⚫366 of Claims Con*gress has consented that con- tively as plaintiff and defendant. tracts, express or implied, may be judicially The action was brought in the Supreme enforced against the government of the Unit-Court of the state of New York, and reed States. But such a liability can be created moved upon motion of the defendant to the only by some officer of the government law- District Court of the United States for the fully invested with power to make such con- Southern District of New York. In the lattracts or to perform acts from which they ter court defendant made a motion for an 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; of summons, and dismissing the complaint, United States v. Buffalo, Pitts Co., 234 U. S. for lack of jurisdiction of the person of the 228, 34 Sup. Ct. 840, 58 L. Ed. 1290; Tempel | defendant. The motion was granted, and v. United States, 248 U. S. 121, 39 Sup. Ct. 56, the case is here on the jurisdictional ques63 L. Ed. 162; Ball Engineering Co. v. J. G. tion only. 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. £73) CHIPMAN, Limited, v. THOMAS B. JEF- (Submitted Dec. 8, 1919. Decided Jan. 19, CORPORATIONS 668(14) — JURISDICTION OF INDIVIDUAL DESIGNATED THEREFOR. fendant, and we shall refer to them respec 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 (200 Fed. S56), and plaintiff brings error. Affirmed. 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 manufacturer and seller of motor cars, known as the "Jeffrey" and "Rambler," and parts thereof, and motor trucks and parts thereof. By contracts, in writing, made in Wisconsin by the plaintiff and defendant, it was agreed that the former should have the sole right *377 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. "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." *376 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 For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes Plaintiff in error was plaintiff in the courts below, defendant in error was de (40 Sup.Ct.) the office of the secretary of state a stipulation designating "a place within the state which is to be its principal place of business, and designating a person upon whom process against the corporation may be served within the state," and the person designated must consent, and the designation "shall continue in force until revoked by an instrument in writing" designating some other person. *378 *Defendant complied with the requirements of the statute July C, 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 in the state, dwelt upon the fact and distinguished thereby, Old Wayne Mut. Life Ass'n v. McDonough, 204 U. S. 8, 27 Sup. Ct. 236, 51 L. Ed. 345, and Simon v. Southern Ry. Co., 236 U. S. 115, 35 Sup. Ct. 255, 59 L. Ed. 492, in both of which the causes of action were based on transactions done outside of the states in which the suits were brought. 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, 77. 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 urged that, at all of the times of the duration principle of Bagdon v. Phila. & Read. C. & of the contracts sued on and their breaches, further and left no doubt of the ground of I. Co., supra, applied. But the court went 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 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. (251 U. S. 366) and the Calistoga Electric Company, also a California corporation, has been for 7 years a distributing agency of the Electric Company and the latter is not as to the Calistoga Com No. 401. (Argued Dec. 12, 1919. Decided Jan. 19, 1920.) pany a public utility. By virtue of certain circumstances the Electric Company entered into a contract with one E. L. Armstrong by which it agreed not to extend its lines into Calistoga territory, and Armstrong agreed to buy from it all of the electricity to be sold by him for 18 years. At that time the Electric *368 Company under the laws of California had a right to extend its lines and become a competitor of other companies or individuals. 1. APPEAL AND ERROR 927(2)-THAT PETI TION TO STATE SUPREME COURT AUTHORIZED DECISION ON THE MERITS PRESUMED TO SUS TAIN DISMISSAL IN FEDERAL COURT BECAUSE On appeal from decree of federal District Court dismissing bill on the ground that the controversy was res judicata by reason of denial of petition to state Supreme Court under Public Utilities Act Cal. § 67, for writ of review to the commission, it may be presumed that the petition, not in the record, circumstantially exhibited and submitted to the court the questions it was authorized to entertain, including a determination whether the commission's order violated any right under the federal Constitu tion. September 14, 1911, the Calistoga Company became the successor in interest of Armstrong and to his rights and obligations under the contract with the Electric Company, and the Calistoga Company acknowledged the fact of such succession and continued to buy its electricity from the Electric Company at the rates set forth in the contract, until 2. JUDGMENT 560-DENIAL OF PETITION Commission to set aside the contract and November 18, 1913, when it petitioned the FOR WRIT OF REVIEW WITHOUT OPINION IS compel the Electric Company to accept other As the state Supreme Court, on petition under Public Utilities Act Cal. § 67, for writ of review to the commission, can, without having the record certified, decide the questions involved, they being shown on the face of the petition, its mere denial in such a case of the petition, without opinion, is an adjudication of such questions, thereafter assignable as res judicata. The Electric Company answered the petition, set up the contract and alleged that any change in its rates would be a violation of section 10, article 1, of the Constitution of the United States and the Fourteenth Amendment thereto. January 24, 1914, the Commission instituted an investigation on its own motion which with the petition of the Calistoga Company was consolidated. The petitions were heard together upon evidence and submitted. The Commission subsequently made an order fixing rates much less than those of the contract. +367 *Messrs. Milton T. U'Ren, of San Francisco, Cal., and D. L. Beard, of Napa, Cal., for