§ 164c. Service upon foreign corporations. When the jurisdiction rests solely upon the existence of a Federal question in a case which is not brought for the infringement of a patent or copyright nor against a surety company, nor under the statute against combinations in restraint of commerce nor under other special statutes, a District Court of the United States has no jurisdiction over a foreign corporation 1 which is not an alien. But when the defendant is an alien corporation,2 or when jurisdiction is claimed on account of a difference of citizenship, a foreign corporation may be served with process in the State of the complainant's residence, provided it be "found" within the district.3

What constitutes such a finding is a matter hard to define with accuracy. If a State statute forbids a foreign corporation to transact business within its borders except upon condition that the corporation stipulate to allow legal process to be served upon it, and the company execute such a stipulation, not in express terms restricted to the process of a State court; it will be considered to apply to the Federal courts, and a subpoena from a Federal court may be served upon the foreign corporation in the same manner as a similar process of a State tribunal.1

Such condition and stipulation may be implied as well as expressed. If a State permits a foreign corporation to do business within her limits, and at the same time provides that, in suits against it for business there done, process shall be served upon its agents, the provision is deemed to be a condition of the permission; and corporations that subsequently do business in the State are deemed to assent to such conditions as fully as Farmer v. Nat. Life Ass'n, 150 Fed. 829.

§ 164c. 1 McCormick H. M. Co. v. Walthers, 134 U. S. 41, 33 L. ed. 833; In re Keasby & Mattison Co., 160 U. S. 221, 40 L. ed. 402; supra, § 61.

2 In re Hohorst, 150 U. S. 653, 37 L. ed. 1211; Barrow S. S. Co. v. Kane, 170 U. S. 100, 42 L. ed. 964.

8 McCormick H. M. Co. v. Walthers, 134 U. S. 41, 33 L. ed. 833; supra, § 61.

4 Ex parte Schollenberger, 96 U.

S. 369, 24 L. ed. 853; Pennsylvania
Lumbermen's Mutual Fire Ins. Co..
v. Meyer, 197 U. S. 407, 49 L. ed.
810; Gale v. So. Building & L.
Ass'n, 117 Fed. 732; Buckingham
& Hecht v. North German Fire Ins.
Co. of New York, 149 Fed. 622;
Castagnino v. Mutual Reserve Fund
Life Ass'n, C. C. A., 157 Fed. 29.
Overruling several cases to the con-
trary previously decided in the "Cir-
cuit Courts.

5 St. Clair v. Cox, 106 U. S. 350, 356, 27 L. ed. 222, 225.

though they had specially authorized their agents to receive service of the process. Such condition must not, however, encroach upon that principle of natural justice which requires notice of a suit to a party before he can be bound by it. It must be reasonable, and the service provided for should be only upon such agents as may be properly deemed representative of the foreign corporation. It has been said, "that in the absence of a voluntary appearance, three conditions must concur or co-exist in order to give the Federal courts jurisdiction in personam over a corporation created without territorial limits of the State in which the court is held, viz: (1) It must appear as a matter of fact that the corporation is carrying on its business in such foreign State or district, (2) that such business is transacted or managed by some agent or officer appointed by and representing the corporation in such State; and (3) the existence of some local law making such corporation, or foreign corporations generally, amenable to suit there, as a condition, express or implied, of doing business in the State."9 It seems that by the common law a court has jurisdiction over a foreign corporation to enforce a cause of action arising in its territorial jurisdiction.10 Service upon a natural person is regulated solely by the Federal Statutes and decisions.11

It has been said that service upon foreign corporations when the jurisdiction depends upon difference of citizenship must be made in accordance with the State statutes.12

Service upon an agent, who stood in no representative character to the company, or whose duties were limited to those of a

6 Mr. Justice Field in St. Clair v. Cox, 106 U. S. 350, 356, 27 L. ed. 222, 225; Railroad Co. v. Harris, 12 Wall. 65, 81, 20 L. ed. 354, 358; Old Wayne Life Ass'n v. McDonough, 204 U. S. 8, 21, 51 L. ed. 345, 350; Hayden v. Androscoggin Mills, I Fed. 93; Estes v. Belford, 22 Fed. 275.

7 St. Clair v. Cox, 106 U. S. 356, 27 L. ed. 222, 225.

8 Contra, Sadler v. B. & B. Rubber Co., 140 App. Div. (N. Y.) 367. 9 U. S. v. Am. B. Tel. Co., 29 Fed. 17, 35, per Jackson, J. See Max

well v. Atchinson, T. & S. F. R. Co., 34 Fed. 286, 289; Buffalo Glass Co. v. Manufacturer's Glass Co., 142 Fed. 373.

10 Newby v. Von Opper, etc., Co., L. R. 7 Q. B. 293.

11 Vitkus v. Clyde S. S. Co., 232 Fed. 288.

12 McCullough v. United Grocers Corporation, 247 Fed. 880; Boultbee v. Int. Paper Co., C. C. A., 229 Fed. 951. But see Henrietta Min. & Milling Co. v. Johnston, 173 U. S. 221, 19 Sup. Ct. 402, 43 L. ed. 675.

