(40 Sup.Ct.) quired the claimant to operate the cables for | on receipts from messages, computed as re20 years; to give precedence to official dis- quired by the third concession; that since patches and to charge for them at one-half the American occupation the service over the rates charged for private messages; to the Visayas cables had been extended and pay a tax of ten per cent. on receipts in ex- improved at large expense by arrangement cess of expenses not to exceed £6,000 per an- with duly authorized officers of the governnum, an additional tax of "50 centimes of a ment; and that in August, 1905, the claimant franc" per word on telegrams transmitted, had paid and the government had accepted a and a surtax of "5 centimes of a franc" per balance due on an account stated in a form word on telegrams between the four islands indicating an adoption of the terms of the named in the grant and others of the Ar- concessions. By this course of conduct, it chipelago. was averred, the United States "assumed and adopted" all of the obligations imposed on the government of Spain by the concessions, and agreed with the claimant to discharge and perform all of them and especially agreed to pay the annual subsidy of £4,500, as required by article 10 of the third concession. The government of Spain, on its part, agreed to pay the claimant in equal monthly installments, an annual subsidy of £4,500 during the term of the grant. All of the cables were promptly laid down and put in use, and those of the third grant are designated in the record as the "Visayas cables" and the grant as the "Visayas concession." This suit is to recover the amount of the subsidy provided for in the third concession, which had accrued when the petition was filed. The United States denied all liability, and the judgment of the Court of Claims, dismissing the petition, is before us for review. *358 The case was here before on appeal, and this court held (231 U. S. 326, 34 Sup. Ct. 57, 58 L. Ed. 250) that the case as then stated in the petition was not within the jurisdiction of the court of Claims, whether viewed as asserting an obligation growing directly out of the treaty with Spain or one imposed by principles of international law upon the United States as a consequence of the cession of the Islands by the treaty. The court, how ever, referring to certain general and indefinite *allegations in the petition, suggested that the implication might be drawn from them that there may have been action on the part of officials of the government of the United States since it had assumed sovereignty over the Islands which, if properly pleaded and proved, would give rise to an implied contract with the claimant outside the treaty, which would be within jurisdiction of the Court of Claims, and, to the end that the right to have such a claim adjudicated might be saved, if it really existed, the case was remanded for further proceedings in conformity with the opinion. *359 *Trial by the Court of Claims resulted in findings of fact, as follows: That the concessions were made to claimant as alleged and that all of the cables were completed and in use when the Treaty with Spain was signed, December 10, 1898; that the government used the cables extensively for official dispatches, which were given priority in transmission, but that this was in accordance with the International Telegraph Convention, as well as in compliance with the terms of the concessions; that the claimant charged the government for messages over the Visayas cables at one-half the rate charged for private dispatches, which is the rate prescribed by the third concession, but that it "has paid the full rates charged by the claimant for messages over any of the lines" and claimant had authority to make its own rates; and that it is not true that the claimant transmitted messages over the Hongkong cable free of charge. "The United States government has paid full established rates on the Hongkong-Manila cable." It is further found that since December, 1901, the claimant has made claim to the subsidy in annual statements to the authorities of the Philippine government, in which the terms of the concession granting it were referred to and in which the United States was charged with the amount of it then accrued. With respect to these, except as hereinafter noted, the court finds that whether any reply was made to them "does not appear from the record." ant to the statement presented on June 11, Much significance is attached by the claim1905. The finding with respect to this is that on that date the claimant's representative forwarded to "the Secretary of Finance and Justice," an officer of the Philippine government at Manila, a communication, with an attached statement purporting to show the amount "due to the United States government in the Doubtless inspired by the suggestion from the court, an amended petition was filed, in which claimant alleged with much detail that the government of the United States had used the cables