Page:Harvard Law Review Volume 32.djvu/919

BUSINESS JURISDICTION OVER NONRESIDENTS 883 agent. A motion to set aside the service was denied.^^ Judge Hand said: "When it is said that a foreign corporation will be taken to have consented to the appointment of an agent to accept service, the court does not mean that as a fact it has consented at all, because the cor- poration does not in fact consent; but the court, for purposes of justice, treats it as if it had. It is true that the consequences so imputed to it lie within its own control, since it need not do business within the state, but that is not equivalent to a consent; actually it might have refused to appoint, and yet its refusal would make no difference. The court, in the interests of justice, imputes results to the voluntary act of doing business within the foreign state, quite independently of any intent. "The limits of that consent are as independent of any actual intent as the consent itself. Being a mere creature of justice it will have such consent only as justice requires; hence it may be limited, as it has been limited in Simon v. Southern Railway, supra, and Old Wayne Insurance Co. V. McDonough, supra. The actual consent in the cases at bar has no such latitudinarian possibilities; it must be measured by the proper meaning to be attributed to the words used, and, where that meaning calls for wide application, such must be given." ^^ Here then is a third theory of the basis of jurisdiction over for- eign corporations. If a foreign corporation voluntarily does busi- ness within the state it is bound by reasonable regulations of that business imposed by the state, not because it is found there, not because it has consented to those regulations, but because it is as reasonable and just to subject the corporation to those regulations as though it had consented. The jurisdiction is based upon the control of the state resulting from the voluntary act of the corpora- " Bagdon v. Philadelphia, etc. Co., 217 N. Y. 432, iii N. E. 1075 (1916), accord. 58 222 Fed. 148, 151. This opinion was approved by Holmes, J., in Pennsylvania Fire Ins. Co. v. Gold Issue Min. & Mill. Co., 243 U. S. 93 (1917), in which case the defendant had filed a consent to service of process upon a public official, and the service was upheld although the cause of action arose outside the state. It is not yet settled whether, in view of the Old Wayne and Simon cases, service of process upon an agent is vahd, when the cause of action arose outside the state, if no con- sent had been filed. The service was held invalid in Fry v. Denver, etc. R. R. Co., 226 Fed. 893 (D. C, N. D., Cal., 1915), and in Takacs v. Philadelphia, etc. Ry. Co., 228 Fed. 728 (D. C, S. D., N. Y., 1915). But the contrary result was reached in Barrow Steamship Co. v. Kane, 170 U. S. 100 (1898); Atchison, etc. Ry. Co. v. Weeks, 248 Fed. 970, 979 (D. C, W. D., Texas, 1918); Reynolds v. Missouri, etc. Ry., 228 Mass. 584, 117 N. E. 913 (191 7); Tauza 11. Susquehanna Coal Co., 220 N. Y. 259, 115 N. E. 915 (1917)-