Underwood Typewriter Co. v. Piggott

• Decision Date: 20 November 1906
• Citation: 55 S.E. 664,60 W.Va. 532
• Parties: UNDERWOOD TYPEWRITER CO. v. PIGGOTT.
• Court: West Virginia Supreme Court

55 S.E. 664

60 W.Va. 532

UNDERWOOD TYPEWRITER CO. v. PIGGOTT.

Supreme Court of Appeals of West Virginia.

November 20, 1906

Submitted June 13, 1906.

Syllabus by the Court.

A judgment improperly abating an action upon a ground which precludes further proceedings is appealable.

A judgment, founded upon an erroneous construction of a statute, which makes its enforcement conflict with constitutional guaranties, involves the constitutionality of a law, and is, therefore, reviewable without regard to the amount in controversy.

Whenever an act of the Legislature can be so construed and applied as to avoid conflict with a constitutional provision, and give it the force of law, such construction will be adopted.

A foreign corporation, which sells and delivers goods merchandise, machinery, or other articles of trade and commerce in this state upon orders taken therefor by its agents and traveling salesmen, and forwarded to it, and not otherwise, and transacts no other business in the state, does not transact or carry on business in this state, within the meaning of section 30 of chapter 54 of the Code, as amended by section 31, c. 35, p. 108, of Acts 1901 [Code 1906, § 2322], and is not required to comply with the provisions of said statute, nor denied by it the power to bring and maintain suits and actions for the enforcement of such contracts.

Error to Circuit Court, Wood County.

Action by the Underwood Typewriter Company against R. H. Piggott. Judgment for defendant, and plaintiff brings error. Reversed and remanded.

J Cameron McCluer, for plaintiff in error.

Caldwell & Watson, J. T. Piggott, J. D. Cutlip, and R. H. Piggott, for defendant in error.

POFFENBARGER J.

The Underwood Typewriter Company complains, on a writ of error of a judgment of the circuit court of Wood county abating its action and refusing to allow it to prosecute the same, because it has not complied with the provisions of section 30 of chapter 54 of the Code, as amended by section 31, c. 35, p. 100, of Acts 1901 [Code 1906, § 2322], requiring foreign corporations, to which class said plaintiff in error belongs, to file with the Secretary of State a copy of its articles of association, and obtain from that officer a certificate showing the fact, and record the same in the clerk's office of the county court of the county, or one of the counties, in which its business is conducted, as a condition precedent to the right to do business in this state.

The action was brought before a justice of the peace of said county against R. H. Piggott for the recovery of the possession of one typewriter, of the value of $100, which said company had sold to the defendant under a contract by which the title thereto was reserved until full payment of the purchase price should be made, and resulted in a judgment for the defendant. After an unsuccessful effort to have the judgment set aside and a new trial granted, in the course of which a special plea was filed, denying the right of the plaintiff to bring or maintain any action in this state, because of its failure to comply with said statute, was filed in resistance of the motion to set aside the judgment, an appeal was taken to the circuit court. There a motion to strike out the special plea was made and overruled, and thereupon the plaintiff filed a special replication to it, showing that it maintains no place of business in this state, and transacts no business here, other than the selling of its machines by sample through agents and representatives, denying that the statute relied upon has any application to it, and insisting that, if it does have such application, it is void, because in violation of the federal interstate commerce law. The hearing on the plea resulted in a judgment that the action abate and stand abated, until the plaintiff shall have complied with the provisions of said statute.

Two questions relating to appellate jurisdiction are presented, the first of which is whether there is a final judgment, and the second whether the constitutionality of a law is involved, since the amount in controversy does not appear to be more than $100.

