author: By MILLER, J.

text:
    STATE, ex rel. CROCKETT, Petitioner, v. ALVIS, Warden, Respondent.
    Ohio Appeals, Second District, Franklin County.
    No. 4540.
    Decided March 8, 1951.
    Otis C. Buchanan, Columbus, for petitioner.
    C. William O’Neill, Atty. Geni., Max H. Dennis, Asst. Atty. Geni., Columbus, for respondent.
   OPINION

By MILLER, J.

This is an action in habeas corpus originating in this Court. The record reveals that on September 20, 1948, the petitioner was charged with failing to provide for his minor child in violation of §13008 GC; that on May 23, 1949, a plea of guilty was entered and sentence was deferred and the defendant was placed on probation for five years on condition that he pay ten dollars per week for the support of hiá child and report to the sheriff of Washington County monthly. On June 8, 1950, the petitioner was brought before the court charged with violating the terms of his probation. He admitted the violation, the judgment entry reciting the procedure in detail as follows:

“* * * The defendant, John W. Crockett, having admitted that he had not reported to the sheriff or made the payments as ordered by the court on May 23rd, 1949, the postponement of the imposition of sentence was set aside.
“The Prosecutor made a statement, and Attorney Henderson spoke in behalf of his client.
“The Court, being fully advised in the premises, asked the defendant, John W. Crockett, if he had anything to say why judgment should not be pronounced against him; and having nothing to say but what he has already said:
“It is therefore the sentence of the Court, that the said defendant, John W. Crockett, serve not less than one (1) nor more than three (3) years in the Ohio State Penitentiary, and that he pay the costs of this prosecution, taxed at Fifty-three and 65/100 Dollars ($53.65).
“The Prosecutor, Ernest E. Erb, is hereby appointed Trustee to receive any benefits for the defendant’s child.”

One of the grounds urged by the petitioner is that he did not receive a proper judicial inquiry as required by §13452-7 GC. This section merely requires that when brought before the judge or magistrate he shall “inquire into the conduct of the defendant” which the record clearly reveals was done here. The charges were admitted to be true. Thereupon counsel were permitted to make their statements in behalf of the State and the defense. The procedure followed meets the requirements of the statute and conforms to the rule announced in the case of State of Ohio v. Skypeck, 77 Oh Ap 225.

A transcript of docket and journal entries has been introduced in evidence which shows that prior to the petitioner’s arrest on this charge a divorce was granted to the wife and he was ordered to pay five dollars per week as support money for the child. Mr. Erb, the Prosecuting Attorney, was the attorney for the wife in the divorce action and for this reason it is claimed that he acted in a dual capacity, both as attorney for the wife and as Prosecuting Attorney, which prevented him from having the proper judicial inquiry. We are unable to see how this could have affected the nature of the hearing in any manner whatsoever. The petitioner was in court with his counsel and admitted the truth of the charges. It is also urged by the petitioner that under §13452-1, et seq., GC, he could not be placed on probation for a period of time in excess of the maximum sentence; therefore the court had no jurisdiction at the time sentence was pronounced. Several cases are cited holding this to be the law under former §§13710 and 13711 GC, but these sections have been repealed and the present statute §13452-5 GC became effective on October 18, 1933. This section provides:

“The probation provided for in this chapter shall continue for such period as the judge or magistrate shall determine, and may be extended from time to time, the total period, however, not exceeding five years, * *

The petitioner relies on §13452-1 GC which provides that:

“* * * such judge or magistrate may suspend the imposition of the sentence and place the defendant on probation in the manner provided by law, * *

It will be noted that this section places no limitation upon the probationary period as claimed by petitioner but merely provides that the probationer’s sentence must be in the manner provided by law. Secs. 13452-1 and 13452-5 GC must be construed together and in so doing it must be determined that §13452-5 GC defines the probationary period of time.

The application will be denied.

HORNBECK, PJ, WISEMAN, J, concur.


source: Caselaw Access Project

author: By BRITTON, Justice.

license: Public Domain

text:
    PERKINS v. BENGUET CONSOL. MINING CO. et al. (Two Cases).
    Common Pleas Court, Clermont County.
    Nos. 22185 and 22191.

      Cors, Scherer & Hair, Cincinnati, by Gordon H. Scherer, Charles F. Hartsock, Cincinnati, for plaintiff.
    Judge John W. Hausserman, New Richmond, pro se, Lucien H. Mercier, Washington, D. C., Ely, White & Davidson, Batavia, by Judge C. G. White and Nichols, Speidel & Nichols, all of Batavia, represented by Harold D. Nichols, Batavia, for defendants.
   OPINION

By BRITTON, Justice.

These causes came into this court on motion following the filing of two Petitions in two cases by the same Plaintiff, and against the same Defendant, or Defendants.

Identical motions in the two cases have been filed, and the motions read as follows: “* * * Comes now the Defendant, Benguet Consolidated Mining Company, and appearing specially for the purpose of this motion only, and disclaiming any intention of entering other than a special appearance for the purposes of this motion, hereby moves the Court for an order quashing and setting aside the attempted service of alias summons heretofore issued against this Defendant, and for an order quashing and setting aside the return of said attempted service.”

In these cases, certain relief is asked by the Plaintiff as will be noted from the pleadings so filed against the Defendant, Benguet Consolidated Mining Company.

And now certain stipulations have been filed in each of these causes and one reading of the same seems to be identical with the other, and they, therefore, appear as follows:

“* * *• It is stipulated and agreed by and between counsel for the plaintiff, Idonah Slade Perkins, and counsel for the defendant, Benguet Consolidated Mining Company, as follows:
“1. That this stipulation shall in no wise constitute an Entry of Appearance in this cause by the defendant, Benguet Consolidated Mining Company, and that this stipulation is entered into only and specially for the purposes of the Motion of the defendant to Quash Service of Summons in this cause.
“2. That the testimony, exhibits, briefs and arguments of counsel, introduced in the Court of Common Pleas of Hamilton County, Ohio, in Case No. A-1G3-968, being styled, ‘Idonah Slade Perkins, plaintiff, v First National Bank of Cincinnati, et al., defendants, [79 N. E. 2d 159]’ by both plaintiff and this defendant, in support of and opposing the Motion to Quash Service of Summons filed by this defendant in said cause, and the record of said cause to the date of this stipulation, are hereby introduced in this cause so as to constitute, together with such additional evidence, exhibits, briefs and arguments, as either party may offer, the entire record, evidence, exhibits, briefs and arguments, in support of and in opposition to the Motion to Quash Service of Summons filed by the defendant, Benguet Consolidated Mining Company, in this cause.
“Cors, Scherer & Hair by Gordon H. Scherer
Attorneys for Plaintiff
Charles G. White
Attorney for Defendant,
Benguet Consolidated Mining Company”

Now, the Benguet Consolidated Mining Company apparently was, for all intents and purposes, organized under the laws of the Philippine Islands as that which may be called a corporation and indeed it was a corporation insofar as the laws then prevailing were concerned, and so far as that connected here.

It appearing that it was organized and thereafter, for many years, until, and including the present time, existed as a corporation insofar as the laws of the Philippine Islands were concerned.

Under Article 122 of the Code of Commerce of Spain, there are some several manners in which an association of persons may be joined together for the purpose of operating a business, or businesses, which appears as follows:

“1st: A regular, general, copartnership in which all of the parties under a collective and commercial name bind themselves to participate in the proportion they may establish in some right and obligation.
“2d: The limited copartnership to which one or more persons contribute a specific amount of capital to a common fund to become liable for the business transactions of the firm executed exclusively by others under a collective name.
“3d: The corporation in which the members form a common fund by means of specific parts, or portions, represented by shares, or in any other unquestionable manner, leaving its management to removable managers, or administrators, who represent the company under an appropriate denomination according to the purpose, or undertaking, for which funds are to be employed.”

The latter of the above Philippine laws, then existent, seems to be that particular portion under which this Defendant was originally organized, or came into being, in its originality, and under which it has existed since, up to, and including this time.

The general evidence in this case further discloses that during the year 1903 and following the close of the war with Spain, the Defendant, organized itself under the Code of Commerce to which I have just now referred.

It may be said that it was organized for the purpose, or purposes, of mining gold and/or its kindred products. This organization has been operating, apparently, from its very inception, to the time and the date of this hearing, as and for gold mining and kindred products in the home state of its creation.

It must, however, be noted from all of the evidence and the exhibits in this case that in 1906 there came to the Phillipine Islands a Corporation Code which, in substance, changed the then existing partnership and corporation lawá with reference to their various original existences. However, when this 1906 change, or amendment, came into being, it was not for the purpose of changing any of the theretofore existing corporate, or partnership laws, or those created thereunder, at least insofar as their original inception, or organization, may have been there connected. It was, apparently, a law designated for the benefit of future business organizations which may, or might, come into the Islands for the purpose of the betterment of the Islands, as well as for the future good being of its business organizations.

Now, if any organization whose inception became a being prior to the passage of the 1906 law, desired to follow or become a part or be reorganized, or re-created, so to speak, under the new 1906 law, it, or they, might, of their own volition, freely and voluntarily be, or become, reorganized thereunder. Otherwise, it, or they, would not, of necessity, fall under the law of 1906.

