Circular Advertising Co. v. American Mercantile Co.

• Decision Date: 01 July 1913
• Citation: 66 Fla. 96,63 So. 3
• Parties: CIRCULAR ADVERTISING CO. v. AMERICAN MERCANTILE CO.
• Court: Florida Supreme Court

63 So. 3

66 Fla. 96

CIRCULAR ADVERTISING CO. v. AMERICAN MERCANTILE CO.

Florida Supreme Court

July 1, 1913

Error to Circuit Court, Duval County; R. M. Call, Judge.

Action by the Circular Advertising Company, a corporation, against the American Mercantile Company, a corporation. Judgment for defendant, and plaintiff brings error. Reversed.

Syllabus by the Court

SYLLABUS

Where the transactions between parties constitute interstate commerce, and are consequently not subject to burdensome state regulations, a note given as a result of such transactions is likewise not subject to burdensome state regulations.

Where a state cannot, under the law, directly discriminate against or burden interstate commerce, it cannot do so by indirection.

A state cannot legally burden or destroy the ultimate rights of parties growing out of their interstate commerce dealings, at least until those rights cease to have any direct relation to the interstate transactions out of which they arose.

A state may not, in any form or under any guise, directly burden interstate commerce or the rights proximately flowing therefrom.

Rights growing out of interstate commerce cannot lawfully be rendered ineffectual by state action under the guise of a public regulation.

Where it is alleged and admitted by demurrer that the plaintiff is a foreign corporation engaged solely in interstate traffic and does not maintain an office or place of business in the state, and that the contract upon which is predicated the note sued on involves articles prepared out of the state and shipped into the state to customers, such transactions are interstate commerce, and not subject to the provisions of chapter 5717, Acts of 1907, requiring foreign corporations to file specified statements, and to pay designated fees, before such foreign corporations can transact any business in the state, and making void contracts made without complying with the statute.

Chapter 5717, Acts of 1907, is designed as a regulation of intrastate transactions by foreign corporations, and is not intended to apply to interstate transactions, or to regulate or to burden interstate commerce, or to operate in conflict with valid federal regulations.

COUNSEL Marks, Marks & Holt, of Jacksonville, for plaintiff in error.

Fleming & Fleming, of Jacksonville, for defendant in error.

OPINION

WHITFIELD J.

The amended declaration herein, filed by the advertising company against the mercantile company, is in two counts as follows:

'First count: For that the defendant, on the 29th day of June 1911, by its promissory note now overdue, promised to pay to the plaintiff $631.33 90 days after date, but did not pay the same. And plaintiff claims $1,000 damages.

'Second count: And plaintiff further sues the defendant for that the defendant, on or about the 1st day of July, 1911, was and became indebted to the plaintiff in the sum of $41.30, money payable by defendant to plaintiff for work done and materials furnished by the plaintiff for the defendant at its request. And plaintiff claims $1,000 damages.'

A copy of the note and a bill of particulars were also filed.

The following pleas were filed:

'As to the first count of said declaration, that the note therein sued upon was made by this defendant as part consideration for work done and materials furnished by the plaintiff to this defendant company, that the note was made in the state of Florida and related to property and (or) a contract or contracts affecting the liability of the plaintiff within the state of Florida, and that at the date of said note, to wit, on the 29th day of June, A. D. 1911, every contract made by and on behalf of any foreign corporation affecting its liability or relating to property within the state of Florida, before such corporation had filed in the office of the Secretary of State an authenticated copy of its charter, or articles of incorporation, and had received from the Secretary of State a permit to transact business in this state, was void on behalf of said corporation, and that on the date of said note, to wit, June 29, 1911, the said the Circular Advertising Company, a corporation, had not complied with the laws of this state, in that it had not filed in the office of the Secretary of State a duly authenticated copy of its charter or articles of incorporation, and had not then received from the said Secretary of State a permit to transact business in this state, and the said note was executed in Jacksonville, Fla., where the contract and (or) liability aforesaid was entered into and incurred.

'Wherefore said note is void and unenforceable against this defendant.

'And for a plea as to the second count of said declaration defendant says that the work done and materials furnished by the plaintiff, as therein alleged, was done and were furnished in pursuance of a contract (or contracts) affecting the liability of the plaintiff, and related to property within the state of Florida, and that at the date of said work being done and materials being furnished, to wit, on or about the 1st day of July, A. D. 1911, as alleged in said declaration, every contract made by or on behalf of any foreign corporation, affecting its liability or relating to property within the state of Florida, before such corporation had filed in the office of the Secretary of State an authenticated copy of its charter, or articles of incorporation, and had received from the Secretary of State a permit to transact business in this state, was void on behalf of said corporation, and that on the date of said work being done and said materials being furnished, to wit, on or about July 1, 1911, the said the Circular Advertising Company, a corporation, had not complied with the laws of this state, in that it had not filed in the office of the Secretary of State a duly authenticated copy of its charter or articles of incorporation, and had not then received from the said Secretary of State a permit to transact business in this state, and the said contract for the work done and materials furnished was made in Jacksonville, Fla., where the liability complained of was also incurred.

'Wherefore said note is void and unenforceable against this defendant.'

A demurrer to these pleas was overruled.

The following replications, with others, were filed:

'For second replication to the plea to the first count of the declaration plaintiff says that, in stating the rule of law outlined in and by said plea, defendant is relying upon a certain Florida statute, same being an act to prescribe the terms and conditions upon which foreign corporations for profit may transact business within this state; and plaintiff says that, since the passage and taking effect of said act, it has been and now is a foreign corporation engaged solely in interstate traffic into the state of Florida, and that it never has had or maintained an office or place of business within said state. Plaintiff further says that the contract referred to in defendant's said plea called for a series of advertising matter such as plaintiff was accustomed to prepare and sell, which plaintiff by said contract undertook to prepare outside this state, and did thereafter prepare for defendant outside the state of Florida, to wit, in the state of Ohio, and which was according to said contract and the intent and meaning of the parties thereto, to be shipped out in small quantities, and was actually shipped thereafter in small quantities, from time to time, as directed by defendant, direct from plaintiff's place of business in Ohio to certain customers of the defendant, not only to points within the state of Florida, but also to points within other states, to wit, North Carolina and South Carolina, so that the shipments called for by said contract, and which were actually made thereunder, were interstate shipments of merchandise; and plaintiff avers that the note sued upon in said first count of the declaration was given in part payment for the work done and performed and the shipments so made by plaintiff under said contract.

'Wherefore plaintiff says that it was not transacting business, or...