the usual and ordinary conditions surrounding the issue and performance of contracts or policies of fire insurance in said city of St. Louis. That therefore there has been no proper or lawful service of summons in this cause upon this defendant, and that said attempted service is null and void for the reasons herein set forth. That under and by virtue of the laws of this state (Revised Statutes of Missouri 1909, § 7042) defendant delivered, prior to the institution of this suit, to the superintendent of insurance of the state of Missouri, a power of attorney authorizing said officer to receive the service of summons in suits instituted against it in the courts of this state in compliance with the laws of Missouri, as averred in said petition. Defendant further states that said issue and delivery of summons herein to said officer was unauthorized by said statute and said power of attorney for the reason that said suit was not instituted in said city of St. Louis, state of Missouri, wherein plaintiff's alleged cause of action accrued, and wherein the same should be prosecuted."

This motion of relator to dismiss for lack of jurisdiction and to quash service for the same reason was overruled, and the circuit court of Audrain county was proceeding, as relator avers, with the hearing of said cause; whereupon relator applied to this court and we issued our preliminary rule in prohibition. To this preliminary rule respondent duly made return, which return admits all material facts to be as pleaded in relator's peti

be determined upon the law as applied to the facts stated in relator's petition. The unconstitutionality of section 7042, R. S. 1909, is also urged by relator, in addition to matters set out in the excerpt which we quote from its motion and which are bottomed on averred lack of jurisdiction. The facts making clear this constitutional attack will be set forth fully in our discussion of the case, as will also such further facts as may be necessary to make clear what we shall say.

Leahy, Saunders & Barth, of St. Louis, for relator. relator. Fauntleroy, Cullen & Hay, of St. Louis, for respondent.

FARIS, J. (after stating the facts as above). Counsel for relator insist that the precise question involved in this action is one of first impression in this state. There have been, they concede, suits brought by nonresidents against foreign insurance companies (cf. Gold Issue, etc., Co. v. Pennsylvania Ins. Co., 267. Mo. 524, 184 S. W. 999), wherein the contention was made that no court of this state had jurisdiction; cases wherein a nonresident sued, in a personally selected or hand-picked forum, a licensed and localized foreign business corporation (State ex rel. v. Jones, 270 Mo. 230, 192 S. W. 980 [not yet officially reported]); likewise a case wherein an action was brought before a justice of the peace of one county by a resident of another county against a licensed foreign insurance Company (Meyer v. Insurance Co., 184 Mo. 481, 83 S. W. 479); but no case such as this, wherein it is admitted that jurisdiction lies at the domicile of plaintiff, where the cause of action accrued, but denied that it lies in each of the 114 counties of this state at plaintiff's arbitrary selection.

Relator's contentions are two: (a) The act of 1885 (Laws 1885, pp. 183, 184), now section 7042, R. S. 1909, is unconstitutional and void because the title thereof recites that it is proposed to amend the then existing law, to wit, section 6013, R. S. 1879, whereas what was actually done by said act in the body thereof was to repeal the whole of said section 6013 and enact a new section (now section 7042, supra) in lieu thereof; and (b) that the circuit court of Audrain county got no jurisdiction to hear and determine this case because the plaintiff in the action to which the instant suit is ancillary is a resident of the city of St. Louis, the cause of action accrued in said city, and defendant is a foreign but licensed insurance company, which has duly executed and filed a power of attorney authorizing the state superintendent of insurance to receive and accept service of process in all actions brought against it. These in their order.

[1] I. We may pass over the contention made that section 7042 is unconstitutional on account of alleged defects existing in the

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- state 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 section 7042, which specifically designates the state superintendent of insurance as the person who shall be named as such attorney in fact, such superintendent could not have been named as such attorney in fact under the provisions of said section 6013. Since relator saw fit voluntarily to designate as its attorney in fact the very person who is pointed out by the act of 1885 as being the only person to be so designated, and since under section 6013, R. S. 1879, which is in force if, section 7042, R. S. 1909, is void, the state superintendent could have been so designated, it can make no very material difference to relator whether such designation of its attorney in fact was made pursuant to the act of 1885, or pursuant to the provisions of said section 6013. Manifestly in such situation the contention of relator as to the unconstitutionality of the act of 1885 is untenable. For, conceding for the sake of the argument that its contentions in this behalf are well taken from an academic point of view, yet its designation of the state superintendent of insurance as its attorney in fact having been fully authorized by the law existing upon the subject when the act of 1885 was passed, relator is in no wise hurt or affected by the latter act, and so it cannot be heard to urge its unconstitutionality. City of Lexington ex rel. v. Bank, 165 Mo. 671, 65 S. W. 943; 36 Cyc. 1056.

that, when the provision requiring foreign insurance companies to designate an agent on whom service could be had first came into our statutes, it provided that the resolution of the board of directors should authorize service upon such designated agent in all suits against the company "in any court in this state having competent jurisdiction." R. S. 1855, p. 885, § 1. Besides, as we shall hereafter demonstrate, if it be construed as a statute prescribing the venue in actions against foreign insurance companies, it would contravene the inhibition contained in subdivision 4 of section 53 of article 4 of the Constitution.