It seems to follow, beyond peradventure of doubt in this case, that this Defendant did not see fit to reorganize, to reinvest itself in the law insofar as it pertained to it, or to re-create its being in and/or under the law of 1906. Therefore, it would only be reasonable to conclude that for circumstances of its own, it did not so desire to follow the new law then and there created. And, from the evidence, it further appears that this Defendant did not even make an attempt to re-create, reorganize, or otherwise, itself, under the 1906 law so that now a Court in hearing, can only say, by these words, that this Defendant is yet existent under its original and parentage organization as of 1903 without complying, and legally so, with the laws of 1906, and is yet a corporation under the 1903 organization.

It further appears that changes were made in the latter law with reference to partnerships, copartnerships, and corporations, but due to the fact that Defendant did not, in any wise, comply with this new law, then the Court is not required to go into any of the provisions of the new law, and the Court does not feel in this cause, or in these causes, that there is any connection; that, is to say, a binding connection upon this Defendant with the law of 1906.

It is further noted from the evidence that the main office or the business office, of this Defendant was located in the city of Manila, in the Philippine Islands, and that it has operated its office in this city, within the Islands, since it originally came into existence and being.

Now, the Plaintiff here, in these cases, makes certain claims. Those claims are not at issue at this time, the sole question here being whether or not the summons, heretofore served in these causes, was, or was not, properly and legally served under the existent laws at the time of its, or their, service by the Sheriff.

The service of summons here shows this:

«* * * on April 4th, 1947, the Sheriff of Clermont County, Ohio, received a summons to be served and that on April 4th, 1947, he served John W. Haussermann, etc., by personally handing to him a true and certified copy thereof with all endorsements thereon.
(Signed) Clyde Dericks,
Sheriff of Clermont County, Ohio.”
“It is further shown by the record that on May 2d, 1947, Sheriff of Clermont County, received, at 11:00 o’clock A. M., he served John W. Haussermann by serving a copy of the summons upon him personally and also Benguet Consolidated Mining Company by serving a copy of the summons, personally, on John W. Haussermann, President, General Manager, Controlling Member, and duly authorized Representative and Agent in the United States and state of Ohio by personally handing to him a certified copy thereof, with all endorsements thereon.
(Signed) Clyde Dericks,
Sheriff of Clermont County, Ohio.”

The above, as referred to, being in Case No. 22185 of the Common Pleas Court of Clermont County, Ohio, and it will be further noted from the record in Case No. 22191 of the Common Pleas Court of Clermont County, Ohio, that—

“The Sheriff of Clermont County, Ohio, received a summons April 8th, 1947, at 9:30 o’clock A. M., and on April 8th, 1947, he served C. L. Meeker, Cashier of the First National Bank of New Richmond, Ohio, John W. Haussermann, President of Benguet Consolidated Mining Company, and John W. Haussermann, Parent Resident and General Manager, by handing to each of them a true and certified copy thereof, with all endorsements thereon.
(Signed) Clyde Dericks,
Sheriff of Clermont County, Ohio.”
“And also an alias summons which the Sheriff received on May 2d, 1947, at 11:00 o’clock A. M., and on May 2d, 1947, served John W. Haussermann, by serving a copy of the summons upon him, personally, and also Benguet Consolidated Mining Company by serving a copy of the summons on John W. Haussermann, personally, President, General Manager, Controlling Member, and duly authorized Representative and Agent in the United States and state of Ohio by personally handing to him a true and certified copy thereof, with all endorsements thereon.
(Signed) Clyde Dericks,
Sheriff of Clermont County, Ohio.”

Now, it is upon these summons and returns thereof that the issues here have been raised.

Stipulations have been filed in these causes which appear and are of record, and the Court now has heard both controversies which involve the same circumstances in one general hearing.

It will suffice to record here one of the stipulations which is identical with the other covering each of the causes heard by this Court as follows:

* * It is stipulated and agreed by and between counsel for the Plaintiff, Idonah Slade Perkins, and counsel for the Defendant, Benguet Consolidated Mining Company, as follows:
“1st: That this stipulation shall, in no wise, constitute an Entry of Appearance in this cause by the Defendant, Benguet Consolidated Mining Company, and that this stipulation is entered into only and specially for the purposes of the motion of the Defendant to quash service of summons in this cause.
“2d: That the testimony, exhibits. Briefs, and arguments of counsel introduced in the Court of Common Pleas of Hamilton County, Ohio, in Case No. A-103968 being styled ‘Idonah Slade Perkins, Plaintiff, v. First National Bank of Cincinnati, et al., Defendants’ by both Plaintiff and this Defendant, in support of, and opposing the motion to quash service of summons filed by this Defendant in said cause and the record of said cause, to the date of this stipulation, are hereby introduced in this cause so as to constitute, together with such additional evidence, exhibits, Briefs, and arguments as either party may offer, the entire record, evidence, exhibits, Briefs, and arguments in support of and in opposition to the motion to quash service of summons filed by the Defendant, Benguet Consolidated Mining Company, in this cause. Each of these stipulations have been duly authenticated by the signatures of counsel representing the respective parties in litigation.”

Very able counsel and well-worded Briefs have been presented to the Court as and from another hearing in Hamilton County, Ohio. That case involved, in the main, the same issues as the causes now in hearing in this Court.

However, in addition to all of the testimony and exhibits used in Hamilton County and in the Common Pleas Court of that county, there has been in this court voluminous, additional testimony in the nature of expert statements as and for a comparison of the laws of the state of Ohio, and those of the Philippine Islands, in a general endeavor to make record of certain facts and circumstances which, of necessity, involve themselves in and with the laws of the state of Ohio, and the laws of the Commonwealth of the Phillipine Islands. It is interesting, indeed, for the Court to be privileged to hear and to be advised of this expert knowledge and comparison of the two similar, if not identical, laws of the state of Ohio and the Commonwealth of the Philippine Islands. This testimony, however, is in addition, as stated before, to that general evidence presented before the Court of Common Pleas in Hamilton County, Ohio.

This, of itself, is not a criterion as to the correctness of either of the laws or as to the original organization, parentage, and inception of the Defendant, but is, indeed, of interest and of great knowledge to a Court deciding the issues in and on the motions so presented here. A Court, in deciding questions of law, must be advised and in order to be advised of the necessary and pertinent laws, must have had presented to it that evidence thereto, and that evidence in this case has been quite ably presented for the consideration of the Court and which evidence is and has been added to the record in this court which was not in the record of the Hamilton County case for the consideration of the Court there.

This cause has been presented in an entirely different light than it was in Hamilton County, and therefore this Court has had the benefit of the additional circumstances which were not presented in Hamilton County.

A volume of statements has been entered in the record by counsel which explain the foundations, in substance, of the general issues, and that record has been completed for future and further reference.

Volumes of law have been brought to the attention of the Court, a part of which the Court desires to mention, substantially, and in this Opinion at this time.

The Defendant claims that it is not doing business in the state of Ohio, and, on the othef hand, it is claimed by the Plaintiff that the Defendant is doing business within the State of Ohio.

Now, taking up the latter—

Is the Defendant doing business within the state of Ohio in the strictest sense of the word “doing business,” as may have been heretofore mentioned, and passed upon by the Courts of this country?

Now, in passing, as argued by counsel, it has been said that in the state of California in the case of Idonah Slade Perkins as Plaintiff, and Benguet Consolidated Mining Company, a corporation, as Defendant, the plaintiff claimed, as set out in proper exhibits, this fact:

In the Superior Court of the State of California in and for the city and county of San Francisco, this same Plaintiff, in her complaint, made this statement:

“At all of the times herein-mentioned, the above-named Defendant was, and ever since has been, and still is, a corporation organized, existing, and doing business under and by virtue of the laws of the Philippine Islands, and having its principal place of business in the city of Manila, Philippine Islands.”

This possibly has only been introduced and made an exhibit by photostat in order to show that the Plaintiff here, who was the same Plaintiff in California, said in California, in substance, that this same Defendant was a corporation in that case, and now the same Plaintiff here has, by extraordinarily well-worded phraseology, said in her pleadings that the same Defendant is an alien business association known as a Sociedad Anónima organized and existing under the laws of the Philippine Islands, Manila, Philippine Islands

Now, that, of itself, means little in these causes other than the fact that this Defendant was then a corporation, and now it is something, by Plaintiff’s own deductions, other than anything we, in Ohio, have ever heard of.

That is to say, according to Plaintiff’s counsel’s argument, a quantity upon which it is desirous of serving a summons within the state of Ohio provincing jurisdiction. Now, can it be said that because a subterfuge of things have been made that one can create a body upon which a summons may be legally served as designated and required by the General Code of the state of Ohio in order that a foreign Defendant, and an entirely foreign Plaintiff may ask to right her, or his, wrongs within the state of Ohio as against an entirely foreign corporation, and a corporation of the Philippine Islands?

Wording in the caption of any cause does not legally make jurisdictional supervision as giving a jurisdiction where or in what it is not legally authorized by the laws of that jurisdiction.

The record indicates in this case that this Plaintiff is a resident, so-called, of another state. That she is now a nonresident of the state of Ohio; that she has never been a resident of the state of Ohio.

There are a long line of decisions to the effect that the Ohio courts generally refuse jurisdictional, so-called, qualifications to enforce claims of entirely foreign personages bearing no direct inferences upon and with the laws of the state of Ohio authorizing jurisdiction. This action, in its original inception and provinces, was within the Commonwealth of the Philippine Islands.

