The Constitution of the United States of America: Analysis and Interpretation Part 204

[719] This departure was recognized by Justice Rutledge in a subsequent opinion in Nippert _v._ Richmond, 327 U.S. 416, 422 (1946).

The principle that solicitation of business alone is inadequate to confer jurisdiction for purposes of subjecting a foreign corporation to a suit _in personam_ was established in Green _v._ Chicago, B. & Q.R.

Co., 205 U.S. 530 (1907); but was somewhat qualified by the later holding in International Harvester Co. _v._ Kentucky, 234 U.S. 579 (1914) to the effect that when solicitation was connected with other activities (in the latter case, the local agents collected from the customers), a foreign corporation was then doing business within the forum State. Inasmuch as the International Shoe Company, in addition to having its agents solicit orders, also permitted them to rent quarters for the display of merchandise, the observation has been made that the Court, by applying the qualification of the International Harvester Case, could have decided International Shoe Co. _v._ Was.h.i.+ngton, 326 U.S. 310 (1945) as it did without abandoning the "presence" doctrine.

[720] 326 U.S. 310, 316-317.

[721] Ibid. 319.

[722] 339 U.S. 643 (1950).

[723] Ibid. 647-649.--Concerning the holding in Minnesota a.s.s'n. _v._ Benn, 261 U.S. 140 (1923), that a similar Minnesota mail order insurance company could not be viewed as doing business in Montana where the claimant-plaintiff lived, and that the circ.u.mstances under which its Montana contracts, executed and to be performed in Minnesota, were consummated could not support in implication that the foreign insurer had consented to be sued in Montana, the majority a.s.serted that the "narrow grounds relied on by the Court in the Benn Case cannot be deemed controlling."

Declaring that what is necessary to sustain a suit by a policyholder in Virginia against a foreign insurer is not determinative when the State seeks to regulate solicitation within its borders, Justice Douglas, in a concurring opinion, emphasized that it is the nature of the State's action that determines the degree of activity in a State necessary for satisfying the requirements of due process, and that solicitation by existing members operates as though the insurer "had formally designated Virginia members as its agents."

Insisting that "an _in personam_ judgment cannot be based upon service by registered letter on a nonresident corporation or a natural person, neither of whom has ever been" in Virginia, Justice Minton, with whom Justice Jackson was a.s.sociated in a dissenting opinion, would have dismissed the appeal on the ground that "Virginia has not claimed the power to require [the insurer] * * * to appoint the Secretary of State as their agent for service of process, nor have [its] courts rendered judgment in a suit where service was made in that manner." He would therefore let Virginia "go through this shadow-boxing performance in order to publicize the activities of" the insurer.--Justices Reed and Frankfurter joined this dissent on the merits.--Ibid. 655-656, 658, 659.

In Perkins _v._ Benguet Mining Co., 342 U.S. 437 (1952) it was held, that the State of Ohio was free either to open its courts, or to refuse to do so, to a foreign corporation owning gold and silver mines in the Philippine Islands, but temporarily (during j.a.panese occupation) carrying on a part of its general business in Ohio, including directors meetings, business correspondence, banking, etc. Two members of the Court dissented, contending that what it was doing was "giving gratuitously an advisory opinion to the Ohio Supreme Court. [They] would dismiss the writ [of certiorari] as improvidently granted." The case is obviously too atypical to offer much promise of importance as a precedent.

[724] Arndt _v._ Griggs, 134 U.S. 316, 321 (1890).

[725] Ballard _v._ Hunter, 204 U.S. 241, 254 (1907); Pennoyer _v._ Neff, 95 U.S. 714 (1878).

[726] Dewey _v._ Des Moines, 173 U.S. 193, 203 (1899); Pennoyer _v._ Neff, 95 U.S. 714 (1878).

[727] American Land Co. _v._ Zeiss, 219 U.S. 47 (1911).