16

subordinate employee, 13 unless formally designated to receive service of process, 14 or to a particular transaction 15 or whose agency had ceased when the matter in dispute arose have been held to be insufficient. But where, while transacting business there, it had appointed an agent, for the purpose of the service of process, and his authority had not been revoked, the corporation was held to be subject to the jurisdiction.17 It has been held that after the United States Railroad Director had taken possession of a railroad, service upon his agent was not service upon the railroad company.18 It has been said that service upon an agent, otherwise competent, whose relations to the claim are such as to make it his interest to suppress the fact is insufficient. 19 A State statute providing that a public officer shall be the attorney in fact for every foreign corporation doing business in the State and every non-resident domestic corporation, with authority to accept service of process on its behalf, is constitutional so far as actions upon contracts made within the State are concerned,20 but not, it has been held, as regards suits upon contracts executed in another State with citizens of the State where the suit is brought, although the defendant has transacted some business in the latter State.21

13 St. Clair v. Cox, 106 U. S. 350, 359, 360, 27 L. ed. 222, 226; Mexican C. Ry. Co. v. Pinkney, 149 U. S. 194, 37 L. ed. 699; Maxwell v. Atchison, T. & S. F. R. Co., 34 Fed. 286; Carron Iron Co. v. McClaren, 5 H. L. C. 416; Toledo Rys. & Light Co. v. Hill, 244 U. S. 48; Franco-American Chem. Co. v. McKee Glass Co., 232 Fed. 198; American Oil & Supply Co. v. Western Gas Const. Co., C. C. A., 239 Fed. 505; Boultbee v. International Paper Co., 229 Fed. 951; Knapp v. Bullock Tractor Co., 242 Fed. 543. See Rakauskas v. Erie R. Co., 237 Fed. 495.

14 Boultbee v. Int. Paper Co., C. C. A., 229 Fed. 951.

15 St. Clair v. Cox, 106 U. S. 350. 16 Peoples Tobacco Co. v. Am. Tobacco Co., 246 U. S. 69; Cooper v. Brazelton. C. C. A., 135 Fed. 476;

A few cases in the lower

Crews v. Illinois Commercial Men's Ass'n, 256 Fed. 268. But see Ross v. Western Land & Irrigation Co., 223 Fed. 680.

17 Hill v. Empire State-Idaho Mining & Developing Co., 156 Fed. 797. 18 Wood v. Clyde S. S. Co., 257 Fed. 879.

19 King Tonopah Min. Co. V. Lynch, 232 Fed. 485.

20 Saint Mary's Franco-American Petroleum Co. v. West Virginia, 203 U. S. 183, 51 L. ed. 144, 7 Ann. Cas. 1018; Leyden v. Western Life Indemnity Co., 204 Fed. 687, where the statute was applied to a suit for a breach of contract with an agent. 21 Old Wayne Life Ass'n v. MeDonough, 204 U. S. 8, 51 L. ed. 345; Simon v. Southern Ry. Co., C. C. A., 195 Fed. 56. Aff'd 236 U. S. 115.

23

courts hold that no foreign corporation can be sued for a tort committed in another State or district.22 But where the defendant had filed a stipulation in pursuance of the statute, it was held that it was bound by service upon the party therein designated in suits upon causes of action in tort or contract arising 24 elsewhere. If the statute so provides the service will be good after the defendant has withdrawn from the State so far as concerns contracts previously made 25 or subsequently made for performance in the state.26 When the statute does not direct the officer served to give notice of the service to the corporation, it is unconstitutional.27 It has been held that the Superintendent of the Insurance Department of the State of New York cannot be served by mail; and that he has no power to waive a defect in the service of process upon him so as to bind a foreign insurance company. 28 It seems that service upon the officer's deputy is sufficient.29 The designation of an agent does not authorize service upon him in another district of the State than that where the suit was brought.30 Service upon such an agent cannot be made without the limits of the territorial district.31 Where there are two or more districts in the State, service upon the agent in the district other than that where the suit is brought, cannot effect his principal 32 except in the cases expressly excepted by statutes.33

22 Fry v. Denver & R. G. R. Co., 226 Fed. 893; Atch., T. & S. F. Ry. Co. v. Weeks, C. C. A., 254 Fed. 513. See Simon v. Southern Ry. Co., 356 U. S. 115.

23 Smolik v. Phila. & R. Coal & I. Co., 222 Fed. 148; Bagdon v. Phila. & R. Coal & I. Co., 217 N. Y. 432.

24 Penn. Fire Ins. Co. v. Gold Issue Min. & Milling Co., 243 U. S. 93.

25 Mitchell v. Nat. Surety Co., 206 Fed. 807; Hagler v. Security Mut. Life Ins. Co., 244 Fed. 863; Southern Paving Const. Co. v. Knoxville, C. C. A., 245 Fed. 421.

26 Bankers Surety Co. v. Town of Holly, 219 Fed. 96; King Tonapah Mining Co. v. Lynch, 232 Fed. 485.

27 Farmer v. National Life Ass'n, 50 Fed. 829.

28 Bankers Surety Co. v. Town of Holly, 219 Fed. 96.

29 Lukosewicz v. Phila. & R. Coal & I. Co., 232 Fed. 292; Tauza v. Penn. R. Co., 232 Fed. 294.

30 Rakauskas v. Erie R. Co., 237 Fed. 495.

31 Lukosewicz v. Philadelphia & Reading Coal & Iron Co., 232 Fed. 292.

32 Tauza v. Pennsylvania R. Co., 232 Fed. 294.

33 Rakaukas v. Erie R. Co., 237 Fed. 495.

§ 164d. Transaction of business within a State or district. In order thus to subject itself to the service of process the foreign corporation must actually transact business in the district. where the suit is brought. The transaction of business subsequent to the service of process does not affect the jurisdiction although it may be material evidence upon the question whether the corporation was transacting business in the State.2 The maintenance of an office or storeroom, where goods are kept for sale, or where contracts are closed, or railroad tickets sold; the continuous solicitation of orders filled by shipments from the home office when the soliciting agent had authority to receive payment in cash, checks, drafts and notes, payable in