state, may, perhaps, be put upon a ground other than that such solicitation is an incident of interstate commerce, under the view that such a corporation is not doing business at all, but merely attempting to secure business to be done elsewhere. See annotation in 6 B. R. C. 802.

Very often the courts have construed statutes providing for service upon foreign corporations not to authorize service upon foreign railway companies doing nothing (or little) more than soliciting traffic within the state.

United States. See 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; Allen v. Yellowstone Park Transp. Co. (1907; C. C.) 154 Fed. 504 (foreign corporation operating coach line); McGuire v. Great Northern R. Co. (1907; C. C.) 155 Fed. 230. See also Maxwell v. Atchison, T. & S. F. R. Co. (1888; C. C.) 34 Fed. 286.

Alabama.-See Abraham Bros. v. Southern R. Co. (1906) 149 Ala. 547, 42 So. 837, infra.

Rhode Island.-Berger v. Pennsylvania R. Co. (1906) 27 R. I. 583, 9 L.R.A. (N.S.) 1214, 65 Atl. 261, 8 Ann. Cas. 941.

District of Columbia.-See infra, III. b, Cancelmo v. Seaboard Air Line R. Co. (1926) App. D. C., 12 F. (2d) 166. Minnesota.-North Wisconsin Cattle Co. v. Oregon Short Line R. Co. (1908) 105 Minn. 198, 117 N. W. 391. New York.-Josephy v. Kansas City, M. & O. R. Co. (1917) 180 App. Div. 313, 167 N. Y. Supp. 273. See too, Doty v. Michigan C. R. Co. (1859) 8 Abb. Pr. 427. Also see Tuchband v. Chicago & A. R. Co. (1889) 115 N. Y. 437, 22 N. E. 360, which is frequently cited in the cases in this annotation, though not within the scope thereof. Oklahoma.-Trumble Gas Trap Co. v. Chicago, R. I. & P. R. Co. (1925) 115 Okla. 18, 239 Pac. 668.

Tennessee.-Atlantic Coast Line R. Co. v. Richardson (1908) 121 Tenn. 448, 117 S. W. 496.

Washington.-Rich v. Chicago, B. & Q. R. Co. (1904) 34 Wash. 14, 74 Pac. 1008; Arrow Lumber & Shingle Co. v. Union P. R. Co. (1909) 53 Wash. 629, 102 Pac. 650.

West Virginia. See Pennsylvania R. Co. v. Rogers (1903) 52 W. Va. 450, 62 L.R.A. 178, 44 S. E. 300.

Sometimes this construction is given the statutes to make them provide the due process required by law. See also the cases stated infra, III. b.

A foreign railway corporation which constituted persons its agents in Alabama, with no power or authority to bind it, but simply to solicit traffic for it, was held in Abraham Bros. v. Southern R. Co. (Ala.) supra, not doing business, within a provision of the Alabama Constitution fixing the venue of suit against a foreign corporation in any county where it "does business," by service of process upon an agent anywhere in the state, or within a statutory provision fixing the venue in any county in which it does business by an agent.

Service of process upon a soliciting agent of a foreign railway company which did no other business in the state than solicit business to be carried over its lines without the state was held by a divided court in N. K. Fairbank & Co. v. Cincinnati, N. O. & T. P. R. Co. (Fed.) supra, not effective to confer jurisdiction over the corporation, for the reason that the company was not "found" in the state, within the Illinois statute relating to service of process over foreign corporations. The persons served in this case were employed for "the sole purpose of diverting freight and passengers" to the defendant's railroad, and had no authority to sell tickets or make contracts or rates for the transportation of freight or passengers over the defendant's road; they had desks in an office in Chicago, which was shared with employees of other railroad companies.

The decision in the foregoing case was held controlling upon the court. in Wall v. Chesapeake & O. R. Co. (1899) 37 C. C. A. 129, 95 Fed. 398, a case almost identical on its facts. One member of the court thought the

W. J. Armstrong Co. v. New York C. & H. R. R. Co. (1915) 129 Minn. 104, L.R.A.1916E, 232, 151 N. W. 917, Ann. Cas. 1916E, 335, and other cases infra.

New York. See infra, Rosenberg v. Western Pacific R. Co. (1923) 206 App. Div. 52, 200 N. Y. Supp. 428. See Hewitt v. Canadian P. R. Co. (1924) 124 Misc. 186, 207 N. Y. Supp. 797, order affirmed in (1925) 212 App. Div. 815, 207 N. Y. Supp. 851.

