People v. Hawkins

• Decision Date: 27 September 1895
• Court: Michigan Supreme Court
• Parties: PEOPLE v. HAWKINS.

64 N.W. 736

106 Mich. 479

PEOPLE v. HAWKINS.

Supreme Court of Michigan

September 27, 1895

Exceptions from recorder's court of Detroit; William W. Chapin Judge.

Norval A. Hawkins was convicted of embezzlement, and excepts. Affirmed.

McGrath J., dissenting.

F. A. Baker, for appellant.

Allan H. Frazer, Pros. Atty., and Ormond F. Hunt, Ass't Pros. Atty., for the People.

HOOKER J.

The Standard Oil Company, of Ohio, a foreign corporation, has for several years done business in Michigan, having a general office in Detroit, through which its business for a portion of the state was done. This business consisted principally in selling petroleum to customers in this state. The oil was, as a rule, shipped to Detroit in tank and other cars, and there stored until sold, being then reshipped. In some instances, however, the oil was shipped direct from Ohio to the purchaser. All money received for sales of oil in that portion of the state that was within the jurisdiction of the Detroit office was sent to that office and came to the hands of the defendant, who was bookkeeper and assistant cashier. He was convicted of embezzling $2,600 of the company's money, and the case comes here upon exceptions before sentence. The errors complained of are said to be: (1) The failure of the court to direct a verdict for defendant, upon the ground that he was not the servant or agent of the Standard Oil Company, within the embezzlement statute, and that he embezzled none of its money. (2) The insufficiency of the allegation of time in the information. (3) The admission of testimony tending to show other acts of embezzlement. (4) The failure to leave certain specified questions of fact to the jury. (5) The refusal to instruct the jury that whether there was a valid and subsisting contract of employment was for the jury, and that they were not bound by the opinion of the court upon that subject.

1. The first question hinges upon the statute. 3 How. Ann. St. p. 3397, � 4161d6. This statute was added to the general act providing for the incorporation of domestic manufacturing companies, and was enacted in the year 1889. It provides that foreign corporations "organized *** either wholly or in part for any of the purposes" contemplated by the act referred to, "upon recording copies of their charter, or articles of incorporation, as provided in section nine" of said act, "and upon filing *** a resolution" authorizing any agent duly appointed to acknowledge service of process for the company, etc., "and appointing an agent for service of process," may carry on business in this state, and "shall enjoy all the rights and privileges, and be subject to all the restrictions and liabilities, of corporations existing under this act." This corporation did not avail itself of the opportunity afforded by this statute, by filing its articles as therein provided. The theory upon which the first assignment of error rests is that the statute (section 4161d6) prohibits the noncomplying foreign corporation from doing business in this state, and that, therefore, all contracts made by it are void, and all business done by it or upon its behalf is illegal; that it could neither acquire nor hold any property in this state, nor could it make a lawful contract of agency. The underlying question is, manifestly, the construction to be placed upon the statute; for, if it does not involve a prohibition of business by the corporation, the whole argument of defendant's counsel upon this branch of the case must fall. That the states have the power to prescribe the terms upon which foreign corporations may carry on business within their respective limits, and to exclude them altogether, is generally admitted; and, to give effect to such laws, they may declare contracts made in contravention of such statutes to be invalid, as a more effective means of accomplishing the purpose of the state. And there are many cases which hold that contracts made by corporations, which are illegal or contrary to the settled policy of the state, are void, and cannot be enforced, though the statute does not in terms so provide. 8 Am. & Eng. Enc. Law, 333, and cases cited in note 1. And in the absence of a provision declaring the contracts void, the courts may refuse to enforce them, when the statutes suspend the doctrine of comity, as was held by this court in two recent cases. Seamans v. Temple Co. (Mich.) 63 N.W. 408; Society v. Lester, Id. 977. But it is the established doctrine that, in the absence of statutes showing a contrary intent or policy, foreign corporations will be permitted to do business, and make contracts, which, under the doctrine of state comity, will be held valid, and enforced by the courts, upon the presumption of acquiescence which will arise from silence upon the subject. This doctrine is elaborately discussed in the case of Bank v. Earle, 13 Pet. 542, and is uniformly recognized as the law. See Thompson v. Waters, 25 Mich. 244. Also, Bank v. Page, 6 Or. 433; In re Comstock, 3 Sawy. 221, Fed. Cas. No. 3,078; Wright v. Lee (S. D.) 51 N.W. 708.