[728] Pennoyer _v._ Neff, 95 U.S. 714 (1878); citing Boswell _v._ Otis, 9 How. 336 (1850); Cooper _v._ Reynolds, 10 Wall. 308 (1870). Such remedy, by way of example, is also available to a wife who is enabled thereby to impound local bank deposits of her absent husband for purposes of collecting unpaid instalments by him. Moreover, because of the antiquity of the procedure authorized, a statute permitting the impounding of property of an absconding father for the maintenance of his children is not in conflict with due process because it fails to provide for notice, actual or constructive, to the absconder.--Pennington _v._ Fourth Nat. Bank, 243 U.S. 269, 271 (1917); Corn Exch. Bank _v._ Coler, 280 U.S. 218, 222 (1930). Likewise, proceedings to attach wages in execution of a judgment for debt may be inst.i.tuted without any notice or service on the judgment debtor. The latter, having had his day in court when the judgment was rendered, is not ent.i.tled to be apprized of what action the judgment creditor may elect to take to enforce collection.--Endicott Co. _v._ Encyclopedia Press, 266 U.S. 285, 288 (1924).

[729] Goodrich _v._ Ferris, 214 U.S. 71, 80 (1909).

[730] McCaughey _v._ Lyall, 224 U.S. 558 (1912).

[731] RoBards _v._ Lamb, 127 U.S. 58, 61 (1888). Inasmuch as it is within the power of a State to provide that one who has undertaken administration of an estate shall remain subject to the order of its courts until said administration is closed, it follows that there can be no question as to the validity of a judgment for unadministered a.s.sets obtained on service of publication plus service personally upon an executor in the State in which he had taken refuge and in which he had been adjudged incompetent.--Michigan Trust Co. _v._ Ferry, 228 U.S. 346 (1913). Also, when a mother pet.i.tions for her appointment as guardian, and no one but the mother and her infant son of tender years, are concerned, failure to serve notice of the pet.i.tion upon the infant does not invalidate the proceedings resulting in her appointment.--Jones _v._ Prairie Oil & Gas Co., 273 U.S. 195 (1927). Also a Pennsylvania statute which establishes a special procedure for appointment of one to administer the estate of absentees, which procedure is distinct from that contained in the general law governing settlement of decedents'

estates and provides special safeguards to protect the rights of absentees is not repugnant to the due process clause because it authorizes notice by publication after an absence of seven years.--Cunnius _v._ Reading School Dist., 198 U.S. 458 (1905).

[732] Hamilton _v._ Brown, 161 U.S. 256, 275 (1896).

[733] Security Sav. Bank _v._ California, 263 U.S. 282 (1923).

[734] Anderson Nat. Bank _v._ Luckett, 321 U.S. 233 (1944).

[735] Mullane _v._ Central Hanover Tr. Co., 339 U.S. 306 (1950).

[736] Voeller _v._ Neilston Co., 311 U.S. 531 (1941).

[737] Grannis _v._ Ordean, 234 U.S. 385, 395-396 (1914).

[738] Miedreich _v._ Lauenstein, 232 U.S. 236 (1914).

[739] Twining _v._ New Jersey, 211 U.S. 78, 110 (1908); Jacob _v._ Roberts, 223 U.S. 261, 265 (1912).

[740] Bi-Metallic Co. _v._ Colorado, 239 U.S. 441, 445 (1915); Bragg _v._ Weaver, 251 U.S. 57, 58 (1919). For the procedural requirements that must be observed in the pa.s.sage of legislation levying special a.s.sessments or establis.h.i.+ng a.s.sessment districts, _see_ pp. 1058-1059.

[741] Pacific States Box & Basket Co. _v._ White, 296 U.S. 176 (1935); Western Union Telegraph Co. _v._ Industrial Com'n., 24 F. Supp. 370 (1938); Ralph F. Fuchs, Procedure in Administrative Rule-Making, 52 Harvard Law Review, 259 (1938).

Whether action of an administrative agency, which voluntarily affords notice and hearing in proceedings in which due process would require the same, is voided by the fact that the statute in pursuance of which it operates does not expressly provide such protection, is a question as to which the Supreme Court has developed no definitive answer. It appears to favor the doctrine enunciated by State courts to the effect that such statutes are to be construed as impliedly requiring notice and hearing, although, in a few instances, it has uttered comments rejecting this notice-by-implication theory.--_See_ Toombs _v._ Citizens Bank, 281 U.S.