extensively for official messages, which had been given precedence and had been transmitted, as required by the terms of the two concessions, over the Hongkong cable free until 1908, and thereafter at one-fourth of the regular rate, and over the Visayas cables at one-half the rate charged for private Philippines on account of the transmission *of dispatches; that the claimant had paid and all United States government traffic over the the government accepted the 10 per cent. tax Manila-Hongkong cable, as per the concession *360 granted to us for laying the same, up to and considerable expense. But the finding with including December 31, 1904." respect to this is: In this statement the government is credited (as if the amount had not been paid) with what it had paid for service over the Hongkong-Manila cable, laid under the first and second concessions, from August 21, 1898, to December 31, 1904, and it is charged with "Visayas subsidy," under the third concession, £4,500 per annum to December, 1904. Thus a balance was arrived at of £4,712.10.6 in favor of the United States, "as to the disposal of which I shall be glad to receive your instructions," wrote the representative of the claimant. In reply to this the auditor of the government of the Philippine Islands, to whom it had been referred, wrote to claimant's representative at Manila, acknowledging receipt of his letter in which it was stated, "There is due the insular government under your concession the sum of £4,712.10.6," and the auditor added, "It is respectfully requested that said amount be deposited with the insular treasury as miscellaneous revenue." Payment was made and receipt given by the treasurer of the government of the Philippine Islands for the amount as "due government as per statement of account rendered by Eastern Extension, etc., Tel. Co. to Sec. Finance and Justice June 5, 1911." Each year after 1905 the claimant sent a statement to the "Secretary of Finance and Justice" at Manila in the form following: of your company to transmit messages *free between Hongkong and Manila, providing that this acceptance leaves in abeyance Spanish concession which is now under consideration.' On the following day claimant's reply was transmitted to the War Department, stating that the foregoing telegram had been received and the reservation therein noted, and that 'the company have pleasure in affording all possible facilities to the United States government in connection with the transmission of their telegrams.' On the 28th of March, 1899, a written communication was transmitted by the War Department to the duly authorized representa tive of the claimant company, to the effect that 'upon careful reconsideration of the sub "The United States Government at Manila in Account with the Eastern Extension Aus-ject it is deemed inadvisable for the department tralasia & China Tel. Co., Limited. * Free Transmission of American Government Telegrams over Hongkong-Manila Section." It is expressly found that: "Except the payment above referred to in 1905, the claimant has never paid anything into the treasury of the Philippine government. It does not appear that any part of said sum was paid into the treasury of the United States. Nor has the claimant paid any sum to the United States government." The only payment of the 10 per cent. tax under the third concession was that made in 1905, £184.17.2, and the statement showing this balance in favor of the United States concluded: "I therefore have the honor to request that the necessary permission be given to the treasurer to receive these amounts, now standing to the credit of the United States government in the Philippines." Of its own motion the claimant, in 1899, made extensions of the Visayas cables at a to avail itself of your company's offer. I beg to state, therefore, that the department will pay the established rates on official cable messages, and all accounts of this character presented to the United States will be paid.' This communication concluded with a renewal of thanks for the voluntary reduction in rates which your company has so courteously tendered.' The United States government has paid full established rates on Hongkong-Manila cable, and has paid the established rates on the Visayas cables on its messages." Upon these findings of fact and upon principles and analogies derived from the law of private contract, the court must proceed to judgment. For it was determined by this court on the former appeal that any right in the defendant derived directly from the Treaty with Spain, or any obligation imposed upon the United States by principles of international law as a consequence of the cession of the Islands, would not be within the jurisdiction of the Court of Claims, and counsel for claimant, expressly disclaiming the asser tion of any right under the Treaty of Paris, urge that the case be treated "exactly as it would be if it arose between two private citi zens." *363 *So regarding the case: It is obvious that no express contract