As held by the Massachusetts court in the reported case (THURMAN V. CHICAGO, M. & ST. P. R. Co. ante, 563), a foreign railway corporation by merely maintaining an agency in a state for the solicitation of traffic over its lines without the state is not doing business there so as to be subject to service of process.

United States.-Green v. Chicago, B. & Q. R. Co. (1907) 205 U. S. 530, 51 L. ed. 916, 27 Sup. Ct. Rep. 595; Earle v. Chesapeake & O. R. Co. (1904; C. C.) 127 Fed. 235; McGuire v. Great Northern R. Co. (1907; C. C.) 155 Fed. 230; Partola Mfg. Co. v. Norfolk & W. R. Co. (1918; D. C.) 250 Fed. 273; Davis v. Baltimore & O. R. Co. (1919; D. C.) 256 Fed. 407; Graustein v. Rutland R. Co. (1919; D. C.) 256 Fed. 409; Stephan v. Union P. R. Co. (1921; D. C.) 275 Fed. 709; Pratt v. Denver & R. G. W. R. Co. (1922; D. C.) 284 Fed. 1007. See also Goepfert v. Compagnie Generale Transatlantique (1907; C. C.) 156 Fed. 196, infra.

District of Columbia.-Cancelmo v. Seaboard Air Line R. Co. (1926) App. D. C., 12 F. (2d) 166.

Georgia.-Vicksburg, S. & P. R. Co. v. De Bow (1919) 148 Ga. 738, 98 S. E. 381, on subsequent appeal in (1919) 23 Ga. App. 715, 99 S. E. 317.

Illinois. Booz v. Texas & P. R. Co. (1911) 250 Ill. 376, 95 N. E. 460; Marcus v. Nashville, C. & St. L. R. Co. (1912) 174 Ill. App. 242. See also American Hide & Leather Co. V. Southern R. Co. (1923) 310 Ill. 524, 142 N. E. 200.

Kentucky.-Basham v. Missouri P. R. Co. (1924) 201 Ky. 807, 258 S. W. 690.

Massachusetts.-THURMAN V. CHICAGO, M. & ST. P. R. Co. (reported herewith) ante, 563.

Minnesota. See supra, III. a, Archer-Daniels Linseed Co. v. Blue Ridge Despatch (1911) 113 Minn. 367, 129 N. W. 765.

To compel such a corporation to answer in a personal suit instituted in the local courts would be a denial of due process of law. Ibid.

See also Trumble Gas Trap Co. v. Chicago, R. I. & P. R. Co. (1925) 115 Okla. 18, 239 Pac. 668; Arrow Lumber Co. v. Union P. R. Co. (1909) 53 Wash. 627, 102 Pac. 650, and Macario v. Alaska Min. Co. (1917) 96 Wash. 458, L.R.A.1917E, 1152, 165 Pac. 73.

As seen in III. a, supra, however, if the soliciting agency does more than solicit business,-such acts as adjusting claims, issuing bills of lading, and receiving money from shippers or passengers for contracts made by the agency in behalf of the company-the corporation may be held amenable to the jurisdiction of the local courts.

In Green v. Chicago, B. & Q. R. Co. (1907) 205 U. S. 530, 51 L. ed. 916, 27 Sup. Ct. Rep. 595, where the sole question was the sufficiency of process for jurisdiction in the Federal court originally, the following facts were presented: The eastern point of the defendant's line of railroad was at Chicago, whence its tracks extended westward. The business for which it was incorporated was the carriage of freight and passengers and the construction, maintenance, and operation of a railroad for that purpose. As incidental and collateral to that business it was proper, and, according to the business methods generally pursued, probably essential, that freight and passenger traffic should be solicited in other parts of the country than those through which the defendant's tracks ran. For the purpose of conducting this incidental business, the defendant employed one Heller, hired an office for him in Philadelphia, designated him as "district freight and passenger agent," and in many ways advertised to the public these facts. The business of the agent was to solicit and procure passengers and freight to be transported over the defendant's line. For conducting this business several clerks and various