Now, in the service, or so-called service, of the summonses in these cases, the questions involved are these, as stated before—

Is the Defendant here doing business within the state of Ohio?

Now, decisions have been cited to the Court and the Court has had the opportunity of hearing the argument of eminent counsel, very ably and theretofore prepared, and now to have had the opportunity of going over these citations given here it appears, in substance, this:

“Whether the Defendant is doing business within the state of Ohio to such an extent as will render it amenable, under our laws, to the service of summons under the Ohio Code.
“In 284 F. 550, appears the case of Consolidated Iron & Steel Company v. Maumee Iron & Steel Company in the Circuit Court of Appeals, 8th Circuit, October 26, 1922, in which a question very similar, if not identical, to these cases, appears, and in that case it was held by the Court that summons could not be properly made on a corporation which did not qualify to do business in this state. It had no office in this state. No managing agent had been appointed, pursuant to the Statute, and the corporation had no property in the state, although its President resided there, and as a matter of fact, carried on some correspondence and occasionally sent remittances to the corporation in its home state. Service of summons was made on the President under the Ohio Code.”

Now, it may be said that property is in effect, which, of itself, is not a possession such as would conceive it to be “a doing business” organized within the state.

This case goes further. The Consolidated Iron Sz Steel Company was a mining corporation in New Mexico, stockholders living there, its mining business there, and Frank Wesbara lived in Toledo, and was interested in the corporation, made various advances from time to time for stock, and was made President and continued as such until 1917. He carried on correspondence as an officer in the company’s name. Meetings of the Board of Directors were held there. He died. His brother was elected President and continued as President to advance funds, sent them to New Mexico for certain work. The company, in its original inception, never applied for rights to do business in Ohio, under our Code, had no property there excepting possibly some office equipment; no Managing Agent, under our Statute.

Now, in that case it was held by the Court that the voluntarily solicited transmission of funds from one state to a foreign corporation in another state was insufficient proof that the foreign corporation was doing business in the state from which the funds were derived. It is true an office had once been opened in the state of Ohio, the name of the company placed thereon, and a bank account was maintained within the state, and correspondence from the state apparently in that case was insufficient to establish a corporation doing business within the state of Ohio.

Now, in this case we have innumerable • correspondence as representative of New Richmond, Clermont County, Ohio, as written there. There is evidence of incoming correspondence to the Defendant in the county of Clermont and state of Ohio, but does that, under this Opinion, indicate the company is doing business within the state of Ohio, generally, or is qualified to do business within the state of Ohio?

It must, however, be remembered that the original right of action in this cause was born, conceived, and attributed within the limits of the jurisdiction of the courts of the Philippine Islands, and therefore, having been incepted within one jurisdiction, our courts in the United States seemingly hold that to have been originated within another jurisdiction, a jurisdictional infraction cannot be made to prevail upon another Court without the realm of its original and proper legal litigable basis.

Now, to refer back to the Hamilton County case, considerable evidence was there introduced and many exhibits presented; undoubtedly much argument to the Court, all of which is made a part of the record in this county. And such record as may have been presented in another court has been generally, by stipulations, agreed to and given to this Court for its consideration, and the Court has, in fairness to all chose in litigation here, considered and weighed all of thar evidence and those exhibits as have been presented.

The evidence in this court is a presentation of circumstances legally involved and involving this action which is for, and should be for, a final determination insofar as this Court may be in concern.

Now, going farther into the question of the service of summons—

Does the fact that the President of the defendant organization who has a residence within this county of Clermont give the Plaintiff the right, under the Ohio Code, to serve a summons regardless of the type of summons upon the President, so to speak, so as to become binding on the organization in a foreign country, when such organization has never applied for nor has it been granted a. license or authority to operate within the state of Ohio?

It is clearly and conclusively an elementary principle of law that one has a right to choose a domicile, but that domicile does not, under the prevalence of law in Ohio, constitute him, or it, doing business therein even though he be President of some corporation at his home, at his office, at or near that domicile, even though, under the case just here quoted, he is carrying on, to some extent, in an advisory capacity, some intermediate business of the organization of which he is President. That is indeed a large measure for any Court to assume, but that Court which assumes that measure must be backed up, generally, by the laws prevailing in that realm over which he has, or assumes, by Statute, jurisdiction.

This cause, having been originally instituted in this county, must be governed by the laws and regulations of this state, even though the inception of whatever right of action the Plaintiff may have had was incepted within the Commonwealth of the Philippine Islands. This Plaintiff comes here with an idea of prevalence in her claim and in an attempt to invoke jurisdiction upon this court for summons upon a corporation not only foreign with the states of the United States of America, but foreign to the extent that its original inception and being was in the Philippine Islands during the year of 1903.

Numerous and various citations have been presented and in American Jurisprudence, Volume 23 at Page 349, Section 367, it will be noted this:

In view of most Courts, which have considered the question, the purchase by a foreign corporation, within the state, of machinery, supplies, or stock in trade, for use in its business in another state and the acts necessarily incident thereto do not constitute “doing business” within the state requiring the corporation to comply with the local statutory prerequisites thereto, or making it amenable to the jurisdiction and process of local courts.

Now, visits to the state by officials of the corporation to make such purchases, even if occurring at regular intervals, will not warrant the inference that the corporation is present within the jurisdiction of the state.

A Defendant which had been served with process in New York was an Ohio corporation supplying a department store in Toledo, and another department store several miles away from Toledo. The company never made any sales in New York, but bought a large quantity of merchandise in New York. In fact, several million dollars worth of goods per year for use in its department stores in Ohio. Prom time to time, during the year, it sent a large staff of its buyers to New York and also its officers. The officers and buyers had stenographers in New York and some of the orders were confirmed in New York by officers of the company who happened to be there, but in that instance it held this:

The law is clear that purchases in New York by a ioreign corporation of a large part of the merchandise to be sold at its place of business outside the state, even if made upon visits occurring at regular intervals, does not warrant a holding that the corporation was present within the jurisdiction of the state.

Again, in 19 Ohio N. P., N. S., at page 492, in the case of Dickey v. Dayton Globe Iron Works Company, the Court held this: “The mere transaction of business by a corporation through one of its officers in another state does not constitute ‘doing business’ in that state within the meaning of the Statute relating to service of summons and service had upon such official, under such conditions, is defective and renders invalid proceedings based on such service.”

And, so, in Hurd v. John B. Ransom & Co., 13 Oh Ap at page 135, it has been stated that where “the President of such foreign corporation is in Ohio for the sole purpose of attending a national convention, his presence is merely temporary and incidental, and he is not ‘doing business’ within the meaning of the law to afford a sufficient basis for the service of his summons.”

And now that case goes further, and the Court says this:

“That service upon such foreign corporation, to be good, must be made upon the Managing Agent.”

Now, that goes back to §11290 GC and when the Sheriff’s return shows service only upon the President, and it not appearing what the duties of the President are nor that he is Managing Agent, it is incumbent upon the Plaintiff to prove that such President is the Managing Agent.

And, now, in 39 Oh Ap at page 38, 177 N. E. 49, in the case of Warren Tool & Forge Company v. Marcus, it will be noted this: “Presence in the state of New York cannot be attributed to an Ohio corporation from the facts that the corporation has a sales agency in that state, that the corporation’s printed stationery refers to the sales agency office as the New York office of the corporation, and that the sales agent causes the name of the corporation to be published in the city and telephone directories and posted in the lobby of the building in which the agent has an office.”

All of the above citations seem, without question of doubt, to pertain entirely to the issues in these causes, and for the Court to ignore such findings would be folly, indeed. The Court must, of necessity, follow, to some extent, at least, the findings so made by other Courts, not only in Ohio, but m other states of the Union.

Now, other findings have been made and in the case of Dunn v. Cedar Rapids Engineering Company of Delaware, etc., 9 Cir., 152 F. 2d 733, this finding was made:

“Dunn brought suit in the California State Superior Court against two corporations, residents of another state, upon a cause of action wholly arising in the other states. The corporations were doing business in California and had designated an agent upon whom service of summons could be served. Upon motion of the corporations the cause was removed to the United States District Court upon the grounds of diversity of citizenship. Thereupon the corporations defendants appeared specially and presented a motion to set aside, vacate and quash the service, and the motion was granted.”

In its decision, the Court reported the following cases:

It is said in Missouri Pacific Railway Company v. Clarendon Boat Oar Company, 257 U. S. 533, 535, 42 S. Ct. 210, 211, 66 L. Ed. 354, this:

“Provisions for making foreign corporations subject to service in the state is a matter of legislative discretion, and a failure to provide for such service is not a denial of due process. Still less is it incumbent upon a state in furnishing such process to make the jurisdiction over the foreign corporation wide enough to include the adjudication of transitory actions not arising in the state. Indeed, so clear is this that in dealing with statutes providing for service upon foreign corporations doing business in the state upon agents whose designation as such is especially required, this court has indicated a leaning toward a construction, where possible, that would exclude from their operation causes of action not arising in the business done by them in the state.

Now, it will be observed that speaking of originalities, these causes accrued, and were incepted, within the Philippine Islands and now it is sought to enforce whatever cause of action this Plaintiff may have had in the Philippines within the United States, and within the state of Ohio, and upon a corporation not authorized and not doing business within the state of Ohio.