The section in question is one added to the previously existing law providing for the incorporation of manufacturing and mercantile associations. Neither the language of the act, nor its title, appears to have been aimed at the exclusion of foreign companies, or the imposition of conditions upon their doing business, unless they desire the benefits to be derived from the law applicable to domestic corporations of similar character. The language of the section is as follows: "Corporations organized under the laws of any state of the Union, or of any foreign country, either wholly or in part for any of the purposes contemplated by this act, upon recording copies of their charter, or articles of incorporation, or memoranda of association, as provided in section nine of this act, and upon filing in the office of the secretary of state a resolution, as required in general section forty-three hundred and thirty-one of Howell's Annotated Statutes, and appointing an agent for service of process, may, for such purposes, carry on business in this state, and shall enjoy all the rights and privileges, and be subject to all the restrictions and liabilities of corporations existing under this act." In Bank v. Earle, supra, the court implies that, unless a "statute indicates that contracts which derive their validity from comity are repugnant to its policy, or are considered injurious to its interests, the presumption is in favor of the application of the doctrine of comity." See, also, Runyan v. Coster, 14 Pet. 122; Carroll v. City of East St. Louis, 67 Ill. 568; Union v. Yount, 101 U.S. 352; People v. Howard, 50 Mich. 239, 15 N.W. 101; Stevens v. Pratt, 101 Ill. 206; Assurance Co. v. Scammon, 102 Ill. 46; Insurance Co. v. Harvey, 11 Wis. 397; Insurance Co. v. Walsh, 18 Mo. 229; Clark v. Middleton, 19 Mo. 53. Even where the law imposes a penalty, some of the courts hold that a prohibition is not necessarily implied. For an extended discussion of this question, see Wright v. Lee (S. D.) 51 N.W. 711. We are of the opinion that this statute was not intended to prohibit foreign corporations from doing business within the state until they should comply with its terms, as the expression of such intention is neither "clear nor positive." 8 Am. & Eng. Enc. Law, 335. But, if it should be held that the act under consideration was prohibitive, and that the company could not make or enforce contracts, it would not follow that this defendant could not be guilty of embezzlement. In fact, he was the agent of the company, whether it was a lawful enterprise or engagement, or not. By virtue of his relation, he became possessed of property which was not his, and which belonged to the company if to anybody. He acted for, and permitted himself to be held out as the agent of, the company, and received money from various persons who were willing to pay. He was a de facto servant, and it is unnecessary that his relation should have grown out of a lawful contract of agency. It was enough if he acted, and was permitted to act, as such. 2 Bish. Cr. Law (3d Ed.) �� 339, 340. See, also, Com. v. Smith, 129 Mass. 111; Com v. Cooper, 130 Mass. 288; State v. Tumey, 81 Ind. 564; Ex parte Ricord, 11 Nev. 292; State v. Spaulding, 24 Kan. 1; State v. O'Brien (Tenn.) 28 S.W. 311; 1 Whart. Cr. Law, � 1028, citing Reg. v. Orman, 36 Eng. Law & Eq. 611; Rex v. Beacall, 1 Car. & P. 454; Campbell v. State, 35 Ohio St. 70; Willson v. Owen, 30 Mich. 475.

2. The allegation of time. The information charged the offense as occurring "between the 1st day of July, 1893, and the 31st day of December, in A. D. 1893." This was not the technical allegation of a day certain, and it is urged that it is fatal, though counsel admit that evidence of any embezzlement within six months after the date named might lawfully be shown, under 2 How. Ann. St. � 9421 which provides: "In any prosecution for the offense of embezzling the money, bank notes, checks, bills of exchange, or other securities for money, of any person, by a clerk, agent or servant of such person, it shall be sufficient to allege generally in the indictment, an embezzlement of money to a certain amount, without specifying any particulars of such embezzlement, and on the trial, evidence may be given of any such embezzlement committed within six months next after the time stated in the indictment; and it shall be sufficient to maintain the charge in the indictment, and shall not be deemed a variance, if it shall be proved that any money, bank note, check, draft, bill of exchange, or other security for money, of such person, of whatever amount, was fraudulently embezzled by such clerk, agent or servant within the said period of six...