Utley v. Clark-Gardner Lode Min. Co.

• Decision Date: 01 December 1878
• Parties: UTLEY et al. v. THE CLARK-GARDNER LODE MINING CO.
• Court: Colorado Supreme Court

4 Colo. 369

UTLEY et al. v. THE CLARK-GARDNER LODE MINING CO.

Supreme Court of Colorado

December, 1878

Appeal from District Court of Gilpin County.

THE case is stated in the opinion.

Messrs BELFORD & REED, for plaintiffs in error.

Mr. L C. ROCKWELL and Mr. H. B. MORSE, for defendants in error.

ELBERT J.

August 25, 1877, the Clark-Gardner Mining Company of New York filed a declaration in trespass containing two counts. The first count charges the breaking and entering upon claims Nos. 7, 8 and 9 of the Gardner lode and breaking ore, etc. The second count is de bonis asportatis.

The defendants filed the following special plea: 'And the said Alvin H. Utley and John Burkhardt, by Belford and Reed their attorneys, come and defend the wrong and injury, when etc., and pray judgment of said writ, because they say that the said Clark-Gardner Lode Mining Company is now, and was at the commencement of this suit, a foreign corporation, and that said Clark-Gardner Lode Mining Company at the time of the commencement of this suit had not filed in the office of the secretary of State of the State of Colorado, and in the office of the clerk and recorder of the county in which its business is carried on, a certificate signed by the president and secretary of such corporation, duly acknowledged and designating the principal place where the business of said corporation shall be carried on in this State, and designating an authorized agent or agents in this State residing at its principal place of business, upon whom process may be served, and did not at the time this suit was commenced have any known place of business and an authorized agent or agents in the same upon whom process might be served; and this the said defendants are ready to verify, wherefore they pray judgment of the said writ in this suit, and that the same may be quashed,' etc.

To this plea, the plaintiff below demurred, the demurrer was sustained, and the defendants stood by their plea.

Section 213, General Laws, p. 151, upon which the plea is based, is as follows:

'Foreign corporations shall, before they are authorized or permitted to do any business in this State, make and file a certificate signed by the president and secretary of such corporation, duly acknowledged, with the secretary of State, and in the office of the recorder of deeds of the county in which such business is carried on, designating the principal place where the business of such corporation shall be carried on in this State, and an authorized agent or agents in this State residing at its principal place of business upon whom process may be served.' * * *

This provision is intended to enforce section 10, article 15 of the Constitution, which declares: 'No foreign corporation shall do any business in this State without having one or more known places of business, and an authorized agent or agents in the same, upon whom process may be served.' State legislation of this character is held not to be in conflict with that clause of the Constitution of the United States which declares 'the citizens of each State shall be entitled to all the privileges and immunities of citizens in the several States;' nor with the clause which declares that Congress shall have power 'to regulate commerce with foreign nations and among the several States.'

A corporation is the creature of local laws; it has no existence or absolute right of recognition outside the limits of the sovereignty which created it.

For the recognition of its existence and the enforcement of its contracts without such limits, it is dependent upon the comity of the several States, and this comity may be extended upon such terms and under such limitations as each State may think wise to prescribe. Augusta v. Earle, 13 Peters, 538; Paul v. Virginia, 8 Wall. 168.

The Constitution and statutory provisions cited, embody the policy of our State toward foreign corporations. The statute prescribes the terms and conditions upon which they may transact business within the State upon an equal footing with domestic corporations. They shall designate, in a manner prescribed, their principal place of business and an agent or agents residing thereat, upon whom process may be served. In substance, they shall put themselves in a position to be amenable to the process of the State courts. Similar statutes exist in most of the States of the Union, the object being to protect the citizens of the State, dealing with foreign corporations, from the hardship of pursuing their rights in distant jurisdictions.

The terms prescribed cannot be justly characterized as harsh or onerous; on the other hand, they are simple and equitable, and upon compliance the doors are thrown wide open to foreign capital, represented by foreign corporations, to compete in the various industries and businesses of the State, upon an equal footing with domestic corporations.

The statute is prohibitory in its terms. They shall file the designated certificate 'before they are authorized or permitted to do any business in this State.'

The Oregon statute, substantially like this, is held to be prohibitory. In re...