State ex rel. Eaton v. Hirst, 2047

• Decision Date: 25 May 1938
• Docket Number: 2047
• Citation: 53 Wyo. 163,79 P.2d 489
• Parties: STATE EX REL. EATON v. HIRST, COUNTY TREASURER (OMAHA NATIONAL BANK, ET AL., INTERVENERS)
• Court: Wyoming Supreme Court

79 P.2d 489

53 Wyo. 163

STATE EX REL. EATON v. HIRST, COUNTY TREASURER (OMAHA NATIONAL BANK, ET AL., INTERVENERS)

No. 2047

Supreme Court of Wyoming

May 25, 1938

APPEAL from the District Court, Laramie County; V. J. TIDBALL Judge.

Application by the State, on the relation of Irene P. Eaton, for a peremptory write of mandamus directed to Edward W. Hirst substituted for Ira L. Hanna, as County Treasurer of Laramie County, requiring him to issue a tax deed for certain realty wherein the Omaha National Bank, trustee, and others intervened. From a judgment denying her application, relator appeals.

Affirmed.

For the plaintiff and appellant, there was a brief and oral argument by William O. Wilson of Cheyenne.

The Omaha National Bank in its individual capacity and as trustee has been transacting business in the State of Wyoming within the meaning of Article 10, Section 5 of the Wyoming Constitution and of Sections 28-141 and 201, R. S. 1931. It has so acted as a hired trustee for profit and for a stipulated compensation. The evidence in this case has clearly established that fact. Construction Company v. Canal Company, 31 Wyo. 191; 9 Fletcher Corp., Sec. 5942; Jones on Mortgages, Vol. 1, Sec. 134A; Chattanooga v. Denson, 189 U.S. 408. The following authorities define what constitutes doing business or transacting business within the state. 14A C. J. 1270; Fuller v. Allen (Okla.) 148 P. 1008; Wilson v. Bank (Kan.) 95 P. 404; Collieries Co. v. McKeever (N. Y.) 75 N.E. 935; Boise Flying Service v. G. M. A. C., 36 P.2d 813; Donaldson v. Power Co. (Ida.) 162 P. 334; Lowenmeyer v. Lumber Company, 125 N.E. 67; Green v. Kentenia Corp., 194 S.W. 820; Wisconsin Trust Co. v. Munday, 168 N.W. 393; Munday v. Trust Co., 252 U.S. 499. The loaning of money on real estate constitutes doing business in the state. Coburn v. Coke (Ala.) 69 So. 574; People's Assn. v. Markley (Ind.) 60 N.E. 1013; Washington Assn. v. Stanley (Ore.) 63 P. 489; British Co. v. Jones (S. C.) 58 S.E. 417; Hofstater v. Jewell (Ida.) 196 P. 194. Von Baumbach v. Land Co., 242 U.S. 503. Construction of a railroad is doing business in the state. Beale, Conflict of Laws, p. 835. The transaction of insurance business is doing business in the state. Tomson v. Traveling Ass'n., 129 N.W. 529; Mutual Life Co. v. District Court (Colo.) 47 P.2d 401; Mutual Life Co. v. Bailey (Colo.) 64 P.2d 1267; Sasnett v. Ass'n., 90 F. 514 (C. C. A., 8th Circuit). As to mortgage liens, see Christian v. American Freehold Land & Mortgage Co. (Ala.) 7 So. R. 427. The rule in Wyoming was expressed in Gould Land & Cattle Company v. Rocky Mountain Company, 17 Wyo. 507. An attempted redemption by the Omaha National Bank of the lands sold for taxes was an act of doing business in Wyoming. The Omaha National Bank acted as a principal on behalf of itself as trustee and not as agent for the bondholders. United States Trust Co. v. Lee, 73 Ill. 142; Taylor v. Mayo, 110 U.S. 330; Truesdale v. Deposit Company, 65 N.W. 133; Schumann-Heink v. Folsom (Ill.) 159 N.E. 250; Tank Company v. Culbertson, 288 F. 406; Riedell v. Stuart (Omaha) 2 