Utah.-Bristol v. Brent (1910) 38 Utah, 58, 110 Pac. 536.

In one case the Federal Supreme Court upheld jurisdiction (under a New York statute) over a foreign railway corporation which had an agency in New York, the usual business of which was to solicit freight and passenger traffic, though occasionally the agency acted as representative in adjusting claims, etc. St. Louis Southwestern R. Co. v. Alexander (U. S.) supra.

Where it was made to appear that the Atlantic Coast Line Railway Company had established in Boston an agency, in charge of a person held out as its "New England agent," who had an office leased by the company and supervised several employees, the business of the agency being "to drum up trade, both freight and passenger," for the company, and who, as incidental to that duty, occasionally sold tickets over the company's lines, but did not, except in a few unusual cases, issue bills of lading for freight, the business done along this line appearing to be quite extensive, the company was held subject to suit in Massachusetts. Walsh v. Atlantic Coast Line R. Co. (1916; D. C.) 256 Fed. 47. This case, which was rested upon the authority of St. Louis Southwestern R. Co. v. Alexander (U. S.) supra, seems distinguishable on its facts from the reported case (THURMAN v. CHICAGO, M. & ST. P. R. Co. ante, 563).

Upon the authority of the Alexander Case (U. S.) supra, the Massachusetts court held a foreign railway company having an office and agency in the state, engaged in soliciting business, giving information, selling tickets, adjusting claims, which agency was advertised as its New England

agent, could be served with process in the state. Reynolds v. Missouri, K. & T. R. Co. (1916) 224 Mass. 379, 113 N. E. 413, affirmed in (1917) 228 Mass. 584, 117 N. E. 913, affirmed upon authority of St. Louis Southwestern R. Co. v. Alexander (1913) 227 U. S. 218, 57 L. ed. 486, 33 Sup. Ct. Rep. 245, Ann. Cas. 1915B, 77, infra, in Missouri, K. & T. R. Co. v. Reynolds (1921) 255 U. S. 565, 65 L. ed. 788, 41 Sup. Ct. Rep. 446. This case was evidently regarded as clearly distinguishable by the court in the reported

case.

The decision of the Federal Supreme Court in St. Louis Southwestern R. Co. v. Alexander (U. S.) supra, in upholding jurisdiction in the absence of a statute concerning solici tation of business, was affirmed in a per curiam opinion in Missouri, K. & T. R. Co. v. Reynolds (U. S.) supra. In a later case which resembled these cases on its facts, although not identical with them, the court pointed out that in those cases the only constitutional objection asserted was violation of the due process clause, hence they were not binding with regard to the commerce clause. Davis v. Farmers Co-op. Equity Co. (1923) 262 U. S. 312, 67 L. ed. 996, 43 Sup. Ct. Rep. 556.

But the cases upholding service of process under the due process clause of the 14th Amendment do not estab lish the proposition that the service will also be upheld in cases where the suit, if allowed, would work an unreasonable burden upon interstate commerce. See infra, III. b, Davis v. Farmers Co-op. Equity Co. (1923) 262 U. S. 312, 67 L. ed. 996, 43 Sup. Ct. Rep. 556.

In Bell v. New Orleans & N. E. R. Co. (1907) 2 Ga. App. 812, 59 S. E. 102, an inferior Georgia court held that service of process on a nopresident corporation may be legally per fected, so as to give jurisdiction to the courts of this state for the rendition of a judgment of at least local efficacy, by handing a copy personally to an agent, designated as a "commercial agent," who maintains an office in this state, furnished him by the defendant

company, wherein he does chiefly correspondence, and who represents the defendant in soliciting freight and other business, but who has no authority to make contracts, sell tickets, or to collect money for the defendant. The decision of the court of appeals in this case was overruled by the supreme court in 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. See final disposition of the case in De Bow v. Vicksburg, S. & P. R. Co. (1919) 23 Ga. App. 715, 99 S. E. 317.

The fact that the Western Pacific Railway Company had in New York city an assistant secretary and treasurer whose name was published in the "Official Guide of the Railways," with a reference to his office address in the city, taken in connection with the facts that the company's executive committee, made up of members of its board of directors, the majority of whom resided in the state, transacted its business in New York to a not inconsiderable extent, and that its securities were bought and sold, loaned in its behalf, made and repaid in the city, and passenger and freight business solicited in its behalf by a duly authorized general agent located in the city, was held to justify the conclusion that the company was doing business within the state in a substantial way so as to render service of process upon the assistant secretary and treasurer at his office effective to confer jurisdiction. Rothenberg v. Western Pacific R. Co. (1923) 206 App. Div. 52, 200 N. Y. Supp. 428.