It is also said in Rogers v. Guaranty Trust Company of New York, 288 U. S. 123, 53 S. Ct. 295, 297, 77 L. Ed. 652, that:

“It [is a] settled doctrine that a court — state or federal— sitting in one state will, as a general rule, decline to interfere with, or control by injunction or otherwise, the management of the internal affairs of a corporation organized under the laws of another state but will leave controversies as to such matters to the courts of the state of the domicile” of the corporation.

That is to say, courts of the state of the original domicile of that individual firm or corporation from which relief is or may be asked at the hands of the Court.

Now, this is of interest to the Court, as reported in the Court of Claims, Report 39, 1903-1904 of the Court of Claims of the United States of America, in the case of Philippine Sugar Estates Development Company, Ltd. v. United States 39 Ct. Cl. 225, in which it is said that: “The domicile of a corporation is that fixed by the status under which it is created. The establishment of a branch in a place, other than the domicile, does not affect the domicile.”

Now, in this case, and the issues joined here, it cannot be said amiss but that this Defendant had a right to choose, and in that respect it may be said that this Defendant chose, for its corporate existence, the Commonwealth of the Philippine Islands, due, of course, to the fact that it intended to mine gold and such kindred products as may be connected therewith.

Now, shall a Court say that this company was operating within the state of Ohio, when, in truth and in fact, its original inception was entirely within a Commonwealth other than that of the states of the United States of America.

It has always been an inherent right of free peoples to choose their, or its, respective vocation, place of business domicile, and investments then or thereafter accumulated for purposes of general, or special, business. And this Defendant, in so far as the record discloses, indicates in 1903 its place of business within the Philippine Islands with its head office and principal place of business in the city of Manila in the Islands, and has continued therein and thereat, since its original inception, without hindrance from any foreign legal or lawful states, or organizations, until and when the Japanese in World War No. II invaded the Islands and that invasion then and there caused this corporation to become inoperative by reason of the emergency. And now following that great war the corporation has, of itself, of its stockholder, of its officials, and those there connected, been in operation of the mines of its originality and domicile within the Commonwealth of the Philippine Islands and within a foreign country in so far as the state of Ohio may have, or now be concerned.

Since Defendant, Benguet Consolidated Mining Company, was originally created, under the law here referred to, it has existed under that corporation law and yet exists under the same, it must be treated as it is now existent. The evidence here, and all of the evidence, together with all of the exhibits, preponderates in favor of its being a corporation and entitled to be treated as such. Now, to serve summons or process upon a corporation, certain things are first necessary, under our laws, and our laws must be definitely considered, as well as strictly construed, and to consider, as well as strictly construe the Court is bound to follow that long line of decisions by eminent courts, not only in Ohio, but elsewhere and following those decisions would be to say that this corporation was not doing business in or within the state of Ohio in such a sense or entirety as to legally authorize its service in this state with process.

Although some transactions were carried on within the state of Ohio, under the cases cited and all of the evidence presented, the Court is of the opinion that this business of whatever nature it may have been and whatever nature it has been shown to be, is insufficient to place this Defendant in the category of doing business to a sufficient extent for legal service of summons upon it under the laws of the state of Ohio, and the motion, therefore, to quash and set aside the service of summons in this cause is, in the opinion of the Court, well taken and, therefore, such process should be and is set aside.

And during the hearing in these matters, Plaintiff’s counsel have presented the question as to whether or not the Defendant, Benguet Consolidated Mining Company, has not entered appearance by the filing of the motions here referred to.

Briefs have been presented on this question and it is found by these proceedings that the motions were in due form and the usual and ordinary motions generally filed for such purposes. And the Court finds, and is of the opinion, that this question is not based upon sufficient law to warrant the Court in finding that this Defendant has, by its original motions, entered an appearance here.

Entries may be prepared in these causes, saving all exceptions necessary to protect the right of those in litigation here.


author: MR. JUSTICE BURTON MR. JUSTICE MINTON,

text:
    PERKINS v. BENGUET CONSOLIDATED MINING CO. et,
    Supreme Court of the United States.
    No. 85.
    Decided March 3, 1952.

      Robert N. Gorman, Cincinnati, for petitioner.
    Lucien H. Mercier, Washington, D. C., for respondent.
   MR. JUSTICE BURTON

delivered the opinion of the Court.

This case calls for an answer to the question whether the Due Process Clause of the Fourteenth Amendment to the Constitution of the United States precludes Ohio from subjecting a foreign corporation to the jurisdiction of its courts in this action in personam. The corporation has been carrying on in Ohio a continuous and systematic, but limited, part of its general business. Its president, while engaged in doing such business in Ohio, has been served with summons in this proceeding. The cause of action sued upon did not arise in Ohio and does not relate to the corporation’s activities there. For the reasons hereafter stated, we hold that the Fourteenth Amendment leaves Ohio free to take or decline jurisdiction over the corporation.

After extended litigation elsewhere petitioner, Idonah Slade Perkins, a non-resident of Ohio, filed two actions in personam in the Court of Common Pleas of Clermont County, Ohio, 63 Abs 131, against the several respondents. Among those sued is the Benguet Consolidated Mining Company, here called the mining company. It is styled a “sociedad anónima” under the laws of the Philippine Islands, where it owns and has operated profitable gold and silver mines. In one action petitioner seeks approximately $68,400 in dividends claimed to be due her as a stockholder. In the other she claims $2,500,000 damages largely because of the company’s failure to issue to her certificates for 120,000 shares of its stock.

In each case the trial court sustained a motion to quash the service of summons on the mining company. Ohio Com. Pl., 99 N. E. 2d 515. The Court of Appeals of Ohio affirmed that decision, 88 Oh Ap 118, 44 O. O. 104, 57 Abs 533, 95 N. E. 2d 5, as did the Supreme Court of Ohio, 155 Oh St, 116, 44 O. O. 125, 98 N. E. 2d 33. The cases were consolidated and we granted certiorari in order to pass upon the conclusion voiced within the court below that federal due process required the result there reached. 342 U. S. 808, 72 S. Ct. 33, 96 L. Ed. —.

We start with the holding of the Supreme Court of Ohio, not contested here, that, under Ohio law, the mining company is to be treated as a foreign corporation. Actual notice of the proceeding was given to the corporation in the instant case through regular service of summons upon its president while he was in Ohio acting in that capacity. Accordingly, there can be no jurisdictional objection based upon a lack of notice to a responsible representative of the corporation.

The answer to the question of whether the state courts of Ohio are open to a proceeding in personam, against an amply notified foreign corporation, to enforce a cause of action not arising in Ohio and not related to the business or activities of the corporation in that State rests entirely upon, the law of Ohio, unless the Due Process Clause of the Fourteenth Amendment compels a decision either way.

The suggestion that federal due process compels the State to open its courts to such a case has no substance.

“Provisions for making foreign corporations subject to service in the state is a matter of legislative discretion, and a failure to provide for such service is not a denial of due process. Still less is it incumbent upon a state in furnishing such process to make the jurisdiction over the foreign corporation wide enough to include the adjudication of transitory actions not arising in the state.” Missouri, P. R. Co. v. Clarendon Co., 257 U. S. 533, 535, 42 S. C. 210, 211, 66 L. Ed. 354.

Also without merit is the argument that merely because Ohio permits a complainant to maintain a proceeding in personam in its courts against a properly served nonresident natural person to enforce a cause of action which does not arise out of anything done in Ohio, therefore, the Constitution of the United States compels Ohio to provide like relief against a foreign corporation.

A more serious question is presented by the claim that the Due Process Clause of the Fourteenth Amendment prohibits Ohio from granting such relief against a foreign corporation. The syllabus in the report of the case below, while denying the relief sought, does not indicate whether the Supreme Court of Ohio rested its decision on Ohio law or on the Fourteenth Amendment. The first paragraph of that syllabus is as follows:

“1. The doing of business in this state by a foreign corporation, which has not appointed a statutory agent upon whom service of process against the corporation can be made in this state or otherwise consented to service of summons upon it in actions brought in this state, will not make the corporation subject to service of summons in an action in personam brought in the courts of this state to enforce a cause of action not arising in this state and in no way related to the business or activities of the corporation in this state.” 155 Oh St, 116, 117, 44 O. O. 125, 98 N. E. 2d 33, 34.

If the above statement stood alone, it might mean that the decision rested solely upon the law of Ohio. In support of that possibility we are told that, under the rules and practice of the Supreme Court of Ohio, only the syllabus necessarily carries the approval of that court. As we understand the Ohio practice, the syllabus of its Supreme Court constitutes the official opinion of that court but it must be read in the light of the facts and issues of the case.

The only opinion accompanying the syllabus of the’ court below places the concurrence of its author unequivocally upon the ground that the Due Process Clause of the Fourteenth Amendment prohibits the Ohio courts from exercising jurisdiction over the respondent corporation in this proceeding. That opinion is an official part of the report of the case. The report, however, does not disclose to what extent, if any, the other members of the court may have shared the view expressed in that opinion. Accordingly, for us to allow the judgment to stand as it is would risk an affirmance of a decision which might have been decided differently if the court below nad felt free, under our decisions, to do so.