P.2d 929; Glengary Company v. Boehmer (Colo.) 62 P. 839. The Omaha National Bank is a corporation organized under the laws of a jurisdiction other than the State of Wyoming, within the meaning of Section 5 of Article 10 of the Wyoming Constitution and Sections 28-141 and 28-201 of the Wyoming Revised Statutes, and is a foreign corporation. Gould Company v. Telephone Company, supra; Construction Company v. Canal Co., 31 Wyo. 191; Equit. Society v. Thulemeyer, 49 Wyo. 63. The Omaha National Bank cannot be sued in this state. Sec. 94, Title 12 U.S.C. A., Aldridge v. Bank (Ala.) 144 So. 469; Bank v. Products Company, 157 So. 349; Irons v. Bank (Ga.) 165 S.E. 738; Carlin v. Prudential Ins. Co. (Okla.) 52 P.2d 721. The Omaha National Bank is without authority to do business in Wyoming, Railway Co. v. North Dakota, 250 U.S. 13; Regan v. Trust Company, 154 U.S. 413, and is subject to state regulation. Bank v. Missouri, 263 U.S. 640. In Wyoming, it is to be classed as a foreign corporation. 2 Beale, Conflict of Law 735; Daly v. L. I. Co., 64 Ind. 1; Cook v. Bank (N. Y.) 11 A. R. 667; Bolles' Modern Law of Banking, Vol. 1, p. 3. A national bank must exercise its functions within the limit of the home state. Branch v. U.S. 12 U.S. Ct. of Claims 281; Farmers Bank v. Dearing, 91 U.S. 29; St. Louis Bank v. Allen, 2 McCrary 92; Bank v. Nichols, 4 Biss. 315; Bank v. Baack, 8 Blatchf. 137; Bank v. Miller, 15 F. 703; Cooke v. Bank, 50 Barb. 339; Morse on Banks and Banking, 6th Ed., Vol. 2, p. 1803; 7 Michie, Banks and Banking, p. 11; Beckham v. Hague, 60 N.Y.S. 767. A Federal Land Bank is a foreign corporation. Land Bank v. Priddy, 74 S.W.2d 222; National Bank v. Federal Bank, 26 F.2d 884; Railroad Company v. Harris, 12 Wall. 65; In re Jones Estate (Mass.) 143 N.E. 46; 2 Paton's Digest 1232 (1926). Statutes authorizing national banks to act as fiduciaries makes them subject to state laws. Deposit Company v. Trust Company, 164 Miss. 286, 144 So. 700. In Wyoming statute with respect to foreign executors is Section 88-106, R. S. 1931. National banks have no greater authority to act as trustee within the state in which they are located than state banks. First National Bank v. Union Trust Company, 244 U.S. 416; Lynch v. Alworth-Stephens Company, 294 F. 190. The Omaha National Bank, individually and as trustee, and C. B. Atzen did not have the right to intervene in this action. Sec. 89-522, R. S. First National Bank v. Cook, 12 Wyo. 492; Bamforth v.. Ihmsen, 28 Wyo. 282; Neiderjohn v. Thompson, 38 Wyo. 28; State ex rel. v. District Court, 42 Wyo. 214; Steffy, et al. v. Teton Truck Line Co., 44 Wyo. 345; Dutton v. Donahue, 44 Wyo. 52; Rue v. Merrill, 42 Wyo. 497; Oil Company v. Ass'n., 31 Wyo. 433. Bondholders holding under a trust mortgage have no right to maintain actions on the bonds. Trust Company v. Holtsinger (Mass.) 114 N.E. 956. A foreign corporation not qualified cannot maintain an action in South Dakota. Iowa Falls Mfg. Co. v. Farrar (S. D.) 104 N.W. 449; Thompson v. Scroyer, 104 N.W. 854. The Omaha National Bank violated the laws and public policy of the State of Wyoming when it attempted to redeem the property covered by relator's certificates of purchase Nos. 1862 and 1863. Construction Company v. Canal Company, 31 Wyo. 191; Gould Company v. Rocky Mountain Bell Co., 17 Wyo. 507. Defendant County Treasurer violated the