In Wendell v. Holland America Line (1913) 40 App. D. C. 1, it was held that a foreign transportation company was doing business in the District of Columbia by having an agency there soliciting traffic and making contract therefor, over its lines entirely without the District, contracts for passage and freight being entered into and closed within the District. In this case the court distinguished Green v. Chicago, B. & Q. R. Co. (U. S.) infra, III. b, upon the ground that in the case at bar the business done was of

On of the closest cases is Bristol v. Brent (1910) 38 Utah, 58, 110 Pac. 536, wherein the court held that a railway corporation not owning or oper ating any railroad within the state, but having therein a commercial agent who maintained an office for the purpose of soliciting freight and looking after passenger business, and who, while neither issuing bills of lading nor selling passage tickets, obtained from prospective shippers what were termed "routing orders," which were signed by shippers and, by the agent, sent to the respective offices of the railway company so that the freight might be routed over its line, was, under a Utah statute which provides that a foreign corporation may be served with legal process within the state if it "has or advertises or holds itself out as having an office or place of business in this state," so as to be subject to garnishment there. The opinion contains an enlightening review of the authorities.

Jurisdiction was upheld in State ex rel. Pennsylvania R. Co. v. Circuit Ct. (1922) 178 Wis. 648, 190 N. W. 366, the following facts appearing: The person served had the title of "district freight representative;" had an office, with the rent paid by the company, and "Pennsylvania System" appearing on the door of the office, which is a general term applied to the Pennsylvania Railroad Company; "Pennsylvania System" appeared in the telephone and city directories of Milwaukee, and underneath appeared the name of the party served, with the title "District Freight Representative;" the representative solicited freight in Wisconsin and Northern Michigan for transportation over the company's lines; he issued exchange bills of lading to shippers, signed said bills of lading as "agent," and delivered the same to shippers, and issued export bills of lading to shippers for

shipments made over the company's line; he solicited the freight shipment from the plaintiff in the case below; he made monthly reports to the company. The company also had a "traveling representative" in Wisconsin, who solicited freight outside the city of Milwaukee. It also had a "district passenger representative," who had an office with the agent served, and who performed similar duties with reference to passengers routed over the company's road. The company owned the office furniture wherein its representatives looked after its busi

ness.

Where several foreign railway companies, while having no line in Minnesota, entered into an arrangement by which they adopted the name "Blue Ridge Despatch," under which they established within the state an agency in charge of an agent, who had authority to solicit business for shipment over its lines, and, in pursuance of such authority, the agent received money from shippers in payment for transporting goods over its lines, issued bills of lading, and designated the point of delivery to the initial carrier in Minneapolis, it was held, in an action to recover damages brought by a shipper whose goods were received by the Blue Ridge Despatch at Minneapolis for through shipment, that service of process upon the agent at Minneapolis was service upon the constituent railroad corporations. Archer-Daniels Linseed Co. v. Blue Ridge Despatch (1911) 113 Minn. 367, 129 N. W. 765. Several cases cited in III. b, infra, were distinguished in so holding. In the course of the opinion of the court, per Lewis, J., this statement is found: "It has become a settled principle that, where the business of an agent is merely to solicit business or to advertise the company, such acts of solicitation do not constitute 'doing business.' But it is quite a different thing to open an office and induce prospective shippers to transact business with the company through such office, which receives money from the shipper, issues bills of lading, designates the route, and causes the goods to be delivered to an

initial carrier designated by him. This is the transaction of business within the state, at least so far as it may concern the shippers."

In 1913 the Minnesota legislature enacted a process statute providing as follows: "Any foreign corporation having an agent in this state for the solicitation of freight and passenger traffic or either thereof over its lines outside of this state, may be served with summons by delivering a copy thereof to such agent." Laws 1913, chap. 218, p. 274. Obviously, this statute directly covers the point under annotation in terms, and in cases falling within the scope of the annotation the only question in respect of jurisdiction acquired through service in the manner provided was as to the constitutionality of the statute as applied to various cases.

