# British-American Portland Cement Co. v. Citizens Gas Co. > Supreme Court of Missouri · February 10, 1914 · 255 Mo. 1 URL: https://www.frixlaw.com/law-library/cases/8018644 ## Case - **Full name:** BRITISH-AMERICAN PORTLAND CEMENT COMPANY v. CITIZENS GAS COMPANY and J. E. CAMPBELL - **Court:** Supreme Court of Missouri - **Decided:** February 10, 1914 - **Citations:** 255 Mo. 1; 164 S.W. 468; 1914 Mo. LEXIS 1 - **Precedential status:** Published - **Opinion:** Dissent by Bro - **Judges:** Bond, Bro, Brown, Faris, Graves, Lamm, Walicer, Walkee, Woodson - **Cited by:** 19 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8018644 ## Opinion text DISSENTING OPINION. BRO'WN, J. Not being able to concur in the majority opinion filed in this cause, I shall state my reasons for dissenting. In order that the views which I shall herein express may be more fully understood, I append a copy of the plaintiffs’ articles of association showing the several purposes for which it was incorporated. Said articles read as follows: First. We, the undersigned, for the purpose of forming a corporation under the laws of the State of West Virginia, hereby agree to become a corporation by the name of Oklahoma Portland Cement Company. Second. The principal place of business of said corporation shall be located at Nwnbcr 1006 and 1008 Baltimore avenue, in the city of Kansas Oity, in the county of Jadcson and State of Missouri. Its chief works shall be located in the Indian Territory. *35 Third. The object and purposes for which this corporation is formed are as follows: To produce, manufacture, buy, sell and otherwise handle and deal and traffic in cement, lime, brick, stone, both natural and artificial, and other building and construction material, and all products and articles consisting or partly consisting of stone, shale and other minerals or mineral earth and materials and all products thereof; to produce, mine, buy, sell and othermse handle and deal and traffic in coal, oil, yas and other minerals and mineral products; to acquire, own, lease, occupy, use, mine, hold and develop lands for the purpose of producing all or any of the substances, products and materials, hereinbefore mentioned, and for all other uses connected with the objects and purposes of the corporation as herein stated; to construct bridges, buildings, machinery, railroads, elevators, waterworks, gas works and electric works and lines, pipe lines for the transportation of oil, gas, water and other fluids, aqueducts, canals and' other works, and to exercise any and all powers necessary or convenient to the carrying out of said object and purposes, or which now are or hereafter may be authorized by law. (The italics are mine.) Foreign Corporation-Right to maintain Suit. I. Plaintiff’s learned counsel, while apparently admitting that his client has not been licensed to transact business in Missouri, asserts that it is, nevertheless, entitled Prosecirfce this action in the courts of this State, because the dealings and transactions out of which this litigation arose were with citizens of the State of Oklahoma, and affected only property located in that State. That sections 3039 and 3040, Revised Statutes Í909, only prohibit foreign corporations from the “doing of business in this State with citizens of this State” before obtaining a license to transact business here. He cites State ex rel. v. Grimm, 239 Mo. 135 ; International Textbook Co. v. Pigg, 217 U. S. 91 ; Chambers v. Railroad, 207 U. S. 142 -148; United Shoe Machinery Co. v. Ramlose, 231 Mo. 508 ; and Roeder v. Robertson, 202 Mo. 522 . Section 3039, Revised Statutes 1909, requires every foreign corporation “now or hereafter doing business within this State” to pay a corporation tax *36 on that part of its capital stock “which is represented by its property located and business transacted in Missouri,” and to procure a license to do business in this State. Section 3040, Revised Statutes 1909, further provides that a foreign corporation “now doing business in or which may hereafter do business in this State, which shall neglect or fail to comply with the conditions of this law” (which obviously includes the requirements of section 3039, supra), “shall be subject to a fine of not less than one thousand dollars,” and in addition to such fine every foreign corporation so offending shall not be permitted to “maintain any suit or action, either legal or equitable, in any of the courts of this State, upon any demand, whether arising out of contract or tort.” The construction of these sections of our statutes before cited has been before this court several times, and has been so interpreted as to open the doors of our courts to foreign corporations under circumstances