appellant. June 20, 1914, the Electric Company filed a petition for rehearing, setting up its rights under the Constitution of the United States. A rehearing was denied. May 1, 1914, the Electric Company and the Mr. Douglas Brookman, of San Francisco, Calistoga Company entered into an agreement Cal., for appellees. fixing rates subject to the approval of the Commission which the Calistoga Company agreed to secure. It did secure an informal approval of them and paid them until June 27, 1916. Appeal from the District Court of the United States for the Northern District of California. Suit by the Napa Valley Electric Company against the Board of Railroad Commissioners of California and others. Bill dismissed (257 Fed. 197), and plaintiff appeals. Affirmed. Mr. Justice MCKENNA delivered the opinion of the Court. Appeal from decree of the District Court dismissing bill of appellant, herein called the Electric Company, upon motion of appellees, herein called the Commission. The rates fixed by the Commission never became effective and therefore the Electric Company did not petition for a review of them by the Supreme Court of the state nor commence proceedings in any court of the United States to enjoin the order establishing them or to have it set aside as null and void. The ground of the motion and the decree sustaining it was that it appeared from the averments of the bill that the controversy it stated was res judicata. The bill is long, but the grounds of it can be stated with fair brevity. The Electric Company is a California corporation and has been engaged for more than 10 years in supplying electricity (called in the bill electric energy) for domestic use in the town of St. Helena and vicinity, to have established the rates fixed in the con For other case see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 369 *June 27, 1916, the Calistoga Company again petitioned the Commission to establish other rates than those fixed in the agreement of that company with the Electric Company. The latter company filed a counter petition (40 Sup.Ct.) tract of May 1, 1914 (reduced to writing nor set aside the orders of the Commission September 15, 1914), and the petition and until the record was certified to it and the that of the Calistoga Company came on to parties were before it and after formal hearbe heard and after evidence adduced the ing in the matter. Commission, November 15, 1916, reduced the rates fixed in the written contract of September 15, 1914, and made the reduced rates effective December 20, 1916. A rehearing was denied May 24, 1917, and on June 20, 1917, the Electric Company duly filed a petition in the Supreme Court of the state of California praying that a writ of review issue commanding the Commission on a day named to certify to the court a full and complete record of the proceedings before it, the Commission, and that upon a return of the writ the orders and decisions of the Commission be reversed, vacated and annulled upon the ground that they violated the company's rights under the Constitution of the United States, particularly under section 10, article 1, and under section 1 of article 14 of the Amendments thereto. The Supreme Court of California denied the "petition for writ of review and refused to issue a writ of review, as prayed for in said petition." On or about January 27, 1918, the California Light & Telephone Company became a party to the contracts between the Electric Company and the Calistoga Company by reason of conveyances from the latter company. In the present bill it is alleged that the orders and decisions of the Commission were illegal, were in excess of its jurisdiction and that the Electric Company has no adequate remedy at law and prays a decree declaring the orders and decisions null and void, that they be enjoined of enforcement or made the basis of suits against the company to enforce them. *370 *The Commission and other defendants moved to dismiss on the ground that it appeared from the allegations of the bill that "the subject-matter thereof was res judicata" and that there was no ground stated entitling the company to the relief prayed. The motion was granted and to the decree adjudging a dismissal of the bill this writ of error is directed. The District Court (Judge Van Fleet) based its ruling upon the allegations of the bill that the Electric Company filed in the Supreme Court a petition for a review of the decision and order of the Commission and for their annulment, and that the Supreme Court denied the petition. The Electric Company to the ruling of the court opposes the contention that the Supreme Court denied the company's "petition for a preliminary writ and refused to even cause the record in the case, certified by the Commission to be brought up," and therefore "simply refused to entertain jurisdiction of the controversy." And it is the further contention that the court could neither affirm The contention is based on section 67 of the Public Utilities Act of the state. St. 1911 (Ex. Sess.) p. 18. The section is too long to quote. It is part of the procedure provided by the state for the execution of its policy in regard to the public utilities of the state, and affords a review of the action of the Commission regulating them. It is quite circumstantial and explicit. It provides for a review of the action of the Commission by writ of certiorari or review from the Supreme Court of the state which "shall direct the commission to certify its record in the case to the court," the cause to "be heard on the record of the commission as certified by it." No other evidence is to be received and the review is confined to an inquiry "whether the commission has regularly pursued its author *371 ity" or whether its order or decision "violates any right of the petitioner under the Constitution of the United States or of the state of California." The findings and conclusions of the Commission on questions of fact are to be final. The Commission and the parties have the right of appearance and upon the ther affirming or setting aside the order or dehearing the court "shall enter judgment ei cision of the commission." The Civil Code of the state is made applicable so far as it is not inconsistent with the prescribed