laws and public policy of the State of Wyoming when he permitted the Omaha National Bank to redeem the property covered by relator's certificates of purchase Nos. 1862 and 1863. The powers of county officers are limited. Powder River Cattle Co. v. County Commissioners, 3 Wyo. 595; Hyde v. Commissioners, 47 Wyo. 101; State v. Snyder, 29 Wyo. 199. Relator should not be prejudiced in her rights, by the unwarranted and unlawful acts of the County Treasurer. Baker v. Commissioners, 9 Wyo. 51; State ex rel. Irvine v. Brooks, 14 Wyo. 393. The Wyoming statutes relating to foreign corporations are mandatory. 4 Words and Phrases 1089; 6 Words and Phrases 1070, 1074; McDunn v. Roundy (Ia.) 181 N.W. 453. Courts are not concerned with the wisdom of legislature. Gale v. School District, 49 Wyo. 384; District No. 14 v. School District, 67 P.2d 192; Hotel Company v. Board, 39 Wyo. 461; White v. Hinton, 3 Wyo. 754; State v. Mercantile Company, 38 Wyo. 47; Brown v. Clark, 47 Wyo. 216, State ex rel. Murane v. Jack, 71 P.2d 917; Boteler v. Conway, 56 P.2d 587; Franco v. Shipping Corporation, Inc., 272 F. 542; Fuel Company v. Hays, 295 F. 704; Baranov v. Scudder (Cal.) 170 P. 1122; People v. Anderson (Cal.) 214 P. 244; River Lumber Co. v. Ty. Co. (Tenn.) 238 S.W. 867; Lakes v. Goodlos (Ky.) 242 S.W. 632; People v. R. Co. (Ill.) 115 N.E. 217; Decatur v. German, et al. (Ill.) 142 N.E. 252; Ins. Co. v. Raymond, 70 Mich. 485; Guaranty Co. v. Motor Truck Co., 125 A. 585. A summary of the foreign corporation situation is found in Legal Periodical Digest, Sec. 2077, December 1931, page 53. A state must control foreign corporations desiring to do business within the state. Ashley v. Ryan, 153 U.S. 436; Bank v. Parker, 194 P. 661. The purported certificate of redemption issued by the County Treasurer is illegal and void. Black v. Lumber Co., 32 Wyo. 248; Blackwell on Tax Titles, 4th Ed. Chapter XXVII, p. 483; News Company v. Commissioners, 46 P.2d 568. Persons dealing with municipalities are charged with notice of the limitation of their authority. Anadarko Home v. Scarth, 46 P.2d 539; Western Paint Company v. Commissioners (Okla.) 46 P.2d 543; State v. Land Company (Ore.) 129 P. 764; 15 C. J. 553; Hynds v. Kinney, 7 Wyo. 22; 6 R. C. L. 692-707. No one other than the Omaha National Bank has attempted to redeem this property from tax sale, and since the Omaha National Bank has no right to redeem and its attempted redemption is illegal, void and of no effect, the relator is entitled to a tax deed.

For the defendant and respondents and interveners, there was a brief and oral argument by John U. Loomis of Cheyenne, Wyoming, and Arthur R. Wells of Omaha, Nebraska.

The making of loans at its office in Omaha to residents in Wyoming and taking and enforcing security on real and personal property in Wyoming for such loans, does not constitute doing business by the Omaha National Bank in Wyoming, requiring qualification under the State Constitution. Loan Association v. Haley (Ala.) 31 So 88; Trust Co. v. Falls Mfg. Co., 222 F. 694; Ass'n v. Bedford, 88 F. 7; George v. Smith & Sons Co., 250 F. 41; Largilliere Co. v. McConkie (Ida.) 210 P. 207; Martin v. Bankers' Trust Co. (Ariz.) 156 P. 87; Morse v. Holland Trust Co. (Ill.) 56 N.E. 369; Realty Co. v. Cragin, et al. (Fla.) 121 So. 460; Association v. Berlin (Pa.) 50 A. 308, 309. In the case...