traveling passenger and freight agents were employed, who reported to the agent and acted under his direction. He sold no tickets and received no payments for transportation of freight. When a prospective passenger desired a ticket, and applied to the agent for one, the agent took the applicant's money and procured from one of the railroads running west from Philadelphia a ticket for Chicago and a prepaid order, which gave to the applicant, upon his arrival at Chicago, the right to receive from the Chicago, Burlington, & Quincy Railroad a ticket over that road. Occasionally he sold to railroad employees, who already had tickets over intermediate lines, orders for reduced rates over the defendant's lines. In some cases, for the convenience of shippers who had received bills of lading from the initial line for goods routed over the defendant's lines, he gave in exchange therefor bills of lading over the defendant's line. In these bills of lading it was recited that they should not be in force until the freight had been actually received by the defendant. The validity of the service upon Heller, the court said, depended upon "whether the corporation was doing business in that district in such a manner and to such an extent as to warrant the inference that, through its agents, it was present there." In holding that the corporation was not doing business within the rule stated, the court said: "It is obvious that the defendant was doing there a considerable business of a certain kind, although there was no carriage of freight or passengers. In support of his contention that the defendant was doing business within the district in such a sense that it was liable to service there, the plaintiff cites Denver & R. G. R. Co. v. Roller (1900) 49 L.R.A. 77, 41 C. C. A. 22, 100 Fed. 738, and Tuchband v. Chicago & A. R. Co. (1889) 115 N. Y. 437, 22 N. E. 360. The facts in those cases were similar to those in the present case. But in both cases the action was brought in the state courts, and the question was of the interpretation of a state statute and the jurisdiction of the state

courts. The business shown in this case was, in substance, nothing more than that of solicitation. Without undertaking to formulate any general 1 ale defining what transactions will constitute 'doing business' in the sense that liability to service is incurred, we think that this is not enough to bring the defendant within the district so that process can be served upon it. This view accords with several decisions in the lower Federal courts. Maxwell v. Atchison, T. & S. F. R. Co. (1888; C. C.) 34 Fed. 286; N. K. Fairbank & Co. v. Cincinnati, N. O. & T. P. R. Co. (1892) 4 C. C. A. 403, 9 U. S. App. 212, 54 Fed. 420; Union Associated Press v. TimesStar Co. (1898; C. C.) 84 Fed. 419; Earle v. Chesapeake & O. R. Co. (1904; C. C.) 127 Fed. 235."

For a fuller statement of the facts involved in Green v. Chicago, B. & Q. R. Co. (U. S.) supra, see the opinion in Goepfert v. Compagnie Generale Transatlantique (1907; C. C.) 156 Fed. 196, from which it appears that the activities of the defendant railway company in that case were much more extensive than appears in the condensed opinion of Justice Moody in the Green Case.

While Green v. Chicago, B. & Q. R. Co. (U.S.) supra, was characterized as "an extreme case" by the court in International Harvester Co. v. Kentucky (1914) 234 U. S. 579, 58 L. ed. 1479, 34 Sup. Ct. Rep. 944 (a case not falling within the limited scope of this annotation), it does not appear to have been overruled, and the holding in it was stated by Mr. Justice Brandeis, as if it announced the proper rule, in a comparatively recent case, Philadelphia & R. R. Co. v. McKibbin (1917) 243 U. S. 264, 61 L. ed. 710, 37 Sup. Ct. Rep. 280.

One view which has found expression several times is that the mere solicitation by a railroad of business within a state, unconnected with local performance of contract obligations, does not establish the presence of the corporation within the state to the extent that it may be sued there. Maxwell v. Atchison, T. & S. F. R. Co. and Earle v. Chesapeake & O. R., Co.

(Fed.) supra; Booz v. Texas & P. R. Co. (1911) 250 Ill. 376, 95 N. E. 460; Marcus v. Nashville, C. & St. L. R. Co. (1912) 174 Ill. App. 242; North Wisconsin Cattle Co. v. Oregon Short Line R. Co. (1908) 105 Minn. 198, 117 N. W. 391.

In Maxwell v. Atchison, T. & S. F. R. Co. (Fed.) supra, it was held that the defendant corporation was not "found" within the Federal district of Michigan within the rule that a corporation, to be suable in personam within a state, must be carrying on its business there, where it only had a soliciting agent there, who occupied a desk in the office of a coal company, and whose authority was limited to soliciting business, and who was without any authority to enter into contracts for the company. In this case the court distinguished Block v. Atchison, T. & S. F. R. Co. (1884; C. C.) 21 Fed. 529, supra, II. a, wherein the defendant was the same corporation, saying that in that case the company had an office and an established business agency within the district, and an agent employed for the purpose of furthering the transportation business of the corporation, and in the later case the court pointed out that, by reference to the folders of the company, it appeared that the agents served in the former case were general agents, with authority to make contracts and sell tickets for the company, and not mere solicitors of business, as in the case at bar. The distinction taken in this case seems to rest upon facts not appearing in the report of the distinguished case.

