The State v. The Pioneer Creamery Company, a Corp.

• Decision Date: 07 November 1922
• Citation: 245 S.W. 361,211 Mo.App. 116
• Parties: THE STATE OF MISSOURI, to the Use of Monroe County, Respondent, v. THE PIONEER CREAMERY COMPANY, a Corporation, Appellant
• Court: Missouri Court of Appeals

245 S.W. 361

211 Mo.App. 116

THE STATE OF MISSOURI, to the Use of Monroe County, Respondent, v. THE PIONEER CREAMERY COMPANY, a Corporation, Appellant

Court of Appeals of Missouri, St. Louis

November 7, 1922

Appeal from the Circuit Court of Monroe County.--Hon. Charles T Hays, Judge.

AFFIRMED.

Judgment affirmed.

Wilson & Schmiedeskamp and J. H. Whitecotton for appellant.

James J. Browning for respondent.

NIPPER C. Allen, P. J., Becker and Daues, JJ., concur.

OPINION

NIPPER, C.

This action was brought by the Prosecuting Attorney of Monroe County against the defendant, an Illinois corporation, in which it is alleged that the defendant failed to comply with the laws of this State in order that it might become domesticated. Defendant demurred to the petition, which demurrer was overruled, after which defendant filed its answer, and the case was tried before the court without a jury, which court rendered judgment for plaintiff by decreeing that plaintiff have and recover of and from defendant a fine in the sum of $ 1000. From this judgment defendant appeals.

The case was tried upon the following agreed statement of facts:

"1. That the defendant was at the time of the acts complained of and now is, a corporation for pecuniary profit organized under the laws of the State of Illinois and was neither a railroad nor insurance company.

"2. That the defendant at the time of the acts complained of had not complied with the requirements of section 3039 of the Revised Statutes of Missouri or received license or certificate from the Secretary of State authorizing it to do business in the State of Missouri, but since that time has complied with such section and received such license or certificate from the Secretary of State of Missouri authorizing it to do business in the State of Missouri.

"3. That the acts complained of are as follows: That the defendant rented a store room at Madison in the County of Monroe and State of Missouri, where a sign, 'The Pioneer Creamery Co.,' was put up by the defendant, store room was in charge of one Paris Kellum, who was in the employ of the defendant as a cream buyer of the defendant and bought for the defendant at Madison, Mo., cream, which he shipped to the defendant at the city of Quincy, in the State of Illinois, and was there in said city of Quincy, manufactured by the defendant into butter at its creamery there located and that said Kellum was not a drummer or a traveling salesman.

"4. That the defendant at the time of the acts complained of and theretofore was in the business of manufacturing butter outside of the State of Missouri at its creamery in the City of Quincy, in the State of Illinois, and of buying cream in the State of Illinois and elsewhere and manufacturing butter from said cream outside the State of Missouri, at its said creamery in said City of Quincy, from and at which creamery in said City of Quincy the defendant sold and filled and shipped orders for its product received from its customers living in Illinois and elsewhere, and that all the cream purchased in the State of Missouri was purchased for the purpose of being and was manufactured into butter at its creamery in the City of Quincy, Illinois.

"5. That the only acts of the defendant complained of are as above set forth in items 2 and 3 of this stipulation and that the defendant had no creamery or manufacturing plant in the State of Missouri, and neither manufactured nor sold nor filled orders for any of its commodities or products within the State of Missouri."

The defendant urges two grounds for reversal in this court: First, that the prosecuting attorney had no authority to maintain this suit; second, that the acts of defendant in buying cream in Monroe County, Missouri, were merely incidental to its traffic in interstate commerce, and that such acts did not constitute "doing business" in the sense that it would be required to comply with the law requiring foreign corporations to become domesticated.

Defendant contends that the provisions of section 9825, Revised Statutes 1919, the same being part of the Act of May 30, 1919, take away from the prosecuting attorneys the rights and duties conferred upon them by virtue of section 9793.

Section 9825 makes it the duty of the Secretary of State, when he believes that any foreign corporation is transacting business in this State in violation of the law with respect to corporations, to investigate, and, if in his judgment there is probable cause to believe that any of the fines, forfeitures, and penalties provided in any law of the State for such violation can be recovered, he shall submit the result of his investigation to the attorney-general of the State, and it shall be the duty of the attorney-general to proceed against such corporation "as provided by law."

Section 9793, which has been upon the statute books of this State since 1891, prescribes the penalty for the failure of corporations doing business in this State to comply with certain requirements imposed upon them by law, and makes it the duty of the Secretary of State to report to the prosecuting attorney of the county in which the business of such corporation is located; and requires the prosecuting attorneys to institute proceedings to recover the fine therein provided for.

Section 9793, supra, has not been specifically repealed by any act of our Legislature, nor do we think it can be said that it has been repealed by implication.

Section 736, Revised Statutes 1919, which was section 1007, Revised Statutes 1909, provides that the prosecuting attorneys shall commence and prosecute all civil and criminal actions in their respective counties in which the county or State may be concerned, defend all suits against the State or county, and prosecute forfeited recognizances and actions for the recovery of debts, fines, penalties, and forfeitures accruing to the State or county. This has, in substance, been the policy of this State since 1825. In 1872, the Legislature abolished the office of Circuit Attorney, and provided for the election in each county of a Prosecuting Attorney.

Section 696, Revised Statutes 1919, makes it the duty of the attorney-general to institute in the name and on behalf of the State, all civil suits and other proceedings at law or in equity necessary to protect the rights and interests of the State, and to enforce all claims against any and all persons or corporations in whatever court such action may be necessary. This, in substance, has been the law since 1868. The history of this legislation, as well as a discussion of the powers and duties of the prosecuting attorneys in this State, may be found in State ex rel. v. Lamb, 237 Mo. 437, 141 S.W. 665, wherein it is said, l. c. 451:

"Whatever may be the proper construction of Section 970 as to the duties of the Attorney-General, it is clear that during all the time since the early territorial days the local State's attorney has been the proper legal representative of the State to institute proceedings in behalf of the State and in no respect has that power been curtailed by legislation. In a strict historical sense, the prosecuting attorney represents the State and exercises powers...