The eases primarily relied on by the author of the opinion accompanying the syllabus below are Old Wayne Life Ass’n. v. McDonough, 204 U. S. 8, 27 S. Ct. 236, 51 L. Ed. 345, and Simon v. Southern R. Co., 236 U. S. 115, 35 S. Ct. 255, 59 L. Ed., 492. Unlike the case at bar, no actual notice of the proceedings was received in those cases by a responsible representative of the foreign corporation. In each case, the public official who was served with process in an attempt to bind the foreign corporation was held to lack the necessary authority to accept service so as to bind it in a proceeding to enforce a cause of' action arising outside of the state of the forum. See 204 U. S. at pages 22-23, 27 S. Ct. at pages 240-241, and 236 U. S. at page 130, 35 S. Ct. at page 260. The necessary result was a finding of inadequate service in each case and a conclusion that the foreign corporation was not bound by it. The same would be true today in a like proceeding where the only service had and the only notice given was that directed to a public official who had no authority, by statute or otherwise, to accept it in that kind of a proceeding. At the time of rendering the above decisions this Court was aided, in reaching its conclusion as to the limited scope of the statutory authority of the public officials by this Court’s conception that the Due Process Clause of the Fourteenth Amendment precluded a state from giving its public officials authority to accept service in terms broad enough to bind a foreign corporation in proceedings against it to enforce an obligation arising outside of the state of the forum. That conception now has been modified by the rationale adopted in later decisions and particularly in International Shoe Co. v. Washington, 326 U. S. 310, 66 S. Ct. 154, 90 L. Ed. 95.

Today if an authorized representative of a foreign corporation be physically present in the state of the forum and be there engaged in activities appropriate to accepting service or receiving notice on its behalf, we recognize that there is no unfairness in subjecting that corporation to the jurisdiction of the courts of that' state through such service of process upon that representative. This has been squarely held to be so in a proceeding in personam against such a corporation, at least in relation to a cause of action arising out of the corporation’s activities within the state of the forum.

The essence of the issue here, at the constitutional level, is a like one of general fairness to the corporation. Appropriate tests for that are discussed in International Shoe Co. v. Washington, supra, 326 U. S. at pages 317-320, 66 S. Ct. at pages 158, 160. The amount and kind of activities which must be carried on by the foreign corporation in the state of the forum so as to make it reasonable and just to subject the corporation to the jurisdiction of that state are to be determined in each case. The corporate activities of a foreign corporation which, under state statute, make it necessary for it to secure a license and to designate a statutory agent upon whom process may be served provide a helpful but not a conclusive test. For example, the state of the forum may by statute require a foreign mining corporation to secure a license in order lawfully to carry on there such functional intrastate operations as those of mining or refining ore. On the other hand, if the same corporation carries on, in that state, other continuous and systematic corporate activities as it did here —consisting of directors’ meetings, business correspondence, banking, stock transfers, payment of salaries, purchasing of machinery, etc. — those activities are enough to make it fair and reasonable to subject that corporation to proceedings in personam in that state, at least insofar as the proceedings in personam seek to enforce causes of action relating to those very activities or to other activities of the corporation within the state.

The instant case takes us one step further to a proceeding in personam to enforce a cause of action not arising out of the corporation’s activities in the state of the forum. Using the tests mentioned above we find no requirement of federal due process that either prohibits Ohio from opening its courts to the cause of action here presented or compels Ohio to do so. This conforms to the realistic reasoning in International Shoe Co. v. Washington, supra, 326 U. S. at pages 318-319, 66 S. Ct. at pages 159-160:

“* * * there have been instances in which the continuous corporate operations within a state were thought so substantial and of such a nature as to justify suit against it on causes of action arising from dealings entirely distinct from those activities. See Missouri, K. & T. R. Co. v. Reynolds, 255 U. S. 565, 41 S. Ct. 446, 65 L. Ed. 788; Tauza v. Susquehanna Coal Co., 220 N. Y. 259, 115 N. E. 915; Cf. St. Louis S. W. R. Co. v. Alexander, supra [227 U. S. 218, 33 S. Ct. 245, 57 L. Ed. 486].
“* * * some of the decisions holding the corporation amendable to suit have been supported by resort to the legal fiction that it has given its consent to service and suit, consent being implied from its presence in the state through the acts of its authorized agents. Lafayette Insurance Co. v. French, 18 How. 404, 407; St. Clair v. Cox, supra 106 U. S. [350] 356, 1 S. Ct., [354] 359, 27 L. Ed. 222; Commercial Mutual Accident Co. v. Davis, supra, 213 U. S. [245] 254, 29 S. Ct. [445] 447, 53 L. Ed. 782; State of Washington v. Superior Court, 289 U. S. 361, 364, 365, 53 S. Ct. 624, 626, 627, 77 L. Ed. 1256. But more realistically it may be said that those authorized acts were of such a nature as to justify the fiction. Smolik v. Philadelphia & Reading Co., D. C., 222 F. 148, 151. Henderson, The Position of Foreign Corporations in American Constitutional Law, 94, 95.
“* * * Whether due process is satisfied must depend rather upon the quality and nature of the activity in relation to the fair and orderly administration of the laws which it was the purpose of the due process clause to insure. That clause does not contemplate that a state may make binding a judgment in personam against an individual or corporate defendant with which the state has no contacts, ties, or relations. Cf. Pennoyer v. Neff, supra [95 U. S. 714, 24 L. Ed. 565]; Minnesota Commercial Assn. v. Benn, 261 U. S. 140, 43 S. Ct. 293, 67 L. Ed. 573.”

It remains only to consider, in more detail the issue of whether, as a matter of federal due process, the business done in Ohio by the respondent mining company was sufficiently substantial and of such a nature as to permit Ohio to entertain a cause of action against a foreign corporation, where the cause of action arose from activities entirely distinct from its activities in Ohio. See International Shoe Co. v. Washington, supra, 326 U. S. at page 318, 66 S. Ct. at page 159.

The Ohio Court of Appeals summarized the evidence on the subject. 88 Oh Ap at pages 119-125, 95 N. E. 2d at pages 6-9. From that summary the following facts are substantially beyond controversy: The company’s mining properties were in the Philippine Islands. Its operations there were completely halted during the occupation of the Islands by the Japanese. During that interim the president, who was also the general manager and principal stockholder of the company, returned to his home in Clermont County, Ohio. There he maintained an office in which he conducted his personal affairs and did many things on behalf of the company. He kept there office files of the company. He carried on there correspondence relating to the business of the company and to its employees. He drew and distributed there salary checks on behalf of the company, both in his own favor as president and in favor of two company secretaries who worked there with him. He used and maintained in Clermont County, Ohio, two active bank accounts carrying substantial balances of company funds. A bank in Hamilton County, Ohio, acted as transfer agent for the stock of the company. Several directors’ meetings were held at his office or home in Clermont County. From that office he supervised policies dealing with the rehabilitation of the corporation’s properties in the Philippines and he dispatched funds to cover purchases of machinery for such rehabilitation. Thus he carried on in Ohio a continuous and systematic supervision of the necessarily limited wartime activities of the company. He there discharged his duties as president and general manager, both during the occupation of the company’s properties by the Japanese and immediately thereafter. While no mining properties in Ohio were owned or operated by the company, many of its wartime activities were directed from Ohio and were being given the personal attention of its president in that State at the time he was served with summons. Consideration of the circumstances which, under the law of Ohio, ultimately will determine whether the courts of that State will choose to take jurisdiction over the corporation is reserved for the courts of that State. Without reaching that issue of state policy, we conclude that, under the circumstances above recited, it would not violate federal due process for Ohio either to take or decline jurisdiction of the corporation in this proceeding. This relieves the Ohio courts of the restriction relied upon in the opinion accompanying the syllabus below and which may have influenced the judgment of the court below.

Accordingly, the judgment of the Supreme Court of Ohio is vacated and the cause is remanded to that court for further proceedings in the light of this opinion. It is so ordered.

Judgment vacated and cause remanded for further proceedings.

MR. JUSTICE BLACK concurs in the result.

MR. JUSTICE MINTON,

with whom the CHIEF JUSTICE joins, dissenting.

As I understand the practice in Ohio, the law as agreed to by the court is stated in the syllabus. If an opinion is filed, it expresses the views of the writer of the opinion and those who may join him as to why-the law was so declared in the syllabus. Judge Taft alone filed an opinion in the instant case.

The law as declared in the syllabus, which is the whole court speaking, is clearly based upon adequate state grounds. Judge Taft in his opinion expresses the view that the opinions of this Court on due process grounds require the court to declare the law as stated in the syllabus. As the majority opinion of this Court points out, this is an erroneous view of this Court’s decisions. “This brings the situation clearly within the settled- rule whereby this Court will not review a State court decision resting on an adequate and independent non-federal ground even though the State court may have also summoned to its support an erroneous view of federal law.” Radio Station WOW v. Johnson, 326 U. S. 120, 129, 65 S. Ct. 1475, 1480, 89 L. Ed. 2092.

The case of State Comm’n v. Van Cott, 306 U. S. 511, 59 S. Ct. 605, 83 L. Ed. 905. is not this case. There the case was not clearly decided on an adequate state ground but the state ground and the federal ground were so interwoven that this Court was “unable to conclude that the judgment rests upon an independent interpretation of the state law.” 306 U. S. at page 514, 59 S. Ct. at page 606. In the instant case, a clear statement of the state law is made by the court in the syllabus. Only Judge Taft has summoned the erroneous view of this Court’s decisions to his support of the adequate state ground, approved by the whole court.