It was first contended that this statute was unconstitutional in W. J. Armstrong Co. v. New York C. & H. R. R. Co. (1915) 129 Minn. 104, L.R.A. 1916E, 232, 151 N. W. 917, Ann. Cas. 1916E, 335, but, after a discerning scrutiny of the cases decided by the Federal Supreme Court, the Minnesota court upheld the statute. Jurisdiction was upheld in this case through service of summons upon a soliciting freight agent employed by the defendant railway company, which had no lines in Minnesota, but, in conjunction with other foreign railway companies, maintained several offices in the state through which the soliciting manager solicited freight traffic throughout the state, the action being one for damage to goods shipped from a point within Minnesota to New York city, the shipment having been solicited by one of the local agencies. The court having, in the first place, held that the agent served bore a relationship to the defendant company which rendered him an agent capable of receiving process, turning to the question of what constitutes "doing business" withi: the requirement of the 14th Amendment, said: "As to the nature of the business to be transacted, 'in a general way it may be said that the business must be such in character and extent as to warrant

the inference that the corporation has subjected itself to the jurisdiction and laws' of the state in which the service is made. St. Louis Southwestern R. Co. v. Alexander (1913) 227 U. S. 218, 227, 57 L. ed. 486, 489, 33 Sup. Ct. Rep. 245, Ann. Cas. 1915B, 77. The fact that the business done is interstate in its character does not in any manner affect the case. International Harvester Co. v. Kentucky (1914) 234 U. S. 579, 588, 58 L. ed. 1479, 1483, 34 Sup. Ct. Rep. 944. After all it is a question whether the requirement that the corporation shall be submitted to the jurisdiction of a state court upon service of process on the agent designated by the statute constitutes due process of law. . . . It is reasonable that a foreign corporation keeping and maintaining agents in this state for procuring business for its benefit and profit should answer in this forum to a citizen of this state for a breach of contract or duty arising out of business so procured, and that agents engaged in procuring such business should be deemed the representatives of the corporation for the purpose of bringing it into court as well. Defendant relies upon the case of Green v. Chicago, B. & Q. R. Co. (1907) 205 U. S. 530, 51 L. ed. 916, 27 Sup. Ct. Rep. 595. It must be conceded that the facts in that case were much like those in the case at bar. The court held that doing business which was 'nothing more than solicitation' does not constitute 'doing business' so as to bring the defendant within the Federal district so that process of the United States courts of that district can be served upon it. However, in the Green Case the Roller Case [Denver & R. G. R. Co. v. Roller (1900) 49 L.R.A. 77, 41 C. C. A. 22, 100 Fed. 738] is cited, and it is distinguished, but in no sense discredited or overruled. Speaking of the Roller Case the court said (205 U. S. 533): "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 same observation applies to this case, and, whatever may be said of the similarity between the agency in

this case and that in the Green Case we feel warranted in accepting the distinction made in the Green Case and in following the Roller Case, the authority of which is not questioned. The distinction is also recognized in other cases, that 'the act of Congress prescribing the place where a person may be sued is not one affecting the general jurisdiction of the courts.' Ex parte Schollenberger (1878) 96 U. S. 369, 378, 24 L. ed. 853, 855."

Regarding the validity of the statute as depending solely upon the question whether it afforded due process of law, the statute was also upheld in several later cases, and was construed to extend both to causes of action arising within and without the state, and to authorize service in the manner provided where the plaintiff was either a resident or a nonresident of the state. Lagergren v. Pennsylvania R. Co. (1915). 130 Minn. 35, 152 N. W. 1102; Rishmiller v. Denver & R. G. R. Co. (1916) 134 Minn. 261, 159 N. W. 272 (cause of action arising without the state; reconsidering constitutionality); Merchants Elevator Co. v. Chesapeake & O. R. Co. (1920) 147 Minn. 188, 179 N. W. 734; Callaghan v. Union P. R. Co. (1921) 148 Minn. 482, 182 N. W. 1004; Farmers Co-op. Equity Co. v. Payne (1921) 150 Minn. 534, 186 N. W. 130, reversed in (1923) 262 U. S. 312, 67 L. ed. 996, 43 Sup. Ct. Rep. 556; Robinson v. Oregon Short Line R. Co. (1922) 151 Minn. 451, 187 N. W. 415; Thompson v. Louisville & N. R. Co. (1922) 153 Minn. 440, 190 N. W. 797.

The Minnesota cases construing the statute quoted above were overruled in Davis v. Farmers Co-op. Equity Co. (1923) 262 U. S. 312, 67 L. ed. 996, 43 Sup. Ct. Rep. 556, infra, III. b, at least in so far as it had been held to have operation upon foreign railroads merely soliciting business for transportation over their lines in other states, in favor of nonresidents of the state, as imposing an unreasonable burden upon interstate commerce violative of the commerce clause of the Federal Constitution; and, after the efficacy of the Minnesota statute was so far impaired by the decision of the Federal