Bergner & Engel Brewing Co. v. Dreyfus

• Decision Date: 29 October 1898
• Citation: Bergner & Engel Brewing Co. v. Dreyfus, 172 Mass. 154, 51 N.E. 531 (Mass. 1898)
• Parties: BERGNER & ENGEL BREWING CO. v. DREYFUS.
• Court: Supreme Judicial Court of Massachusetts

172 Mass. 154

51 N.E. 531

BERGNER & ENGEL BREWING CO. v. DREYFUS.

Supreme Judicial Court of Massachusetts, Suffolk.

October 29, 1898

COUNSEL

Hayes & Williams, for plaintiff.

T.F Strange and B.S. Ladd, for defendant.

OPINION

HOLMES J.

This is a suit by a Pennsylvania corporation to recover a debt for goods sold and delivered here. The only defense is a discharge in insolvency under our statutes, which, of course commonly is no defense at all. This was reaffirmed unanimously in 1890, after full consideration of the objections now urged, and it was decided also--not for the first time--that the general language of the insolvent law was not intended to affect access to Massachusetts courts by a local rule of procedure unless the substantive right was barred by the discharge. Bank v. Batcheller, 151 Mass. 589, 24 N.E. 917. The grounds urged for an exception in the present case are that the plaintiff, although its brewery and main offices are in Pennsylvania, has an office in Boston, and maintains here a complete outfit for the distribution of its products, that it has a license of the fourth class, under Pub.St. c. 100, § 10, and that it has complied with the laws regulating foreign corporations doing business here, including, we assume, that which requires the appointment of the commissioner of corporations its "attorney upon whom all lawful processes in any action or proceeding against it may be served." St.1884, c. 330, § 1. See St.1895, c. 157.

We are of opinion that these facts are not enough to bring the plaintiff under the operation of the state insolvent law. It is settled that doing business here does not have that effect upon a citizen or corporation of another state. Guernsey v. Wood, 130 Mass. 503; Mill Co. v. Holmes, 156 Mass. 11, 30 N.E. 176. It is not pointed out what the license, whether valid or void, has to do with the matter, and we do not perceive that complying with the laws concerning foreign corporations ought to have any greater effect. We think it plain that the words first quoted from St.1884, c. 330, § 1, do not mean that by appointing the commissioner of corporations their attorney foreign corporations agree not only that publication of notice in insolvency proceedings shall have the effect of personal service upon them in an action, but also that, as a result, they shall be subject to the jurisdiction of the state insolvency proceedings, so as to be bound by a discharge.

The most that could be deduced from the appointment would be that if, on other grounds, a foreign corporation were subject to the operation of the insolvent law, publication of notice should have the same effect upon it as upon other creditors in making it a party to the proceedings. But we do not suppose that it would be suggested that a natural person--a creditor, who was a citizen of another state--lost his immunity, and became a party to the proceedings, merely by his accidental presence in the commonwealth at the moment when the notice appeared. Olivieri v. Atkinson, 168 Mass. 28, 46 N.E. 422. No greater direct effect than the actual presence of a natural person can be attributed to the presence of an attorney authorized to receive service of process. Furthermore, we doubt whether the act of 1884 purports to give the appointment even so much effect as that. The language discloses no thought about insolvent proceedings; and when, at a later date, it was decided to make foreign corporations subject to be put into insolvency here, it was thought proper to provide expressly that service upon the commissioner of corporations should be a sufficient notice to the corporation of the presentment of the petition by creditors against it. St.1890, c. 321, § 1. If the act of 1884 attempted to do more than we have construed it to attempt, its validity might be drawn in doubt as requiring the corporation to surrender a privilege secured to it by the constitution and laws of the United States. Southern Pac. Co. v. Denton, 146 U.S. 202, 207, 13 Sup.Ct. 44.