In Berger v. Pennsylvania R. Co. (1906) 27 R. I. 583, 9 L.R.A. (N.S.) 1214, 65 Atl. 261, 8 Ann. Cas. 941, the sole duty of the railroad's agent in Rhode Island was to solicit customers to instruct the carrier who should transport their merchandise to Jersey City, New Jersey, to deliver their consignment there to the defendant for further transportation. The court said: "It cannot be said that a corporation which is merely soliciting contracts to begin and continue entirely out of this state is doing business in the state. If it were so, every

corporation located outside this state which should insert in a Rhode Island newspaper an advertisement of its business would come equally within the purview of the act. It has been repeatedly held that, 'when service is made within the state upon an agent of a foreign corporation, it is essential, in order to support the jurisdiction of the court to render a personal judgment, that it should appear

that the corporation was engaged in business in the state.' . . . The mere solicitation of business by agents of a foreign corporation is not such 'doing business' within the state as to subject the foreign corporation to the jurisdiction of the courts of the state in which the business is solicited. . . . The same rule has been repeatedly applied to railroad corporations having agencies like the one in the case at bar, where the agent has no power to make contracts of any kind, but only the right to solicit business to be done entirely out of the state."

In Berger v. Pennsylvania R. Co. (R. I.) supra, the court cited as sustaining its last statement, the following cases: N. K. Fairbank & Co. v. Cincinnati, N. O. & T. P. R. Co. (1892) 4 C. C. A. 403, 9 U. S. App. 212, 54 Fed. 420; Wall v. Chesapeake & O. R. Co. (1899) 37 C. C. A. 129, 95 Fed. 398.

In the following Federal cases the facts presented were held to resemble more nearly those in the Green Case (1907) 205 U. S. 530, 51 L. ed. 916, 27 Sup. Ct. Rep. 595, supra, than those in St. Louis Southwestern R. Co. v. Alexander (U. S.) supra, III. a: Partola Mfg. Co. v. Norfolk & W. R. Co. (1918; D. C.) 250 Fed. 273; Davis v. Baltimore & O. R. Co. (1919; D. C.) 256 Fed. 407; Graustein v. Rutland R. Co. (1919; D. C.) 256 Fed. 409.

Freight and passenger traffic solicitors of a foreign railway company cannot be served with process in a suit for a personal judgment, where their work of solicitation is the only business done by the company and they have no authority to bind the company upon a contract. Booz v. Texas & P. R. Co. (1911) 250 Ill. 376, 95 N. E. 460; Marcus v. Nashville, C.

& St. L. R. Co. (1912) 174 Ill. App. 242.

In a Georgia case the supreme court of the state said: "While a foreign corporation, with a soliciting agent within the state, may be required to answer here for a breach of contract or duty arising out of business so procured, the mere solicitation of business within the state, 'unaccompanied by a local performance of contract obligations,' is not 'doing business' within the state, so as to bring the corporation within the jurisdiction of the courts of the state. This view is supported by the clear preponderance of judicial authority, state and Federal. 'A railroad company which has no tracks within the district is not doing business therein, in the sense that liability for service is incurred, because it hires an office and employs an agent for the merely incidental business of solicitation of freight and passenger traffic.' Vicksburg, S. & P. R. Co. v. De Bow (1919) 148 Ga. 738, 98 S. E. 381, reversing (1918) 21 Ga. App. 732, 95 S. E. 261, and overruling Bell v. New Orleans & N. E. R. Co. (1907) 2 Ga. App. 812, 59 S. E. 102, stated in III. a, supra. After noticing the holding in a number of cases, the court continued: "Whether the facts of the cases noticed distinguish them from the instant case we do not decide. We think it may be conceded that the facts in the cases noted are similar to the facts in this case. The effort of the resident soliciting agent of the corporation to obtain business within this state to be done elsewhere was a mere incident of the corporation's business, important though it may be; and it cannot be affirmed that merely soliciting business within the state to be done wholly outside of the state is 'doing business' within the state, so as to give the corporation a presence within the state for the purpose of service of process. Before we can yield to the suggestion that the view here taken is a narrow one, which can result only in the denial by this state of the right of the citizen to obtain personal judgments against foreign corporations in cases where resident soliciting agents can here be found,

we must be prepared to accord full faith and credit to like judgments obtained upon such service by a citizen in the courts of another state against a corporation of this state. In determining this question we have, therefore, attempted to keep in view the broad principle of interstate comity. Both judicial decision and legislative act must be assumed to reflect that comity where the question of jurisdiction is involved. For a full discussion of the question involved, see note to Okura & Co. v. Forsbacka Jernverks Aktiebolag, 6 B. R. C. 792."

