Commercial Bank v. Sherman

Opinion by

It must be conceded that the contracts of any of the foreign corporations named in the title of the act of eighteen hundred and sixty-four, of which the section referred to is a part, carrying on business, here without first having executed and caused to be recorded a power of attorney as required by the statute are void, and no action can be maintained thereon by the corporation: Bank of British Columbia v. Page, 6 Or. 431; Hacheny v. Leary, 12 Or. 40 (7 Pac. 329); In re Comstock, 3 Sawy. 218 (Fed. Cas. No. 3078); Semple v. Bank of British Columbia, 5 Sawy. 88 (Fed. Gas. No. 12659). But the record shows that at the time the plaintiff made the contract upon which this action is based it was not carrying on, or proposing to carry on, its corporate business in this state, and, -so far as appears, the purchase of the note in question was the only business ever done or contemplated by it here. The single inquiry presented by this record, there*576fore, is whether a foreign banking corporation purchasing a promissory note in this state, and with no purpose of doing any other act here, is “transacting business” in the state, within the meaning of the statute. It seems to us this question must be answered in the negative. In our opinion the statute, when reasonably construed, was intended to prohibit certain foreign corporations coming into this state for the purpose of transacting their ordinary corporate business without first appointing some resident agent upon whom service of summons could be had in case of litigation between them and citizens of the state, and was not designed or intended to prohibit the doing of one single isolated act of business by such a corporation, with no intention apparent to do any other act or engage in business here. It will be noticed the statute does not require the power of attorney to be recorded before “doing any business,” but “before transacting business,” and that it shall be filed in every county where the corporation has “a resident agent,” and shall be irrevocable except by the substitution of another qualified person for the one named therein so long as the corporation shall have “places of business” in the state. These provisions would seem necessarily to indicate that the statute was intended to apply to a corporation, whose actual or contemplated business in the state is such as to admit of its having resident agents or places of business therein. And to have a resident agent or place of business it must be carrying on, or intending to carry on, its ordinary corporate business, for a corporation doing but a single act of business with no intention of doing more could not, in the nature of things, be expected to have a resident agent or place of business. To require a foreign banking' corporation to *577execute and fil8 the power of attorney required by the statute as a prerequisite to its right to purchase a promissory note or take a mortgage to secure a debt, or to do any other single act of business, when there was no purpose or intention to engage in banking here, would be a very narrow, harsh, and, we think, an unwarranted construction of the statute. The following authorities, although under statutes differing in detail from ours, tend to support this conclusion: Murfree on Foreign Corporations, § 65, et seq.; Cooper Manufacturing Company v. Ferguson, 113 U. S. 727 (5 Sup. Ct. 739); Florsheim Brothers Drygoods Company v. Lester, 60 Ark. 120 (46 Am. St. Rep. 162, 27 L. R. A. 505, 29 S. W. 34); Potter v. Bank of Ithaca, 5 Hill, 490; Gilchrist v. Helena Railway Company, 47 Fed. 593. There is nothing in the former decisions of this court or of the federal court construing our statute which, in our opinion, conflicts with these views. In Semple v. Bank of British Columbia, In re Comstock, and Bank of British Columbia v. Page, the bank was regularly engaged in the transaction of its corporate business in the state. The case of Hacheny v. Leary, involved the construction of a statute of the then territory of Washington as applied to a contract made in the territory. That statute differed in many respects from the one now- before us, and, besides, the case discloses that the corporation had an agent in Washington actually engaged in the business of soliciting and receiving applications for insurance. For these reasons tke case is distinguishable from the one under consideration. It follows that the judgment of the court below must be affirmed, and it is so ordered.

Affirmed.