What we are saying to Ohio is: “You have decided this case on an adequate state ground, denying service, which you had a right to do, but you don’t have to do it if you don’t want to, as far as the decisions of this Court are concerned.” I think what we are doing is giving gratuitously an advisory opinion to the Ohio Supreme Court. I would dismiss the writ as improvidently granted.

      . See Perkins v. Perkins, 57 Phil. R. 205; Harden v. Benguet Consolidated Mining Co., 58 Phil. R. 141; Perkins v. Guaranty Trust Co., 274 N. Y. 250, 8 N. E. 2d 849; Perkins v. Benguet Consolidated Mining Co., 55 Cal. App. 2d 720, 132 P. 2d 70, rehearing denied, 55 Cal. App. 2d 744, 132 P. 2d 102, certiorari denied, 319 U. S. 774, 63 S. Ct. 1435, 37 L. Ed. 1721; 60 Cal. App. 845, 141 P. 2d 19, certiorari denied, 320 U. S. 803, 815, 64 S. Ct. 429, 88 L. Ed. 485; Perkins v. First National Bank of Cincinnati, Com. Pl. Hamilton County, Ohio, 37 O. O. 162, 79 N. E. 2d 159.

      . Ohio requires a foreign corporation to secure a license to transact “business” in that State, Ohio General Code §8625-4, and to appoint a “designated agent” upon whom process may be served, §§8625-2, 8625-5. The mining company has neither secured such a license nor designated such an agent. While this may make it subject to penalties and handicaps, this does not prevent it from transacting business or being sued. §8625-25. If it has a “managing agent” in Ohio, service may be made upon him. §11290. Such service is a permissive alternative to service on the corporation through its president or other chief officer. §11288. Lively v. Picton, 6 Cir., 218 F. 401, 406-407. The evidence as to the business activities of the corporation in Ohio is summarized by the Ohio Court of Appeals. 88 Ohio App. 118, 119-125, 44 O. O. 104, 95 N. E. 2d 5, 6-9, 57 Abs 533. That court held that such activities did not constitute the transaction of business referred to in the Code. In its syllabus, however, the Supreme Court of Ohio, without passing upon the sufficiency of such acts for the above statutory purpose, and without defining its use of the term, affirmed the judgment dismissing the complaint and assumed that what the corporation had done in Ohio constituted “doing business” to an extent sufficient to be recognized in reaching its decision.

      . In 1858 the Supreme Court of Ohio promulgated the following rule: “A syllabus of the points decided by the Court in each case, shall be stated, in writing, by the Judge assigned to deliver the opinion of the Court, which shall be confined to the points of law, arising from the facts of the case, that have been determined by the Court, and the syllabus shall be submitted to the Judges concurring therein, for revisal, before publication thereof; and it shall be inserted in the book of reports without alteration, unless by the consent of the Judges concurring therein.” 5 Ohio St. vii.
      This policy has been recognized by statute. Bates Ohio R. S. §427, as amended, 103 Ohio Laws 1913, §1483, and 108 Ohio Laws 1919, §1483. It appears now in Ohio General Code §1483, as follows: “Whenever it has been thus decided to report a case for publication the syllabus thereof shall be prepared by the judge delivering the opinion, and approved by a mapority of the members of the court; and the report may be per curiam, or if an opinion be reported, the same shall be written in as brief and concise form as may be consistent with a clear presentation of the law of the case. * * * Only such eases as are hereafter reported in accordance with the provisions of this section shall be recognized by and receive the official sanction of any court within the state.”
      There are many references to this practice, both in the syllabi and opinions written for the Supreme Court of Ohio. Typical of these is the following:
      “It has long been the rule of this court that the syllabus contains the law of the case. It is the only part of' the opinion requiring the approval of all the members concurring in the judgment. Where the judge writing an opinion discusses matters or gives expression to his views on questions not contained in the syllabus, it is merely the personal opinion of that judge.” State ex rel. Donahey v. Edmondson, 89 Ohio St. 93, 107-108, 105 N. E. 269, 273, 52 L. R. A., N. S„ 305.
      See also, Williamson Heater Co. v. Radich, 128 Ohio St. 124, 190 N. E. 403; Baltimore & O. R. Co. v. Baillie, 112 Ohio St., 567, 148 N. E. 233. A syllabus must be read in the light of the facts in the case, even where brought out in the accompanying opinion rather than in the syllabus itself. See Williamson Heater Co. v. Radich, supra; Perkins v. Bright, 109 Ohio St. 14, 19-20, 141 N. E. 689, 690-691; In re Poage, 87 Ohio St. 72, 82-83, 100 N. E. 125, 127-128.

      . “However, the doing of business in a state by a foreign corporation, which has not appointed a statutory agent upon whom service of process against the corporation can be made in that state or otherwise consented to service of summons upon it in actions brought in that state, will not make the corporation subject to service of summons in an action in personam brought in the courts of that state to enforce a cause of action in no way related to the business or activities of the corporation in that state. Old Wayne Mutual Life Ass’n of Indianapolis v. MeDonough, 204 U. S. 8, 22, 23, 27 S. Ct. 236, 51 L. Ed. 345; Simon v. Southern Ry. Co., 236 U. S. 115, 129, 130 and 132, 35 S. Ct. 255, 59 L. Ed. 492. See, also, Pennsylvania Fire Ins. Co. of Philadelphia v. Gold Issue Mining & Milling Co., 243 U. S. 93, 95 and 96, 37 S. Ct. 344, 61 L. Ed. 610; Robert Mitchell Furniture Co. v. Selden Breck Construction Co., 257 U. S. 213, 215 and 216, 42 S. Ct. 84, 66 L. Ed. 201; International Shoe Co. v. Washington, 326 U. S. 310, 319 and 320, 6.6 S. Ct. 154, 90 L. Ed. 95.

        “An examination of the opinions of the Supreme Court of the United States in the foregoing cases will clearly disclose that service of summons in such an instance would be void as wanting in due process of law.” 155 Ohio St. 116, 44 O. O. 125, 119-120, 98 N. E. 2d 33, 35.

      . “* * * The obligation which is,here sued upon arose out of those very activities. It is evident that these operations establish sufficient contacts or ties with the state of the forum to make it reasonable and just according to our traditional conception of fair play and substantial justice to permit the state to enforce the obligations which appellant has incurred there. Hence we cannot say that the maintenance of the present suit in the State of Washington involves an unreasonable or undue procedure.” International Shoe Co. v. Washington, supra, 326 U. S. at page 320, 66 S. Ct. at page 160.

      . This citation does not disclose the significance of this decision but light is thrown upon it by the opinions of the state court below. Reynolds v. Missouri, K. & T. R. Co., 224 Mass. 379, 113 N. E. 413; 228 Mass. 584, 117 N. E. 913. In addition to the cases cited in the text see Barrow S. S. Co. v. Kane, 170 U. S. 100, 18 S. Ct. 526, 42 L. Ed. 964; Pennsylvania Fire Insurance Co. v. Gold Issue Mining Co., 243 U. S. 93, 37 S. Ct. 344, 61 L. Ed. 610 (statutory agent appointed); Philadelphia & Reading R. Co. v. McKibbin, 243 U. S. 264, 268-269, 37 S. Ct. 280, 281, 282, 61 L. Ed. 710 (question left open).

      . For like procedure followed under somewhat comparable circumstances see State Tax Comm’n v. Van Cott, 306 U. S. 511, 59 S. Ct. 605, 83 L. Ed. 950.


author: By THE COURT.

text:
    HOME OWNERS’ SERVICE CORPORATION, Plaintiff-Appellant, v. HADLEY et, Defendants-Appellees.
    Ohio Appeals, Second District, Franklin County
    No. 4485.
    Decided August 10, 1950.
    Marion A. Ross, Columbus, for plaintiff-appellant.
    George H. Chamblin, Columbus, for defendants-appellees.
   OPINION

By THE COURT.

This is a motion to dismiss the appeal, which is on questions of law and fact, because of the failure to file an appeal bond in conformity with §12223-6 GC, and the time for such filing has expired. The motion will be sustained, but the cause will be retained for hearing on questions of law only. See §11564 GC. The appellant will be granted leave to perfect said appeal in accordance with Supplement to Rule VII of this Court.

MILLER, PJ, HORNBECK and WISEMAN, JJ, concur.


text:
    HOME OWNERS’ SERVICE CORPORATION, Plaintiff-Appellant, v. HADLEY et, Defendants-Appellees.
    Ohio Appeals, Second District, Franklin County.
    No. 4485.
    Decided December 4, 1950.
   OPINION

By THE COURT.

Submitted on motion of defendants-appellees seeking an order dismissing the appeal for failure to comply with Supplement to Rule VII of this Court. The record supports the ground set forth and the motion is well taken. The appeal will not be dismissed, but the judgment will be affirmed, as we think this to be the better procedure.

MILLER, PJ, HORNBECK and WISEMAN, JJ, concur.


author: By MR. JUSTICE BLACK: MR. JUSTICE FRANKFURTER, whom MR. JUSTICE REED, MR. JUSTICE JACKSON and MR. JUSTICE BURTON

text:
    DICE v. AKRON, CANTON & YOUNGSTOWN R. CO.
    Supreme Court of the United States.
    No. 374.
    Decided February 4, 1952.
    Rice A. Hershey, Akron, for petitioner.
    William A. Kelly, Akron, for respondent.
   OPINION

By MR. JUSTICE BLACK:

Petitioner, a railroad fireman, was seriously injured when an engine in which he was riding jumped the track. Alleging that his injuries were due to respondent’s negligence, he brought this action for damages under the Federal Employers’ Liability Act, 45 U. S. C. §51 et seq., 45 U. S. C. A. §51 et seq., in an Ohio Court of Common Pleas. Respondent’s defenses were (1) a denial of negligence and (2) a written document signed by petitioner purporting to release respondent in full for $924.63. Petitioner admitted that he had signed several receipts for payments made him in connection with his injuries but denied that he had made a full and complete settlement of all his claims. He alleged that the purported release was void because he had signed it relying on respondent’s deliberately false statement that the document was nothing more than a mere receipt for back wages.

After both parties had introduced considerable evidence the jury found in favor of petitioner and awarded him a $25,000 verdict. The trial judge later entered judgment notwithstanding the verdict. In doing so he reappraised the evidence as to fraud, found that petitioner had been “guilty of supine negligence” in failing to read the release, and accordingly held that the facts did not “sustain either in law or in equity the allegations of fraud by clear, unequivocal and convincing evidence.” This judgment notwithstanding the verdict was reversed by the Court of Appeals of Summit County, Ohio, on the ground that under federal law, which controlled, the jury’s verdict must stand because there was ample evidence to support its finding of fraud. The Ohio Supreme Court, one judge dissenting, 155 Oh St, 185, 44 O. O. 162, 98 N. E. 2d 301, reversed the Court of Appeals’ judgment and sustained the trial court’s action, holding that: (1) Ohio, not federal, law governed; (2) under that law petitioner, a man of ordinary intelligence who could read, was bound by the release even though he had been induced to sign it by the deliberately false statement that it was only a receipt for back wages; and (3) under controlling Ohio law factual issues as to fraud in the execution of this release were properly decided by the judge rather than by the jury. We granted certiorari because the decision of the Supreme Court of Ohio appeared to deviate from previous decisions of this Court that federal law governs cases arising under the Federal Employers’ Liability Act.

First. We agree with the Court of Appeals of Summit County, Ohio, and the dissenting judge in the Ohio Supreme Court and hold that validity of releases under the Federal Employers’ Liability Act raises a federal question to be determined by federal rather than state law. Congress in §51 of the Act granted petitioner a right to recover against his employer for damages negligently inflicted. State laws are not controlling in determining what the incidents of this federal right shall be. Chesapeake & Ohio R. Co. v. Kuhn, 284 U. S. 44, 52 S. Ct. 45, 76 L. Ed. 157; Ricketts v. Pennsylvania R. Co., 2 Cir., 153 F. 2d 757, 759, 164 A. L. R. 387. Manifestly the federal rights affording relief to injured railroad employees under a federally declared standard could be defeated if states were permitted to have the final say as to what defenses could and could not be properly interposed to suits under the Act. Moreover, only if federal law controls can rhe federal Act be given that uniform application throughout the country essential to effectuate its purposes. See Garrett v. Moore-McCormack Co., 317 U. S. 239, 244, 63 S. Ct. 246, 250, 87 L. Ed. 239, and cases there cited. Releases and other devices designed to liquidate or defeat injured employees’ claims play an important part in the federal Act’s administration. Compare Duncan v. Thompson, 315 U. S. 1, 62 S. Ct. 422, 86 L. Ed. 575. Their validity is but one of the many interrelated questions that must constantly be determined in these cases according to a uniform federal law.

Second. In effect the Supreme Court of Ohio held that an employee trusts his employer at his peril, and that the negligence of an innocent worker is sufficient to enable his employer to benefit by its deliberate fraud. Application of so harsh a rule to defeat a railroad employee’s claim is wholly incongruous with the general policy of the Act to give railroad employees a right to recover just compensation for injuries negligently inflicted by their employers.- And this Ohio rule is out of harmony with modern judicial and legislative practice to relieve injured persons from the effect of releases fraudulently obtained. See cases collected in note, 164 A. L. R. 402-415. See also Union Pacific R. Co. v. Harris, 158 U. S. 326, 15 S. Ct. 843, 39 L. Ed. 1003; Callen v. Pennsylvania R. Co., 332 U. S. 625, 68 S. Ct. 296, 92 L. Ed. 242; Chesapeake & O. R. Co. v. Howard, 14 App. D. C. 262, affirmed 178 U. S. 153, 20 S. Ct. 880, 44 L. Ed. 1015; Graham v. Atchison, T. & S. F. R. Co., 9 Cir., 176 F. 2d 819. We hold that the correct federal rule is that announced by the Court of Appeals of Summit County, Ohio, and the dissenting judge in the Ohio Supreme Court — a release of rights under the Act is void when the employee is induced to sign it by the deliberately false and material statements of the railroad’s authorized representatives made to deceive the employee as to the contents of the release. The Trial Court’s charge to the jury correctly stated this rule of law.

Third. Ohio provides and has here accorded petitioner the usual jury trial of factual issues relating to negligence. But Ohio treats factual questions of fraudulent releases differently. It permits the judge trying a negligence case to resolve all factual questions of fraud “other than fraud in the factum.” The factual issue of fraud is thus split into fragments, some to be determined by the judge, others by the jury.

It is contended that since a state may consistently with the Federal Constitution provide for trial of cases under the Act by a nonunanimous verdict, Minneapolis & St. Louis R. Co. v. Bombolis, 241 U. S. 211, 36 S. Ct. .595, 60 L. Ed. 961, Ohio may lawfully eliminate trial by jury as to one phase of fraud while allowing jury trial as to all other issues raised. The Bombolis case might be more in point had Ohio abolished trial by jury in all negligence cases including those arising under the federal Act. But Ohio has not done this. It has provided jury trials for cases arising under the federal Act but seeks to single out one phase of the question of fraudulent releases for determination by a judge rather than by a jury. Compare Testa v. Katt, 330 U. S. 386, 67 S. Ct. 810, 91 L. Ed. 967.

We have previously held that “The right to trial by jury is ‘a basic and fundamental feature of our system of federal jurisprudence’” and that it is “part and parcel of the remedy afforded railroad workers under the Employers’ Liability Act.” Bailey v. Central Vermont R. Co., 319 U. S. 350, 354, 63 S. Ct. 1062, 1064, 87 L. Ed. 1444. We also recognized in that case that to deprive railroad workers of the benefit of a jury trial where there is evidence to support negligence “is to take away a goodly portion of the relief which Congress has afforded them.” It follows that the right to trial by jury is too substantial a part of the rights accorded by the Act to permit it to be classified as a mere “local rule of procedure” for denial in the manner that Ohio has here used. Brown v. Western R. Co., 338 U. S. 294, 70 S. Ct. 105, 94 L. Ed. 100.

The trial judge and the Ohio Supreme Court erred in holding that petitioner’s rights were to be determined by Ohio law and in taking away petitioner’s verdict when the issues of fraud had been submitted to the jury on conflicting evidence and determined in petitioner’s favor. The judgment of the Court of Appeals of Summit County, Ohio, was correct and should not have been reversed by the Supreme Court of Ohio. The cause is reversed and remanded to the Supreme Court of Ohio for further action not inconsistent with this opinion.

Reversed and remanded with directions. It is so ordered.

MR. JUSTICE FRANKFURTER, whom MR. JUSTICE REED, MR. JUSTICE JACKSON and MR. JUSTICE BURTON

join, concurring for reversal but dissenting from the Court’s opinion.

Ohio, as do many other states, maintains the old division between law and equity even though the same judge administers both. The Ohio Supreme Court has told us what, on one issue, is the division of functions in all negligence actions brought in the Ohio courts: “Where it is claimed that a release was induced by fraud (other than fraud in the factum) or by mistake, it is * * * necessary, before seeking to enforce a cause of action which such release purports to bar, that equitable relief from the release be secured.” 155 Oh St 185, 186, 44 O. O. 162, 98 N. E. 2d 301, 304. Thus, in all cases in Ohio the judge is the trier of fact on this issue of fraud, rather than the jury. It is contended that the Federal Employers’ Liability Act requires that Ohio courts send the fraud issue to a jury in the cases founded on that Act. To require Ohio to try a particular issue before a different fact-finder in negligence actions brought under the Employers’ Liability Act from the fact-finder on the identical issue in every other negligence case disregards the settled distribution of judicial power between Federal and State courts where Congress authorizes concurrent enforcement of federally-created rights.

It has been settled ever since the Second Employers' Liability Cases (Mondou v. New York, N. H. & H. R. Co.) 223 U. S. 1, 32 S. Ct. 169, 56 L. Ed. 327, that no State which gives its courts jurisdiction over common law actions for negligence may deny access to its courts for a negligence action founded on the Federal Employers’ Liability ‘ Act. Nor may a State discriminate disadvantageously against actions for negligence under the Federal Act as compared with local causes of actions in negligence. McKnett v. St. Louis & S. F. R. Co., 292 U. S. 230, 234, 54 S. Ct. 690, 692, 78 L. Ed. 1227; Missouri ex rel. Southern R. Co. v. Mayfield, 340 U. S. 1, 4, 71 S. Ct. 1, 3, 95 L. Ed. 3. Conversely, however, simply because there is concurrent jurisdiction in Federal and State courts over actions under the Employers’ Liability Act, a State is under no duty to treat actions arising under that Act differently from the way it adjudicates local actions for negligence, so far as the mechanics of litigation, the forms in which law is administered, are concerned. This surely covers the distribution of functions as between judge and jury in the determination of the issues in a negligence case.

In 1916 the Court decided without dissent that States in entertaining actions under the Federal Employers’ Liability Act need not provide a jury system other than that established for local negligence actions. States are not compelled to provide the jury required of Federal courts by the Seventh Amendment. Minneapolis & St. L. R. Co. v. Bombolis, 241 U. S. 211, 36 S. Ct. 595, 60 L. Ed. 961. In the thirty-six years since this early decision after the enactment of the Federal Employers’ Liability Act, 35 Stat. 65 (1908), the Bombolis case has often been cited by this Court but never questioned. Until today its significance has been to leave to States the choice of the fact-finding tribunal in all negligence actions, including those arising under the Federal Act. Mr. Chief Justice White’s opinion cannot bear any other meaning:

“Two propositions as to the operation and effect of the 7th Amendment are as conclusively determined as is that concerning the nature and character of the jury required by that Amendment where applicable, (a) That the first ten Amendments, including of course, the 7th, are not concerned with state action, and deal only with Federal action. We select from a multitude of cases those which we deem to be leading: Barron v. Baltimore, 7 Pet. 243, 8 L. Ed. 672; Fox v. Ohio, 5 How. 410, 434, 12 L. Ed. 213, 223; Twitchell v. Commonwealth, 7 Wall. 321, 19 L. Ed. 223; Brown v. New Jersey, 175 U. S. 172, 174, 20 S. Ct. 77 [78], 44 L. Ed. 119, 120; Twinning v. New Jersey, 211 U. S. 78, 93 [29 S. Ct. 14, 17], 53 L. Ed. 97, 103. And, as a necessary corollary, (b) that the 7th Amendment applies only to proceedings in courts of the United States, and does not in any manner whatever govern or regulate trials by jury in state courts, or the standards which must be applied concerning the same. Livingston v. Moore, 7 Pet. 469, 552, 8 L. Ed. 751, 781; The Justices v. Murray, 9 Wall. 274, 19 L. Ed. 658; Edwards v. Elliott, 21 Wall. 532, 22 L. Ed. 487; Walker v. Sauvinet, 92 U. S. 90, 23 L. Ed. 678; Pearson v. Yewdall. 95 U. S. 294, 24 L. Ed. 436.” 241 U. S. at page 217, 36 S. Ct. at page 596.
“And it was, of course, presumably an appreciation of the principles so thoroughly settled which caused Congress, in the enactment of the employers’ liability act, to clearly contemplate the existence of a concurrent power and duty of both Federal and state courts to administer the rights conferred by the statute in accordance with the modes of procedure prevailing in such courts.” 241 U. S. at page 218, 36 S. Ct. at page 597.
“The proposition that, as the 7th Amendment is controlling upon Congress, its provisions must therefore be applicable to every right of a Federal character created by Congress, and regulate the enforcement of such right, but in substance creates a confusion by which the true significance of the Amendment is obscured. That is, it shuts out of view the fact that the limitations of the Amendment are applicable only to the mode in which power or jurisdiction shall be exercised in tribunals of the United States, and therefore that its terms have no relation whatever to the enforcement of rights in other forums merely because the right enforced is one conferred by the law of the United States.” 241 U. S. at pages 219-220, 36 S. Ct. at page 597.

Although a State must entertain negligence suits brought under the Federal Employers’ Liability Act if it entertains ordinary actions for negligence, it need conduct them only in the way in which it conducts the run of negligence litigation. The Bombolis case directly establishes that the Employers’ Liability Act does not impose the jury requirements of the Seventh Amendment on the States pro tanto for Employers’ Liability litigation. If its reasoning means anything the Bombolis decision means that if a State chooses not to have a jury at all, but to leave questions of fact in all negligence actions to a court, certainly the Employers’ Liability Act does not require a State to have juries for negligence actions brought under the Federal Act in its courts. Or, if a State chooses to retain the old double system of courts, common law and equity —as did a good many States until the other day, and as four States still do — surely there is nothing in the Employers’ Liability Act that requires traditional distribution of authority for disposing of legal issues as between common law and chancery courts to go by the board. And if States are free to make a distribution of functions between equity and common law courts, it surely makes no rational difference whether a State chooses to provide that the same judge preside on both the common law and the chancery sides in a single litigation, instead of in separate rooms in the same building. So. long as all negligence suits in a State are treated in the same way, by the same mode of disposing equitable, non-jury, and 'common law, jury issues, the State does not discriminate against Employers’ Liability suits nor does it make any inroad upon substance.

Ohio and her sister States with a similar division of functions between law and equity are not trying to evade their duty under the Federal Employers’ Liability Act; nor are they trying to make it more difficult for railroad workers to recover, than for those suing under local law. The States merely exercise a preference in adhering to historic ways of dealing with a claim of fraud; they prefer the traditional way of making unavailable through equity an otherwise valid defense. The State judges and local lawyers who must administer the Federal Employers’ Liability Act in State courts are trained in the ways of local practice; it multiplies the difficulties and confuses the administration of justice to require, on purely theoretical grounds, a hybrid of State and Federal practice in the State courts as to a single class of cases. Nothing in the Employers’ Liability Act or in the judicial enforcement of the Act for over forty years forces such judicial hybridization upon the States. The fact that Congress authorized actions under the Federal Employers’ Liability Act to be brought in State as well as in Federal court seems a strange basis for the inference that Congress overrode State procedural arrangements controlling ail other negligence suits in a State, by imposing upon State courts to which plaintiffs choose to go the rules prevailing in the Federal courts regarding juries. Such an inference is admissible, so it seems to me, only on the theory that Congress included as part of the right created by the Employers’ Liability Act an assumed likelihood that trying all issues to juries is more favorable to plaintiffs. At least, if a plaintiff’s right to have all issues decided by a jury rather than the court is “part and parcel of the remedy afforded railroad workers under the Employers Liability Act,” the Bombolis case should be overruled explicitly instead of left as a derelict bound to occasion collisions on the waters of the law. We have put the questions squarely because they seem to be precisely what will be roused in the minds of lawyers properly pressing their clients’ interests and in the minds of trial and appellate judges called upon to apply this Court’s opinion. It is one thing not to borrow trouble from the morrow. It is another thing to create trouble for the morrow.

Even though the method of trying the equitable issue of fraud which the State applies in all other negligence cases governs Employers’ Liability cases, two questions remain for decision: Should the validity of the release be tested by a Federal or a State standard? And if by a Federal one, did the Ohio courts in the present case correctly administer the standard? If the States afford courts for enforcing the Federal Act, they must enforce the substance of the right given by Congress. They cannot depreciate the legislative currency issued by Congress — either expressly or by local methods of enforcement that accomplish the same result. Davis v. Wechsler, 263 U. S. 22, 24, 44 S. Ct. 13, 14, 68 L. Ed. 143. In order to prevent diminution of railroad workers’ nationally-uniform right to recover, the standard for the validity of a release of contested liability must be federal. We have recently said: “One who attacks a settlement must bear the burden of showing that the contract he has made is tainted with invalidity, either by fraud practiced upon him or by a mutual mistake under which both parties acted.” Callen v. Pennsylvania R. Co., 332 U. S. 625, 630, 68 S. Ct. 296, 298, 92 L. Ed. 242. Such proof of fraud need be only by a preponderance of relevant evidence. See Union Pacific R. Co. v. Harris, 158 U. S. 326, 15 S. Ct. 843, 39 L. Ed. 1003. The admitted fact that the injured worker signed the release is material in tending to show the release to be valid, but presumptions must not be drawn from that fact so as to hobble the plaintiff’s showing that it would be unjust to allow a formally good defense to prevail. See Section 5, Federal Employers’ Liability Act, 35 Stat. 65, 66, 45 U. S. C. Section 55, 45 U. S. C. A. Section 55.

The judgment of the Ohio Supreme Court must be reversed for it applied the State rule as to validity of releases, 155 Oh St 185, 44 O. O. 162, 98 N. E. 2d 301, and it is not for us to interpret Ohio decisions in order to be assured that on a matter of substance the State and Federal criteria coincide. Moreover, we cannot say with confidence that the Ohio trial judge applied the Federal standard correctly. He duly recognized that “the Federal law controls as to the validity of a release pleaded and proved in bar of the action, and the burden of showing that the alleged fraud vitiates the contracts or compromise or release rests upon the party attacking the release.” And he made an extended analysis of the relevant circumstances of the release, concluding, however, that there was no “clear, unequivocal and convincing evidence” of fraud. Since these elusive words fail to assure us that the trial judge followed the Federal test and did not require some larger quantum of proof, we would return the case for further proceedings on the sole question of fraud in the release.

      . The trial judge had charged the jury that petitioner’s claim of fraud must be sustained “by clear and convincing evidence,” but since the verdict was for petitioner, he does not here challenge this charge as imposing too heavy a burden under controlling federal law.

      . Chafee, Simpson, and Maloney. Cases on Equity (1951 ed.) 12.

      . Ibid.