The point here vexing us is, in its final analysis, a question wholly of venue; otherwise we could close the discussion and refuse to issue our absolute writ in prohibition out of hand. For if the circuit court has jurisdiction to hear and determine the case out of which the instant prohibition case grew, if the service is good, then the proceeding to hear it upon a bad service is but a mere error capable of correction upon appeal, and ordinarily prohibition will not lie. But if upon no sort of service the Audrain circuit court could acquire jurisdiction to hear and determine the case, prohibition will lie. So whether such absolute lack of jurisdiction shall arise from the fact that service of process issuing out of the circuit 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.

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 Cas

the revision of 1909 (cf. R. S. 1865, § 1, p. 653, and section 26, p. 330; R. S. 1879, § 750, and section 3481; R. S. 1889, § 2529, and section 2009; R. S. 1899, § 997, and section 562), when for the first time, as a mere matter of convenience in arrangement and codification, these two sections were taken from their former places in our statutes and placed in juxtaposition under the chapter governing civil procedure.

Section 1751 first came into our statutes es" and "Corporations" were retained until substantially in its present form in 1835. Statutes of Mo. 1835, p. 451, § 4. It then (and we shall seek to show it always has) specifically applied to venue in actions by and against persons only. It then contained only the first and fourth subdivisions of the present statute, substantially, however, in their present forms. Before 1835, the provisions of our statutes governing venue were meager, but they fixed venue at the county in, which the defendant resided, unless the latter were found in plaintiff's county, in which event the action could be brought therein. Section 3, p. 622, Laws of Mo. 1825. Corporations were then, semble, sued in all respects as were persons. Laws of Missouri 1825, p. 223, §§ 1, 2; Statutes 1835, §§ 1, 2, p. 125.

No material changes were made in 1845 in the statute fixing the venue for actions between persons (R. S. 1845, p. 805, § 5), but it is worthy of note, and we think decisive of this point, that in the revision of 1845 (section 4, p. 238, R. S. 1845) it was provided that "suits against corporations shall be commenced in the proper court of the county wherein the general meetings of the members or the officers of such corporation have usually been holden, or by law, ought to have been holden." In other words, venue was to be laid in the county of the chief office of such laid in the county of the chief office of such corporation. It is also worthy of note that the statute fixing venue in civil actions in cases between persons was found among those provisions dealing with practice at law in civil cases, while the like statute fixing the place for bringing suit against a corporation was found in the chapter devoted to corporations. Of course these statutes all dealt with suits against domestic corporations, for only such could be then sued in this state by ordinary summons. Robb v. Railroad, 47 Mo. 540; Middough v. Railroad, 51 Mo. 520.

In 1855 there appeared for the first time in a revision subdivisions 2 and 3, now found in section 1751 of the present statute (R. S. 1855, p. 1220, § 1), so that our venue statute governing actions between persons then as

III. So, from the history of these two sections, it is manifest that section 1751 refers solely to venue in suits between persons, while section 1754 refers solely to the place of bringing suits against corporations. We may further narrow the limits of the inquiry by saying that said section 1754 applied of necessity only to domestic corporations. No changes have ever been made in this section so as to make it apply in terms to foreign corporations. That it does so apply no one will deny, but it has been made to apply by bringing the foreign corporations within the purview of the section by the expedient of enacting other statutes requiring license and localization and the establishment of offices and agents, or by such corporations voluntarily establishing agencies where since 1855

service could be had on them. Before the

passage of the statute of 1855, foreign corporations could not be sued in this state (except by attachment, with which here we are not concerned); suits had to be brought against them in the foreign state of their domicile. We have already seen that the special service statute, now section 7042, supra, was enacted in the same year at which the venue statute governing the place of bringing suits against corporations was passed. R. S. 1855, p. 885, § 1. Since the year 1855 foreign insurance companies doing business in this state can be sued in all courts of competent jurisdiction by serving the agent voluntarily designated as such by a power of attorney and a resolution of the company's board of directors. Since, as we think has been made clear by what is said above, section 1754 fixes the venue for suits against foreign insurance companies, is such action to be brought where the action ac

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 election of the plaintiff therein, be brought, either in such county, "or in any county where such corporations shall have or usually keep an office or agent for the transaction of their usual and customary business"?

[5] It is, we think, obvious from what is 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 think that nothing can be plainer than that said section has not in any or in the least