South Carolina Rail Road v. McDonald

By the Court. Nisbet, J. delivering the opinion. [1.] The single question made in this case, is whether the property of a foreign corporation, within the limits of this State, is subject to our attachment laws? The Circuit Judge determined that itis subject; the Judge of the Court of Common Pleas of the city of Augusta, held that it is not. Whilst .upon this question, it is conceded that there is some conflict of authority, upon principle, and also upon the preponderance of authority, as well as upon a fair construction of our attachment laws, wo — 534 — think that such property may be attached in Georgia. The jurisdiction of the Courts of Georgia is co-extensive with its sovereignty, and.that embraces the persons and things within its territorial limits. The Courts of no independent State have any extra-territorial jurisdiction. This general proposition applies to the States of our Union, as well as to other sovereign States. Yet, it is unquestionably true, that the property of a citizen or inhabitant of a foreign State, within the limits of Georgia, is subject to the jurisdiction of our Courts.. By the general law, and by the comity of States, the Courts of one State may seize and apply the property of a non-resident debtor, to the payment of his debts;. May proceed against the property, and conclude the citizen of a foreign State, by a judgment in rem. See these points discussed at length, in Dearing vs. the Bank of Charleston, determined at Milledgeville, in November of this year. Supra, P.497. The question;' however, now before me, do.es not dependupon these general principles. The present question is, whether a creditor is entitled to the remedy at Law,by attachment, againsta foreign corporation, which our Statutes give him against anaturalperson, who is his debtor. It will depend very much upon a construction of the attachment laws of .our own State. The remedies afforded in Georgia, for applying the property of such persons as"fall within their provisions, to the paymen. of debts, by process of attachment, are createdby the Acts of our own Legislature. It is not, therefore, necessary to discuss at all, the force and effect of any principles, upon which is based the process of foreign attachment, by the custom of London. Persons, by non residence, and by placing themselves in any one of the several predicaments described in the Statute, are not amenable to the jurisdiction of the Courts, by the ordinary process of the law. In such cases, before the passage of the attachment laws, there was no legal remedy by which the payment of debts could be enforced. That was the mischief to be remedied. These laws supplied the remedy. The remedy, now, is to attach the property or estate, as the law has it, of the debtor, or so much thereof, as will satisfy the creditor’s demand and costs, wherever it may be found, whether in the hands of any one indebted to, or having effects of such debtor in his hands. The object of the law, as well as the condition upon which the remedy is to be used, is declared in the title of the Act of 1799. “Whereas, (says the title to the Act of ’99,) it is just and proper that provision should — 535 — be made for the recovery of debts, when the same cannot be done by the ordinary process of-the law, therefore, &e.” The object is, to providefor the collection of debts; the condition upon which the remedy to collect may be used, is inability to collect them by the ordinary process of the law. The attachment laws are then remedial Statutes, and are to be so construed as to advance the remedy and to suppress the mischief. There is no necessity, in this case, to apply with very labored and subtle discrimination, the rules of construction. It requires no such effort to bring corporations within the provisions of the Act of ’99. It is unquestionably to be liberally construed, as to the liability which it imposes upon debtors, and as to the rights, or rather remedies which it confers upon creditors; but strictly, as to all the terms andconditionsuponwhichtheremedy may be used, and the obligations enforced. We disclaim the power of this Court to subject corporations to the operation of this Act, upon the score of policy, if they are not within its provisions, fairly, reasonably, and liberally construed. We are not the Legislature, but the servants of the Legislature, to enforce its will, 'as- declared according to the usual canons of interpretation, in the Statute, unlessthat will is in conflict with the State or Federal Constitution, or with the fundamental principles of the social compact. We are but the ministers of the law; We think that corporations are embraced within the .provisions of the Act of ’99, because the terms used in the Act, which describe the persons made subject to its operation, are descriptive of corporations. Those words are “person,” “ party,” “ defendant,’’ “ debtor.” Either 'of these words describe a corporation. It is a person under the law — an artificial person, created by the Legislature. It has a name — a local habita, tion too. It is not a citizen in every sense of the word, but it is an inhabitant — it dwells where by law it is located. 2 How. S. C. Reps. 497. A corporation is a “judicial person” — a legal entity. For many purposes, it has a legal being, It can contract, own property, grant acquittances, convey titles, become the obligee of a bond, prosecute suits, appear, answer, and defend. Now where the law-making power uses the' word person — where it is found in.the Statute book, it is to be presumed that the legal meaning is intended, and not the social or' ’ ordinary meaning. The word is descriptive of all who are, in professional par — 536 — lance, person?. So party and, defendant, are words as applicable to corporations as to natural persons ; because they may be, equally with natural persons, parties and defendants. The word, however, used in the act with most significance, and used most frequently, is debtor. . It would seem that the General Assembly, by using that term, intended to' guard against the very construction I am now combatting, to wit, that the act applies only to natural persons. That is a generic term, and embraces all who owe debts, whether natural persons, partnerships, or corporations. These are not merely verbal criticisms. These words constitute material parts of the enacting clauses of the Statute, and give to them significance. They define the class of persons- which the Act makes liable to the process. If .their