The work of a traveling passenger agent of a foreign company, residing without the state, whose sole duty is to advertise the merits of his road and induce the traveling public to use it and who has no authority to make any contract for his company, does not bring the company into the state. Basham v. Missouri P. R. Co. (1924) 201 Ky. 807, 258 S. W. 690.

"A railroad company which has no tracks within the district is not doing business therein in the sense that liability for service is incurred, because it hires an office and employs an agent for the merely incidental business of solicitation of freight and passenger traffic." Cancelmo v. Seaboard Air Line R. Co. (1926) — App. D. C. —, 12 F. (2d) 166. In this case the soliciting agents of the company had for sale mileage books good for travel over any railroad of the United States, and they were also authorized to issue special tickets for passage between certain points on the company's lines outside of the District of Columbia; but the court said that such transactions did not take place in the usual course of ticket selling, but they were special and limited in character, and were merely incidental to the business of soliciting traffic. The court said that, when fairly considered, these conditions did not affect the character of the agents as mere solicitors of traffic. Hence service upon the agent was held not effective to confer jurisdiction upon the company under a construction of a provision of the District of Columbia Code conformable to the due process clause of the 14th

Amendment, as applied in Green v. Chicago, B. & Q. R. Co. (1907) 205 U. S. 530, 51 L. ed. 916, 27 Sup. Ct. Rep. 595, supra.

In Pratt v. Denver & R. G. W. R. Co. (1922; D. C.) 284 Fed. 1007, where personal service was made upon the soliciting freight and traffic agent of the defendant railway company in Illinois, the court, in considering whether this was in compliance with the Minnesota statute relating to service outside the state, said that the corporation was not doing business in Illinois.

Since the Federal courts are obliged to pass upon the sufficiency of the service of summons as an independent question in cases originally brought in those courts, in one case the Federal court, while admitting that the service and facts shown would have been held by the state courts in which it was sitting to confer jurisdiction under the state statute, set aside the service upon the showing of the following facts: The defendant railway company had no line of railway in the state and operated no line therein; the cause of action did not arise in the state; the person upon whom the alleged service was made was a soliciting freight and passenger agent, having an office in a city within the state; his duties were to solicit freight and passenger traffic over the lines of the defendant railway company, and, as incidental to such solicitation, he quoted rates established by the Interstate Commerce Commission, and received directions for diverting shipments in transit, and transmitted such directions to officers outside of the state; he collected no freight charges, and issued neither bills of lading nor passenger tickets; upon request he procured passenger tickets involving transportation partly over his company's lines from local ticket offices, turning the money received from the prospective passengers over to the local ticket office issuing the tickets; he was authorized to do no other business than such as mentioned above, and did no other business, and the company transacted no other business in the state, though in the city directory of the city in which

the agency was established there was an advertisement of the company and a reference to its traffic department in the city; there was also in the city telephone directory an advertisement to the same effect, and in the timetable issued by the company there was an advertisement of the agency within the state. Stephan v. Union P. R. Co. (1921; D. C.) 275 Fed. 709. In reaching its conclusion, the court said: "As stated by the supreme court, each case must stand upon its own facts. After consideration of all the facts disclosed by the record in the instant case, I have reached the conclusion that they are more nearly similar to the facts in Green v. Chicago, B. & Q. R. Co. (U. S.) supra, than to the facts disclosed in any of the other cases. As was said by the court in that case: "The business shown in this case was in substance nothing more than that of solicitation.' In my judgment the case is controlled by the decision in the Green Case. It may be urged that the case at bar should be distinguished from the Green Case by reason of the fact that a state statute is one of the elements in the present controversy, and that this element was absent in the Green Case. In my judgment this fact is not sufficient to distinguish it from the decision in that case. West v. Cincinnati, N. O. & T. P. R. Co. (1909; C. C.) 170 Fed. 355."

Upon the authority of Green v. Chicago, B. & Q. R. Co. (U. S.) supra, it was held in Goepfert v. Compagnie Generale Transatlantique (1907; C. C.) 156 Fed. 196, that a French corporation whose business was operating a steamship line between a port in France and New York city was not doing business in Pennsylvania so as to be subject to suit there in the Federal court, merely because it was represented there by a tourist agency which solicited business for it and other transportation lines.

In Goepfert v. Compagnie Generale Transatlantique (Fed.) supra, the Green Case (U. S.) supra, was attempted to be distinguished upon the ground that it involved solely the question of jurisdiction of the Federal