by the United States to adopt and be bound by the third or any of (40 Sup.Ct.) able to the United States, which was paid to and accepted by the treasurer of the Philippine government, and from which so much is claimed, is not impressive as creating the asserted liability. the concessions can be made out from the | December 31, 1904, showing a balance favorfindings of fact, and it is equally clear that such an implied contract, using the words in any strict sense, cannot be derived from the findings, for it is plain that there is nothing in them tending to show that any official with power, express or implied, to commit that government to such a contract ever intended to so commit it. Here again the claimant, without suggestion of demand from the government of the United States or even from the Philippine The contention of the claimant must be sus-government, prepared a statement, and, in tained, if at all, as a quasi contract, as an order to give it the form of an account, was obligation imposed by law independent of in- obliged to treat as unpaid charges for tolls tention on the part of any officials to bind over the Hongkong-Manila cable all of which the government, one which in equity and good had been paid by the United States governconscience the government should dischargement and accepted by the claimant. because of the conduct of its representatives A separate government, sustained by its in dealing with the subject-matter. [1] It is argued that the United States should be held to have assumed the burden of the concession because it derived benefits and advantages from the use of the cables. These cables were in operation when the United States government assumed jurisdiction over the Islands. It extended a much more efficient governmental protection over the lines than they had before, but left the claimant in full ownership and control over them with the power to determine rates for service. The government, to be sure, availed itself of the advantages of communication which the cables afforded, but for such service it paid the rates which the claimant demanded and which it must be assumed were adequate. From such circumstances as these, very clearly, the law will not raise an obligation on the part of the government to assume the burden of the subsidy on the principle of undue enrichment or of advantage obtained. It used the cables as other customers used them, and from such a use, paid *364 *for at the full rate demanded, no obligation can be derived by implication. It is further contended that the terms and conditions of the concession should be imposed on the government because the officials of the Philippine government accepted taxes computed as provided for by the third grant. The finding of the Court of Claims is not that the Philippine government demanded or exacted the small amount of taxes that was paid, but that the claimant itself computed the amount in the manner which it thought was provided for in the concession and tendered payment, which, after repeated urging, was accepted by local officers of the Philippine government so subordinate in character that it is impossible to consider them as empowered to commit the government of the United States to the large responsibilities now claimed to spring from their conduct. The finding with respect to extension of the cables in 1899 excludes all suggestion of the assumption of any liability by the United States on account of the expenditure involved. The form of the statement of account of own revenues, has been maintained for the Philippine Islands ever since they were ceded *365 to the United States. At first military, *it became a civil government in 1902, organized as provided for by an act of Congress (32 Stat. p. 691, c. 1369), with a Governor General, and executive, legislative and judicial departments all subject to the supervision of the Secretary of War of the United States. It is surprising that the claimant, when it desired to have these important concessions, with their large obligations, adopted by the government of the United States, did not make application for that purpose directly to that government or to its Secretary of War, or at least to the Governor General or legislative department of the Philippine government, instead of relying for its adoption by implication, as it has done, chiefly upon the form in which the accounts were presented to the secretary of finance and justice of the Philippine government. The action of a department head of the Philippine government (inconsistent with the position taken by the Secretary of War in 1899, with respect to the subject-matter) in accepting a voluntary payment of $23,000 cannot be made the sufficient basis for implying an obligation on the part of the government of the United States to pay a bonus of a total aggregate of almost $440,000. If doubt could be entertained as to the correctness of this conclusion, it would be disposed of by the fact that when the claimant, in March, 1899, tendered to the Secretary