proceedings and no court of the state except the Supreme Court to the extent specified shall have jurisdiction over any order or decision of the Commission except "that the writ of mandamus shall lie from the Supreme Court to the Commission in all proper cases." These provisions counsel insist were not observed and that therefore there was not and could not have been "an adjudication of the controversy" by the Supreme Court. There was nothing, it is insisted, but the Electric Company's petition before the court, and that none of the essential requirements of section 67 were observed. No writ of review was issued-none certified by the Commission or returned, no return day fixed or hearing had on a certified record, no appearance of the parties, no order of the court affirming or setting aside of the Commission's order. In other words the substance of the contention is that the court instead of hearing refused to hear, instead of adjudicating refused to adjudicate, and that from this negation of action or decision there cannot be an assertion of action or decision with the estopping force of res judicata assigned to it by the District Court. [1] Counsel to sustain the position that he has assumed and contends for insists upon a literal reading of the statute and a discussion of the elements of res judicata. We need not They are *familiar and necessarily cannot be put out of mind, and the insistence upon the literalism follow counsel into the latter. *372 of the statute meets in resistance the common and, at times, necessary practice, of courts to determine upon the face of a pleading what action should be taken upon it. The petition is not in the record. We may presume it was circumstantial in its exposition of the proceedings before the Commission and of the (Petition for Rehearing Received Jan. 5, 1920. Decided Jan. 19, 1920.) latter's decisions and orders, and exhibited and submitted to the court the questions it was authorized to entertain-whether the No. 276. Commission "pursued its authority, including 1. CRIMINAL LAW 11662 (8)—DENIAL OF CHALLENGE FOR CAUSE HARMLESS ERROR. a determination of whether the order or decision" violated "any right" of the company "under the Constitution of the United States or of the state of California." [2] Whether upon such an exhibition of the proceedings and questions the court was required to pursue the details of the section or decide upon the petition was a matter of the construction of the section and the procedure under it. And the Supreme Court has so decided. L. Ghriest, Petitioner, v. R. R. Com'n, 170 Cal. 63, 148 Pac. 195; Mt. Konocti Light & Power Co. v. Max Thelen et al., 170 Cal. 468, 150 Pac. 359; E. Clemens Horst Co. v. R. R. Commission, 175 Cal. 660, 166 Pac. 804; Hooper & Co. v. R. R. Comm., 175 Cal. 811, 165 Pac. 689. In those cases the applications for writs of certiorari were denied, which was tantamount to a decision of the court that the orders and decisions of the Commission did not exceed its authority or violate any right of the several petitioners under the Constitution of the United States or of the state of California. And so with the denial of the petition of the Electric Company-it had like effect and was the exercise of the judicial powers of the court. And we repeat, to enable the invocation of such powers was the purpose of section 67, and they could be exercised upon the display in the petition of the proceedings before the Commission and of the grounds +373 upon which they were assailed. And we * ed here. Williams v. Bruffy, 102 U. S. 248, 255, 26 L. Ed. 135. And further, to quote the District Court: "Such a determination is as effectual as an estoppel as would have been a formal judgment upon issues of fact. Calaf v. Calaf, 232 U. S. 371, 34 Sup. Ct. 411, 58 L. Ed. 642; Hart Steel Co. et al. v. Railroad Supply Co., 244 U. S. 294, 299, 37 Sup. Ct. 506, 61 L. Ed. 1148." the questions presented, and its subsequent conclusive effect upon the rights of the Electric Company. Therefore the decree of the District Court is affirmed. The court held, and we concur, that absence of an opinion by the Supreme Court did not affect the quality of its decision or detract from its efficacy as a judgment upon (251 U. S. 380) STROUD v. UNITED STATES. Where defendant, by the statute allowed 20 peremptory challenges, was in fact allowed 21, and it does not appear that any objectionable juror sat on the trial, his right to peremptory challenge was not abridged to his prejudice by an erroneous denial of a challenge for cause. 2. JURY 108-JUROR UNALTERABLY FOR CAPITAL PUNISHMENT SUBJECT TO CHALLENGE FOR CAUSE. In a homicide case, where testimony of a juror made it reasonably certain that in the event of conviction for murder in the first degree he would render no other verdict than one which would require capital punishment, court should have granted a challenge for cause. In Error to the District Court of the United States for the District of Kansas. Upon Petition for Rehearing. Former opinion adhered to. For former opinion, see 251 U. S. 15, 40 Sup. Ct. 50, 64 L. Ed. Messrs. Isaac B. Kimbrell and Martin J. O'Donnell, both of Kansas City, Mo., for plaintiff in error on petition for rehearing. Memorandum opinion by direction of the Court, by Mr. Justice DAY. this court affirmed the judgment of the UnitIn this proceeding on November 24, 1919, ed States District Court for the District of Kansas rendered upon a verdict convicting the plaintiff in error of murder in the first degree. 381 A petition for rehearing has been presented. It has been considered, and we find occasion to notice only so much thereof as refers to the refusal of the court below to sustain the plaintiff in error's challenge for cause as to the juror Williamson. The other grounds urged have been examined and found to be without merit. Williamson was called as a juror, and, as we said in our former opinion, was challenged for cause by the plaintiff in error. This challenge was overruled, and the juror was then challenged peremptorily by the accused. The testimony of Williamson made it reasonably certain that in the event of conviction for murder in the first degree he For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |
