Alpena Portland Cement Co. v. Jenkins & Reynolds Co.

• Decision Date: 07 April 1910
• Citation: 244 Ill. 354,91 N.E. 480
• Court: Illinois Supreme Court
• Parties: ALPENA PORTLAND CEMENT CO. v. JENKINS & REYNOLDS CO.

244 Ill. 354

91 N.E. 480

ALPENA PORTLAND CEMENT CO.

v.JENKINS & REYNOLDS CO.

Supreme Court of Illinois.

Feb. 16, 1910.

Rehearing Denied April 7, 1910.

Appeal from Municipal Court of Chicago; Edward A. Dicker, Judge.

Action by the Alpena Portland Cement Company against the Jenkins & Reynolds Company. From a judgment for plaintiff, defendant appealed to the Appellate Court, and the case was transferred to the Supreme Court. Affirmed.

Edwin C. Crawford, for appellant.

Bulkley, Gray & More, for appellee.

COOKE, J.

This is an action in debt, brought by appellee in the municipal court of Chicago against appellant. The declaration recites that appellee obtained a judgment against appellant in the United States Circuit Court for the Eastern District of Michigan at the October term, 1907, thereof, for the sum of $1,209.50 and costs, which judgment has not been paid. Appellant filed a plea in abatement to the declaration, setting up that the plaintiff is organized for profit under the laws of the state of Michigan; that it is not a railroad or telegraph company, nor in the insurance, banking, or money loaning business; that the subjectmatter in this suit for which plaintiff is seeking judgment consists of five car loads of cement sold by plaintiff to defendant, and by defendant bought, April 15, 1902, in Chicago, in the state of Illinois, and that plaintiff had not, at the commencement of this suit, complied with the statute of Illinois regulating the right of a foreign corporation to do business in this state. Appellee filed a general demurrer to this plea, and the demurrer was sustained. Appellant elected to stand by the plea, and the court entered judgment in favor of appellee for $1,397.20. Appellant prayed an appeal to the Appellate Court for the First District, which was allowed. Upon the motion of appellee the AppellateCourt has transferred the cause to this court on the ground that constitutional questions are involved.

The ultimate question for our determination in this case is whether, under the facts disclosed by the plea in abatement, appellee is prohibited from maintaining this suit by reason of the provisions of an act of the General Assembly of this state entitled ‘An act to regulate the admission of foreign corporations for profit, to do business in the state of Illinois,’ approved May 18, 1905, in force July 1, 1905. Laws 1905, p. 124.

By the comity which exists between the states, and in the absence of any express law to the contrary, implied permission is granted to a foreign corporation to exercise its corporate powers in a state other than that of its domicile, provided the exercise of such powers is not repugnant to the policy of the state or prejudicial to its interests. Carroll v. City of East St. Louis, 67 Ill. 568, 16 Am. Rep. 632;Bank of Augusta v. Earle, 13 Pet. 519, 10 L. Ed. 274. A state, however, has the right to prohibit a foreign corporation from exercising any part or all of its charter powers within its borders, to impose such terms and conditions upon its right to do business in the state, as it may see fit, or to entirely exclude it from the state. Ducat v. City of Chicago, 48 Ill. 172, 95 Am. Dec. 529; Bank of Augusta v. Earle, supra; Paul v. Virginia, 8 Wall. 168, 19 L. Ed. 357. It necessarily follows that, in so far as permission has not been withdrawn by statute duly passed by the Legislature, a foreign corporation may still exercise its corporate powers in this state. The question is therefore presented, to what extent does the act in question limit the right of a foreign corporation to exercise its charter powers in this state?

Before proceeding to a consideration of this question, however, it will be proper to dispose of a contention made by appellant that the plea in abatement shows that appellee has transacted business in this state in violation of the statute. This contention is based upon the allegation of the plea that the subject-matter for which appellee is seekingjudgment consists of five car loads of cement sold by appellee to appellant, and by appellant bought, April 15, 1902, in Chicago. This suit is not brought upon the contract of sale of the cement, but is brought upon a foreign judgment. This allegation of the plea does not disclose any of the facts surrounding the transaction. It is not set out in what manner the sale was made; whether in pursuance of a mail order, by a traveling salesman, by a branch house of appellee located in Chicago, or in some other manner. The statute in force at the time of the alleged sale differed somewhat from the present law, but provided that a corporation which had not complied with its terms should not be ‘authorized or permitted to transact business in this state.’ The penalty imposed was substantially the same as that of the present statute, hereinafter referred to. The circumstances under which this sale was made are immaterial, as it was but a single transaction, and under the holding in Cooper Manf. Co. v. Ferguson, 113 U. S. 727, 5 Sup. Ct. 739, 28 L. Ed. 1137, was not a violation of the statute. In that case the Constitution and a statute of the state of Colorado were under consideration. Each provided that no foreign corporation should do any business in the state of Colorado without complying with certain conditions therein expressed, and the United States Supreme Court held that the doing of a single act of business without such compliance was not a violation of the statute. The transaction as set out in the plea under consideration here, being a single act, did not constitute a violation of the law as it then existed, and it would not be within the inhibition of the present act.

Section 1 of the present act regulating the admission of foreign corporations for profit to do business in this state, the title of which is above set out, provides ‘that before any foreign corporation for profit shall be permitted or allowed to transact any business or exercise any of its corporate powers in the state of Illinois, other than insurance companies,building and loan companies and surety companies, they shall be required to comply with the provisions of this act and shall be subject to all of the regulations prescribed herein, as well as all other regulations, limitations and restrictions applying to corporations of like character organized under the laws of this state.’ Sections 2 to 5, inclusive, specify what steps shall be taken by the...