643 (1930); Paulsen _v._ Portland, 149 U.S. 30 (1893); Bratton _v._ Chandler, 260 U.S. 110 (1922); Cincinnati, N.O. & T.R. Co. _v._ Kentucky, 115 U.S. 321 (1885). _Contra_: Central of Georgia R. Co. _v._ Wright, 207 U.S. 127 (1907); Coe _v._ Armour Fertilizer Works, 237 U.S.

413 (1915); Wuchter _v._ Pizzutti, 276 U.S. 13 (1928).

[742] Bratton _v._ Chandler, 260 U.S. 110 (1922); Missouri ex rel.

Hurwitz _v._ North, 271 U.S. 40 (1926).

[743] North American Cold Storage Co. _v._ Chicago, 211 U.S. 306, 315-316 (1908). For an exposition of the doctrine applicable for determining the tort liability of administrative officers, _see_ Miller _v._ Horton, 152 Ma.s.s. 540 (1891).

[744] Samuels _v._ McCurdy, 267 U.S. 188 (1925).

[745] 152 U.S. 133 (1894).

[746] Ibid. 140-141.

[747] Anderson National Bank _v._ Luckett, 321 U.S. 233, 246-247 (1944).

[748] Coffin Bros. & Co. _v._ Bennett, 277 U.S. 29, 31 (1928).

[749] Postal Teleg. Cable Co. _v._ Newport, 247 U.S. 464, 476 (1918); Baker _v._ Baker, E. & Co., 242 U.S. 394, 403 (1917); Louisville & N.R.

Co. _v._ Schmidt, 177 U.S. 230, 236 (1900).

[750] American Surety Co _v._ Baldwin, 287 U.S. 156, 168 (1932).

[751] Saunders _v._ Shaw, 244 U.S. 317 (1917).

[752] _See_ footnote 1, p. 1085. [Transcriber's Note: Reference is to Footnote 741, above.]

[753] Coe _v._ Armour Fertilizer Works, 237 U.S. 413, 424 (1915); Wuchter _v._ Pizzutti, 276 U.S. 13 (1928).

[754] Roller _v._ Holly, 176 U.S. 398, 407, 409 (1900).

[755] Goodrich _v._ Ferris, 214 U.S. 71, 80 (1909). One may, of course, waive a right to notice and hearing, as in the case of a debtor or surety who consents to the entry of a confessed judgment on the happening of certain conditions.--Johnson _v._ Chicago & P. Elevator Co., 119 U.S. 388 (1886); American Surety Co. _v._ Baldwin, 287 U.S. 156 (1932).

[756] _See_ pp. 1084-1088.

[757] Holmes _v._ Conway, 241 U.S. 624, 631 (1916); Louisville & N.R.

Co. _v._ Schmidt, 177 U.S. 230, 236 (1900).

[758] Snyder _v._ Ma.s.sachusetts, 291 U.S. 97, 105 (1934); West _v._ Louisiana, 194 U.S. 258, 263 (1904); Chicago, B. & Q.R. Co. _v._ Chicago, 166 U.S. 226 (1897); Jordan _v._ Ma.s.sachusetts, 225 U.S. 167, 176 (1912). The power of a State to determine the limits of the jurisdiction of its courts and the character of the controversies which shall be heard in them and to deny access to its courts, in the exercise of its right to regulate practice and procedure; is also subject to the restrictions imposed by the contract, full faith and credit, and privileges and immunities clauses of the Federal Const.i.tution. Angel _v._ Bullington, 330 U.S. 183 (1947).

[759] Hardware Dealers Mut. F. Ins. Co. _v._ Glidden Co., 284 U.S. 151, 158 (1931); Iowa C.R. Co. _v._ Iowa, 160 U.S. 389, 393 (1896); Honeyman _v._ Hanan, 302 U.S. 375 (1937).

[760] Cincinnati Street R. Co. _v._ Snell, 193 U.S. 30, 36 (1904).