which at first impression would appear to be forbidden by the letter of the statutes before cited. In the case of United Shoe Machinery Company v. Ramlose, 231 Mo. 508 , cited by plaintiff, it was held that while a lease of machinery by a foreign corporation to be used in the State of Missouri by a citizen thereof was void, because the foreign corporation had not secured a license to do business in this State, yet as the invalidity of the lease did not destroy or affect the title of the foreign corporation to the machinery leased, it should be permitted to replevy said property through the courts of this State. The case of State ex rel. v. Grimm, 239 Mo. 135 , also cited by plaintiff, is not in point here on account of the total dissimilarity of the facts in that ease and this. The Grimm case involved the right of a citizen of Illinois to enforce in the courts of this State a con *37 tract of life insurance entered into in Illinois with a California corporation. The case of International Textbook Co. v. Pigg, 217 U. S. 91 , involved the construction of a law of Kansas somewhat similar to our own. In that case the Textbook Company maintained no office in Kansas, but was domiciled in the State of Pennsylvania and obtained its business in other States "through solicitors. Its chief business was teaching its patrons useful scientific information by correspondence through its Pennsylvania office. It was held in that case that the business of the Textbook Company came within the purview of the Interstate Commerce Law and plaintiff could not be denied the right to enforce its contracts through the courts of Kansas. In the case of Roeder v. Robertson, 202. Mo. 522, also cited by plaintiff, this court held that, while a sale of personal property on credit in this State by a corporation not licensed to transact business in Missouri was invalid, such foreign corporation could not take advantage of its own wrong and regain possession of the property sold, without placing the purchaser in statu quo, by refunding to him the money and property it had received through such invalid sale. It will thus be seen that the facts and issues of law in the case at bar are not the same as in any of the cases cited by plaintiff. The case of International Textbook Company v. Pigg, 217 U. S. 91 , holding that a Kansas, statute similar to ours did not apply to a foreign corporation with its chief office in another State and engaged in interstate commerce -with the citizens of Kansas, comes nearer supporting plaintiff’s contention than any other authority cited by it, or found by us. However, in the case at bar it is. not alleged in the pleadings, or proven by -the evidence, that plaintiff was engaged in interstate commerce when the business was transacted that resulted in this litigation. The evidence does not disclose that plain *38 tiff ever did any business, except change its name and sell its capital stock, before attempting to purchase the property of defendant Citizens G-as Company. The respondent does not deny that in attempting to make the purchase before mentioned it was ‘ ‘ doing business’-’ within the meaning of section 3010, supra, but it asserts that, notwithstanding plaintiff had no license to transact business in Missouri, and notwithstanding the further fact that it maintained its main office (in fact, its only office) in this State, it did not violate our law by transacting business with defendants, because said defendants are not citizens of Missouri, and the property about which the negotiations were had was not located in this State. I am convinced that this contention is unsound. I have not been able to find any language in our statutes or any adjudicated case which sustains plaintiff’s position on this point, and I am unable to see why transacting business with a nonresident, or other stranger who is temporarily within our gates, is not doing business in this State to the same extent as though such transactions were had with citizens of this State. By referring to plaintiff’s charter, hereinbefore quoted, it will be observed that its business is “to buy, sell and otherwise handle and deal in coal, gas and other minerals and mineral products,” so that in making the attempted purchase from the defendant Citizens Gas Company plaintiff was carrying out one of the express powers of its. charter. It is contended by the attorney for plaintiff that the pipe line which it attempted to purchase is real estate. If that be true, then plaintiff was also exercising another power of its charter by attempting to “acquire” land. If the officers of plaintiff and defendant Gas Company had merely met in this State to negotiate a purchase or sale of property in another State, that fact