Commonwealth v. Read Phosphate Co.

• Decision Date: 12 March 1902
• Citation: 113 Ky. 32,67 S.W. 45
• Parties: COMMONWEALTH v. READ PHOSPHATE CO. [1]
• Court: Kentucky Court of Appeals

67 S.W. 45

113 Ky. 32

COMMONWEALTH v. READ PHOSPHATE CO. ^[1]

Court of Appeals of Kentucky.

March 12, 1902

Appeal from circuit court, Logan county.

"To be officially reported."

Action by the commonwealth against the Read Phosphate Company to recover a penalty. Judgment for defendant, and plaintiff appeals. Reversed.

S. R Crewdson, Jno. E. Byars, W. L. Reeves, and E. A. Vick, for appellant.

E. B Drake and Hamilton Parks, for appellee.

WHITE J.

This is a penal action, brought by the commonwealth of Kentucky against the appellee, Read Phosphate Company, a corporation organized in the state of West Virginia, seeking to recover the penalty imposed by statute for engaging in business in this state without filing in the office of the secretary of state a statement, as required by section 571, Ky. St giving the location of its office in this state, and the name of an officer or agent thereat upon whom process might be served; the petition averring that the appellee had engaged in business in this state without having filed such statement. Appellee, by answer, admitted that it was a corporation created by the laws of West Virginia; denied it had engaged in business in this state as alleged, or at all and denied it had failed to file the statement required by law to be filed with the secretary of state. In a separate paragraph the appellee pleaded facts which showed that it simply took orders for fertilizer by and through a traveling salesman, and that the fertilizer was shipped to the purchaser direct from the company's wareroom in Nashville, Tenn.; the plea evidently being framed to show that, if appellee was at all engaged in business in this state, it was interstate commerce, and therefore could not be prohibited, or penalty imposed by the state for a failure to observe any regulation provided by our law. A reply denied the facts pleaded to show that appellee was engaged in interstate commerce. Upon the issues thus made a trial was had before a jury, and at the conclusion of all the evidence the court gave a peremptory instruction to find for appellee, which was done, and judgment entered accordingly, and to reverse that judgment this appeal is prosecuted.

We are informed by counsel in brief that the reason given by the court for directing a verdict for defendant was that the state had failed to prove that appellee had failed to file in the office of the secretary of state a statement as required by law, and that the burden of proving this failure was on the state. From the bill of exceptions in this record it appears that there was no proof as to the filing or failure to file this statement by either party, and although the president of appellee company was sworn as a witness he was not asked about the statement, whether it had been filed or not. If this failure on the part of the appellant, plaintiff below, to prove a failure to file the statement, was the reason that moved the trial court to give the peremptory instruction, there was error. The rule has long been settled in this state that in indictments for retailing spirituous liquors without a license the case was made out when the sale and venue was shown, and that the accused must show a license, if such he has. In Haskill v. Com., 3 B. Mon. 342, decided in 1842, the court said: "The presentment or indictment presents at once the issue as to the license, and, if the person charged is not without it, he is immediately relieved by its production. Thus, to show himself within the exception by the production of the requisite evidence of the fact in his possession, subjects him to no hardship, and, as we think, most appropriately devolves upon him." This rule of evidence is generally accepted as the true one in this class of cases in many of the states. See 5 Am. & Eng.

Enc. Law (2d Ed.) p. 42. Under this well-settled rule of evidence in this state the dunty of showing a compliance with statute by filing the required statement rested on defendant, and recovery of the penalty may be had when it is shown that a foreign corporation has engaged in business in this state without a showing by the state that a statement had not been filed. If the peremptory instruction was predicated on the idea of a failure of proof as to whether appellee was engaged in business in this state, there was also error. While we express no opinion on the evidence or facts proved, we are of opinion there was sufficient evidence to submit the case to the jury on the question as to whether or not it engaged in business in this state.

Counsel for appellee seriously contends that the statute requiring this statement to be filed is unconstitutional and void being in contravention of the federal constitution. The statute (section 571) reads: "All corporations except foreign insurance companies formed under the laws of this or any other state and carrying on any business in this state, shall at all times have one or more known places of business...