Though the judgment is not final in the sense of disposing of the case on its merits, it is nevertheless final in that it prevents a recovery in the present status of the plaintiff, and is tantamount to a dismissal of its action. This brings the case within the decision in Carson v. Insurance Co., 41 W.Va. 136, 23 S.E. 552. The plaintiff had brought his action of assumpsit in one county on a policy of insurance, and it appeared on the face of the declaration that the loss for which recovery was sought had occurred in another county, and the circuit court, being of opinion that the action should have been brought in the county in which the loss occurred, dismissed it upon demurrer without prejudice. Although this was merely an abatement of the action, this court allowed a writ of error, reversed the judgment, and remanded the cause.

The other question is not entirely free from difficulty. If the circuit court has correctly interpreted the statute, it is violative of the federal Constitution, as will be hereinafter shown; but it will also appear that, upon a proper construction, the statute does not interfere with the right of the plaintiff to sue, and is not invalid. But for the erroneous decision of the circuit court, no constitutional question could possibly arise. The appellate jurisdiction, however, does not seem to be limited to those decisions in which valid laws are held unconstitutional. It extends to cases involving the constitutionality of a law. Wherever the question of constitutionality arises in a case, and enters into the decision, whether that decision upholds or overthrows the statute, the constitutionality of a law must be involved. In most instances it appears in this way. To say that a decision which gives to a statute an effect beyond what the Legislature intended it to have and enforces it in such manner and to such extent as to work an invasion of a constitutional right, is to go a step further, but since the court has power and jurisdiction to interpret laws, and though it erroneously so construes the statute as to produce this result, it nevertheless declares the law of the particular case, and works an injury as serious as if it had held a valid law unconstitutional, or an invalid law free from objection on constitutional grounds. Such decisions thus seem clearly to involve constitutional questions, and this view seems to harmonize with that presented in Elliott on Appellate Procedure, § 33, where it is said: "It must fairly appear that a constitutional question is in the record, and that the party who assumes to make the question has a right to do so, but these things need not conclusively or even decisively appear; for, if it appears, from an inspection of the record, that there is reason for inferring or adjudging that the record does present a constitutional question, jurisdiction is in the Supreme Court. If it were held otherwise, it might deprive a party of the right to a decision by the Supreme Court, since it would leave the question whether the validity of a statute is involved to the Appellate Court, and its decision would shut off the right of a party to invoke the judgment of the tribunal to which jurisdiction over such questions is committed."

In seeking the true interpretation of the statute in question, rules of statutory construction must be observed, one of which is that a statute will never be so construed as to make it conflict with any constitutional provision, if the terms used by the Legislature are susceptible of a meaning, and reconcilable to a view, that are consistent with the organic law. That a certain construction or interpretation of a statute will make its operation and effect violative of a constitutional right, or put it under the ban of a constitutional inhibition, is an admonition to the court that the construction is wrong, if the statute is susceptible of a construction that will make it valid. Slack v. Jacob, 8 W. Va. 612; State v. Workman, 35 W.Va. 367, 14 S.E. 9, 14 L.R.A. 600; Bridge v. Kanawha Co., 41 W.Va. 658, 24 S.E. 1002; Roby v. Sheppard, 42 W.Va. 286, 26 S.E. 278. This rule is founded upon two presumptions. One is that the Legislature intended the statute to be operative and effective. This implies the other, that the Legislature knows the limitations upon its power, imposed by the organic law.

The statute under consideration here extends to foreign corporations the privilege of transacting business in this state, upon complying with certain conditions therein prescribed, and imposes a penalty for doing business in the state without having first complied with them. It was construed by this court, before it was amended, by the act of 1901, in Toledo Tie & L. Co. v. Thomas, 33 W.Va 566, 11 S.E. 37, 25 Am.St.Rep. 925, and held not to have the effect of invalidating contracts made in this state by foreign corporations which had not complied with the requirements of the statute. For reasons which will be hereinafter stated, such corporations must have had the right to sue in respect to such contracts, for a remedy for the enforcement of a contract is an essential part of the contract itself. The decision referred to above recognized such right to sue and enforced it. Regarding the amendment made by section 31, c. 35, p. 108, of Acts 1901 [Code 1906, § 2322], as having wrought a material change in the section, the circuit court has adopted the view that it now forbids the...