alone might not amount “to doing business in this *39 State” so as to require either party to procure a license to transact business here. But in the case at bar the plaintiff located its chief office in our State for the express purpose of buying and selling gas, lands and other things., and we think it may be fairly inferred from the general phraseology of its articles of incorporation that it was intended by the incorporators that the principal business of plaintiff should be the purchase and sale for profit of the classes ,of property named in its charter, although it acquired the incidental power to do other business. Pursuant to the express provisions of plaintiff’s charter it transacted at its said office in Missouri some of the very business for which it was. incorporated. I therefore hold that in negotiating with said Citizens Gas Company to purchase its contract for furnishing gas and its pipe line, and in depositing the $10,000 with defendant Campbell, the plaintiff was doing business in the State of Missouri in accordance with the powers recited in its charter, and also within the purview of sections. 3039 and 3040, Revised Statutes 1909. The provisions of sections 3039 and 3040, supra, are not a discrimination against foreign corporations, nor do those sections deny to such foreign corporations the equal protection of the law as guaranteed by the Fourteenth Amendment to the Constitution of the United States, In construing statutes all such laws as stand in pari materia should be considered and construed together. [Macke v. Byrd, 131 Mo. 682 , BlystonSpencer v. Railroad, 152 Mo. App. 118 .] Under the laws of Missouri domestic corporations organized for profit must pay a corporation tax to the same extent and amount as foreign corporations, and procure a charter before they can enter the business world and receive title to property, or use the courts of this State to enforce their rights, [Art. 10, sec. 21, Con *40 stitution of Missouri; Secs. 2976 and 3039, R. S. 1909; Douthitt v. Stinson, 63 Mo. 268 , l. c. 277; Hurt v. Salisbury, 55 Mo. 310 ; Queen City Furniture and Carpet Co. v. Crawford, 127 Mo. 356 ; Western & Atlantic Railroad Co. v. Dalton Marble Works, 122 Ga. 774 ; 30 Cyc. 27, 30.] So that when our General Assembly required foreign corporations, organized for profit and doing business in our State to assume the same burdens, as domestic corporations, it was only declaring a self-evident principle of natural justice. That provision of section 3040, Revised Statutes 1909, prohibiting foreign corporations from maintaining suits in this State before they have obtained a license to do business here, is a peculiarly equitable law. A very large per cent of the work of our courts, is devoted to hearing and determining actions, to enforce the rights of corporations — foreign corporations consuming their full share of our time. [Tri-State Amusement Co. v. Amusement Co., 192 Mo. 404 .] It is undoubtedly within the power of the States to place reasonable limitations upon the classes of cases that may be maintained in their several courts. The case of Chambers w. Railroad, 207 U. S. 142 , involved the construction of an Ohio statute which provided that suits for the wrongful death of a person, occurring in another State, could only be prosecuted in the State of Ohio where the deceased was a resident of that State. The constitutionality of that statute was upheld by the decision last cited, because it operated uniformly upon all heirs of the person whose death was wrongfully caused, whether such heirs resided in Ohio or elsewhere. The doctrine of this Chambers case is cited with approval in St. Louis & Iron Mountain Ry. Co. v. Taylor, 210 U. S. l. c. 285; Maiorano v. Railroad, 213 U. S. l. c. 275; Denver and Rio Grande R. R. Co. v. Wagner, 167 Fed. l. c. 79; and St. Bernard v. Shane, 201 Fed. l. c. 457. *41 A state having the right to forhid the heirs of a deceased person to prosecute suits in its courts because their ancestor did not reside within its borders at the time of his death, it must necessarily follow that a State may prescribe the terms upon which corporations may prosecute actions in its courts, provided all corporations (foreign and domestic) are accorded the same privileges and subjected to the same restrictions. This the laws of Missouri do. The Chambers case, supra, is cited by plaintiff, but we are unable to understand how that case tends to support its contention. For the foregoing reasons I dissent from the views expressed and conclusion reached by the majority of my brethren. Graves and Walker, JJconcur in the views expressed in this dissent. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8018644. Public record. Not legal advice.