of War, so far as appears the only official of the United States with large powers, who considered the subject, the privilege of free transmission of messages over its HongkongManila cable, as was provided for in the first concession, the offer was politely, but firmly, declined with the statement that "the Department will pay the established rates on official cable messages and all accounts of this character presented to the United States will be paid"—a promise which the findings show that he and his successors in office have faithfully kept. [2] In the jurisdiction given to the Court ⚫366 fendant, and we shall refer to them respectively as plaintiff and defendant. The action was brought in the Supreme Court of the state of New York, and removed upon motion of the defendant to the District Court of the United States for the Southern District of New York. In the latter court defendant made a motion for an of Claims Con*gress has consented that contracts, express or implied, may be judicially enforced against the government of the United States. But such a liability can be created only by some officer of the government lawfully invested with power to make such contracts or to perform acts from which they may be lawfully implied. Langford v. Unit-order vacating and setting aside the service ed States, 101 U. S. 341, 345, 25 L. Ed. 1010; United States v. Buffalo, Pitts Co., 234 U. S. 228, 34 Sup. Ct. 840, 58 L. Ed. 1290; Tempel v. United States, 248 U. S. 121, 39 Sup. Ct. 56, 63 L. Ed. 162; Ball Engineering Co. v. J. G. White, 250 U. S. 55, 39 Sup. Ct. 393, 63 L. Ed. 835. The foregoing discussion makes it palpably plain that no contract, express or implied, to pay the disputed subsidy, was made by any officer of the United States, and the judgment of the Court of Claims is therefore Affirmed. (251 U. S. 873) CHIPMAN, Limited, v. THOMAS B. JEF- (Submitted Dec. 8, 1919. Decided Jan. 19, CORPORATIONS 668(14) - JURISDICTION OF INDIVIDUAL DESIGNATED THEREFOR. Though a foreign corporation has engaged in business in New York, and as a condition of doing so has under the laws of that state designated an individual on whom process against it may be served in the state, a court in that state does not, in an action on a cause arising out of the state, obtain jurisdiction of its person by service of summons on such individual, after it has removed from the state; his unrevoked designation not giving it constructive presence in the state. In Error to the District Court of the United States for the Southern District of New York. Action by Chipman, Limited, against the Thomas B. Jeffrey Company. Complaint dismissed (260 Fed. S56), and plaintiff brings error. Affirmed. of summons, and dismissing the complaint, for lack of jurisdiction of the person of the defendant. The motion was granted, and the case is here on the jurisdictional question only. A brief summary of the grounds of action and the proceedings upon the motion to dismiss is all that is necessary. Plaintiff is a New York corporation; defendant, one under the laws of Wisconsin, and a manufac turer and seller of motor cars, known as the "Jeffrey" and "Rambler," and parts thereof, and motor trucks and parts thereof. contracts, in writing, made in Wisconsin by the plaintiff and defendant, it was agreed that the former should have the sole right *377 By to sell the motor cars and parts thereof (first cause of action) and the motor trucks and parts thereof (second cause of action) of defendant in Europe and certain other foreign places, and to receive certain designated percentages. The contracts as to motor cars and their parts, and the trucks and their parts, provided that they (cars, trucks, and parts) should be sold and delivered to plaintiff (called in the contracts the "distributor") at Kenosha, Wis., for sale at the designated places by plaintiff; defendant reserving the right to fill the orders of plaintiff (distributor) for the cars, trucks, and parts from any of its defendant's depots in New York City. Cars and trucks purchased under the contracts to be paid for at Kenosha. Both contracts continued in effect to July 31, 1915. There are allegations of performance of the contracts by plaintiff, their nonperformance by defendant, whereby plaintiff on one cause of action was entitled, it is alleged, to $280,000, and upon the other $600,000. Judgment is prayed for their sum, to wit, $880,000. The District Court has certified three questions, but, as the first includes the other two, we give it only as it sufficiently pre Mr. Daniel P. Hays, of New York City, sents the question at issue: for plaintiff in error. Messrs. Philip B. Adams, of New York City, and Thomas B. Kearney, for defendant in error. *376 "Whether in the service of summons, as shown by the record herein, upon Philip B. Adams, this court acquired jurisdiction of the person of the defendant." Plaintiff contends for an affirmative an*Mr. Justice MCKENNA delivered the opin- swer, and adduces the New York statute, ion of the