Commonwealth v. Hogan, McMorrow & Tieke Co.
| Decision Date | 27 May 1903 |
| Citation | 74 S.W. 737 |
| Parties | COMMONWEALTH v. HOGAN, McMORROW & TIEKE CO. |
| Court | Kentucky Court of Appeals |
Appeal from Circuit Court, Nelson County.
"Not to be officially reported."
Action by the commonwealth against the Hogan, McMorrow & Tieke Company. From a judgment in favor of defendant, plaintiff appeals. Affirmed.
D. J Wood and N.W. Halstead, for the Commonwealth. W. B. Stier for appellee.
This action was instituted by the commonwealth of Kentucky against the appellee, the Hogan, McMorrow & Tieke Company, a corporation organized under the laws of Indiana, engaged in the manufacture and sale of shoes at the city of Aurora Ind., to recover the penalty denounced by section 571 of the statutes for engaging in business in this state without giving the location of its offices in this state, and the name of an officer or agent thereat upon whom process might be served. The petition alleges that the defendant had unlawfully carried on its business of selling and delivering shoes to Wilson & Co., in Bardstown, Nelson county, Ky. without having complied with the provision of the statute. Summons issued on this petition, and was served on Harvey B. Hobbs, the alleged agent through whom the sale to Wilson & Co. was effected. The defendant entered its special appearance, and moved to quash the service of process upon Hobbs upon the ground that he was not an officer or agent of the defendant upon whom process could be served. This motion was overruled. It then filed answer, in which it admits that it is a foreign corporation, organized under the laws of the state of Indiana, engaged in the manufacture and sale of shoes in the city of Aurora, but alleges that the only sales or business ever conducted by it in Nelson county, Ky. was that of permitting a traveling salesman to solicit and forward from retail merchants doing business in Nelson county, from samples exhibited to them, orders addressed to it at Aurora, or its branch house in the city of Cincinnati Ohio, for shoes so manufactured by it, which orders were subject to the approval of the company at its place of business in Aurora, and, if so approved, were filled by shipment from its factory in the state of Indiana to Nelson county, Ky. and payment therefor made by draft, check, or remittance directed to the defendant, and pleaded that this was not the character of business contemplated by section 571, Ky. St. 1899, but that, if this section should be so construed, it is in violation of subsection 3 of section 8, art. 1, of the federal Constitution, wherein Congress is given the power to regulate commerce with foreign nations, and among the several states, and with the Indian...
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...as then declared by its highest court, that section 571 did not affect transactions in interstate commerce, Commonwealth v. Hogan, McMorrow & Tieke Co. (Ky.) 74 S. W. 737.3 Thus, before this action was begun, it was the settled law that such transactions of foreign corporations were not wit......
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