The independent ground on which it is urged that the plaintiff is subject to the insolvent law in the present case is that the plaintiff is domesticated in this state, as shown by the facts above recited, of which the appointment of an attorney is only one. The word "domesticated," which was used in the argument for the defendant, presents no definite legal conception which has any bearing upon the case. We presume that it was intended to convey in a conciliatory form the notion that the plaintiff was domiciled here,--"resident," in the language of Pub.St. c. 157, § 81,--and therefore barred by the language and legal operation of the act. It could not be contended that the corporation was a citizen of Massachusetts. In such sense as it is a citizen of any state it is a citizen of the state which creates it, and of no other. But there are even greater objections to a double domicile than there are to double citizenship. Under the law as it has been, a man might find himself owing a double allegiance without any choice of his own. But domicile--at least for any given purpose--is single by its essence. Dicey, Confl.Laws, 95. A corporation does not differ from a natural person in this respect. If any person, natural or artificial, as a result of choice, or on technical grounds of birth or creation, has a domicile in one place, it cannot have one elsewhere, because what the law means by domicile is the one technically pre-eminent headquarters, which, as a result either of fact or of fiction, every person is compelled to have in order that by aid of it certain rights and duties which have been attached to it by the law may be determined. It is settled that a corporation has its domicile in the jurisdiction of the state which created it, and, as a consequence, that it has not a domicile anywhere else. Boston Inv. Co. v. City of Boston, 158 Mass. 461-463, 33 N.E. 580; Shaw v. Mining Co., 145 U.S. 444, 450, 12 Sup.Ct. 935; Martine v. Society, 53 N.Y. 339, 346. The so-called modifications of this rule by statutes like the act of 1884 do not modify it, because jurisdiction of the ordinary personal actions does not depend upon domicile, but only upon such presence within the jurisdiction as to make service possible. See In re Hohorst, 150 U.S. 653, 14 Sup.Ct. 221. But the operation of our insolvent law, by its very terms, may, and in this case does, depend upon the domicile of the creditor, and, as there can be no doubt, either in fact or in law that the plaintiff was domiciled in Pennsylvania in such a sense that a statute like Pub.St. c. 157, § 81, would hit it there, it cannot have been domiciled here for the same purpose at the same time.

Judgment for the plaintiff affirmed.

DISSENTING

FIELD C.J. (dissenting).

The defendant, who is and was a citizen of Massachusetts, filed a voluntary petition in insolvency in the court of insolvency for the county of Suffolk, on which he was adjudged an insolvent debtor, and, due proceedings being had, he received his discharge. The plaintiff is a corporation organized under the laws of Pennsylvania. Its principal offices are in Philadelphia, and it manufactures and sells malt liquors. It has complied with the statutes of this commonwealth regulating foreign corporations having a usual place of business in the commonwealth, and it has an office and storeroom in Boston, which it hires in its own name, where it sells its products at wholesale. It hires an agent, styled a manager, a bookkeeper, and delivery men, for the conduct of its business in Boston; and it owns there a complete set of office furniture, and horses and wagons sufficient for the delivery of the goods which it sells in Boston. All the employés reside in this commonwealth. It received from the board of police of the city of Boston a license in its name of the fourth class, to sell intoxicating liquors in that city as a wholesale dealer. The defendant ordered of the plaintiff, at its office in Boston, beer and ale, which were delivered to him in Boston, from the plaintiff's storeroom there; and some time after this purchase was made, and the goods delivered, the defendant filed his petition in insolvency. The plaintiff did not prove its claim in the proceedings in insolvency, and now contends in this action that the discharge is not a bar, because it is a citizen of the state of Pennsylvania. There is no doubt that the words of the statutes relating to discharges in insolvency, as well as the words of the discharge itself, make the discharge a bar. Pub.St. c. 157, § 81, provides that the debtor, upon obtaining his discharge, shall be absolutely discharged from all provable debts founded "on any contract made by him subsequently to the last day of July in the year eighteen hundred and thirty-eight and while an inhabitant of this state, if made within this state, to be performed within the same, or due to any person resident therein at the time of the first publication of the notice of the issuing of the warrant." The contract sued on was made while the defendant was an inhabitant of this state, and was made within the state, and was performed within the state; and therefore it is exactly within the terms of the statutes. Whether or not the debt is due to a person resident within this state at the time of the first publication of the notice may depend upon the question whether the plaintiff corporation had a domicile within the state. If our statutes relating to insolvency are constitutional and valid statutes, the courts of this state must enforce them. If they are in violation of the constitution of the United States, in its application to the case, to that extent they are void. Whatever may be the rule of comity adopted by other courts in enforcing our statutes, the courts of...