Court. which requires of corporations not organized under the laws of New York, as a condition of doing business in the state, to file in Plaintiff in error was plaintiff in the courts below, defendant in error was de For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (40 Sup.Ct.) the office of the secretary of state a stipu- in the state, dwelt upon the fact and dislation designating "a place within the state tinguished thereby, Old Wayne Mut. Life which is to be its principal place of busi- Ass'n v. McDonough, 204 U. S. 8, 27 Sup. Ct. ness, and designating a person upon whom | 236, 51 L. Ed. 345, and Simon v. Southern process against the corporation may be Ry. Co., 236 U. S. 115, 35 Sup. Ct. 255, 59 served within the state," and the person L. Ed. 492, in both of which the causes of designated must consent, and the designa- action were based on transactions done outtion "shall continue in force until revoked side of the states in which the suits were by an instrument in writing" designating brought. some other person. *378 *Defendant complied with the requirements of the statute July 6, 1914, designating 21 Park Row, New York, as its place of business, and Philip B. Adams as its agent upon whom process might be served. The designation and appointment have not been revoked. It is not denied, however, that defendant had removed from the state before service on Adams, and, as we have stated, the con Tauza v. Susquehanna Coal Co., 220 N. Y. 259, 115 N. E. 915, is nearer in principle of decision than the case just commented within the state by the coal company was upon. The question of the doing of business in the case and was discussed. But the question was unconnected with a statutory designation of a place of business or of an agent to receive service of process. However, there was an implication of agency in the coal company's sales agent under other "Unless a foreign corporation is engaged in business within the state, it is not brought within the state by the presence of its agents" citing and deferring to St. Louis S. W. Ry. Co. of Texas v. Alexander, 227 U. S. 218, 33 Sup. Ct. 245, 57 L. Ed. 486, Ann. Cas. 1915B, tracts sued on made the place of their per-provisions of the Code of Civil Procedure formance Kenosha, Wis. But, in empha- of the state and it was considered that the sis of the requirement of the statute, it is principle of Bagdon v. Phila. & Read. C. & urged that, at all of the times of the duration I. Co., supra, applied. But the court went of the contracts sued on and their breaches, further and left no doubt of the ground of defendant was doing business in the state, its decision. It said: and at any time had the right to transact business in the state. It is further urged that the contracts contemplated they might be performed within the state. There is no allegation of such performance, nor that the present causes of action arose out of acts or transactions within the state. The other | 77. circumstances of emphasis may be disregarded, as the validity of the service depends upon the statute, assuming it to be controlling; that is, whether under its requirements the unrevoked designation of Adams as an agent of defendant gave the latter constructive presence in the state. And making that assumption of the control of the statute, which we do in deference to counsel's contention, for light we must turn to New York decisions, and there is scarcely ambiguity in them, though the facts in none of them included an actual absence from the state of the corporation with which they, the cases, were concerned. And further said: "The essential thing is that the corporation shall have come into the state." was If prior cases have a different bent, they must be considered as overruled, as recognized in Dollar Co. v. Canadian C. & F. Co., 220 N. Y. 270, 277, 115 N. E. 711. In resting the case on New York decisions, we do not wish to be understood that the validity of such service as here involved would not be of federal cognizance, whatever the decision of a state court, and refer Bagdon v. Philadelphia & Reading Coal to Pennoyer v. Neff, 95 U. S. 714, 24 L. Ed. & Iron Co., 217 N. Y. 432, 111 N. E. 1075, L. 565; St. Louis Southwestern Ry. Co. v. AlR. A. 1916F, 407, Ann. Cas. 1918A, 389, pass-exander, supra; Philadelphia & Reading Ry. ed upon the effect of a cause of action aris- Co. v. McKibben, 243 U. S. 264, 37 Sup. Ct. ing out of the state, the corporation, how- 280, 61 L. Ed. 710; Meisukas v. Greenough ever, doing business within the state, and having complied with the statute in regard to its place of business and the designation of an agent upon whom process could be served. But the court throughout the opin*379 ion, with conscious solicitude of the necessity of making the ground of its decision the fact that the corporation was doing business 380 Red *Ash Coal Co., 244 U. S. 54, 37 Sup. Ct. It follows that the District Court did not have jurisdiction of defendant and its order and judgment dismissing the complaint is Affirmed. |