meaning is ascertained, then is the meaning of the provisions of the Act'of ’99 ascertained. Upon complaint made upon oath by a creditor, that his debtor resides out of the State, &c. so that the ordinary process of the law cannot be served upon him, -it is made the duty of judges and magistrates to grant an attachment against such debt- or. Now, iu these provisions are found the grant of the remedy —the designation of those who are liable to its use, and the conditions upon which its use depends. They contain the soul of the -Statute. They create the remedy and impose the liability. "Judged by them alone, it is impossible to,believe that the Legislature, by debtors, meant natural persons alone. It is said, however, that the moaning of the general terms employed in the Act, is controlled and limited by other clauses and provisions. We shall see. . Again, it is clear that a corporation may occupy one of the positions, to-wit: the position of a non-resident, in which a debtor must be placed before the attachment can .issue. It may reside out of the State, and hence, we infer, that the Statute applies to it. We have seon that a corparation is an inhabitant, or resident of the State, where, by law, it is located. In that State, therefore, where it is not located, it is a non-resident. If it does not reside in Georgia, it resides out of the State, and falls into that predicament in which the process by the Act is authorized to be issued. And this is the only condition upon which it could be at all made liable to the process. The Legislature has actually given to creditors all the remedy which it would be possible now to give against a corporation, were it anew to undertake to presciibe — 537 — remedies. It can not abscond, nor remove, nor conceal itself, nor stand in defiance of a peace officer,-but it may reside out of the State. But it is argued, that because it cannot do' these things, we are therefore to infer, that the Legislature did not contemplate a corporation — it is said, in other words, that it contemplated only such persons as are capable of absconding, removing, concealing, &c. and inasmuch as corporations are incapable of • doing these things, they are not embraced in Lhe Act. If it was necessary that a debtor should reside out of the State, abscond, remove and conceal himself, and stand in defiance of a peace officer — if it was necessary for him to fulfil all and each of the conditions prescribed, before an attachment could issue, why then, the argument would be irresistible. The demonstration of this necessity is indispensable to give to it the'least force. But so far from this being necessary, it is clear that the process will issue upon the happening of any one of the contingences named in the Act. Nay, more, it is obliged toissue upon a single ground, and if more than one is taken in the complaint on oath, it will be fata'l to the suit. The Statute declares that the process shall issue upon ■complaint on oath, that a debtor resides out of tlie State, or absconds, or is removing, <|'c. It is the right of the defendant to traverse the ground taken by the plaintiff, and he must be distinctly and singly notified upon what ground the plaintiff relies. Whilst upon this branch of the discussion, I-refer to another reason urged by counsel why corporations are to be excepted from the operation of the Statute. The reason is, that in 1799, when the Act was passed, there were but few corporations in this country, and because of that fact, it is to be presumed that they were not intended to be embraced in it. It is very true, that at that day, there were comparatively few corporations in the States of our Union. Yet, there were corporations in the Union — in England — in almost all the States of Europe. Since that d.ay, corporations, both public and private, have multiplied enormously, and the importance of that part of the legal science, which defines their rights and liabilities, is more seriously felt than it was then ; and it is true, also, that the law of corporations is now much .better understood than it was at that time. Still, corporations for commercial, and political, and municipal purposes, were then, as now, known to tjie law, and to all intelligent — 538 — legislators. They were known at Rome — in trocí need into Britain whilst-a Roman province — weie sanctioned by the Common Law — introduced into this country whilst the States were Colonies, and created by legislation in the Union, after the declaration of independence. The Legislature of Georgia 'could not have been either ignorant or unobservant of these facts. Certainly they did know and did consider, that there were abroad in the world, such institutions, and that they were capable of contracting debts. They must have known and considered that corporations can as well become debtors, as natural persons. Again, it is insisted that the meaning of those general clauses of the Act, to which I have referred as embracing corporations, is limited by other provisions. Thus, it is said,- they cannot in-, elude corporations, because, by subsequent provisions, the right of replevying the property attached, is given to the defendant, upon condition, that he appear and put in special bail, and as corporations cannot put in special bail, they cannot replevy. The argument, differently stated, is this : A very important privilege, that of replevy, is given to defendants in attachment, upon a condition, with which corporations, from the very nature of their constitution, cannot comply, ana therefore, they must be excepted from the operation of the Statute. Let. it be taken, for the sake of this argument, as true, that the Act does not allow areplevy, unless the defendant shall appearand put in special bail. And let it be conceded, (for it is true,) that a corporation being an intangible, invisible, legal entity, cannot put in special bail, because it is incapable of a personal surrender — still it is questionable, whether corporations would not be liable to attachment. There are no' exceptions in favor of corporations in the Act — its terms apply to and embrace them. The inability grows out of the nature of the corporation. This being so, the construction of the Statute might be reasonably made, not that a corporation, defendant in attachment, could not replevy, but that it would be entitled to replevy without complying with the condition, that is, without putting in special bail. This point was decided in an analogous case-: — the- case of Carpentier vs. The Delaware Insurance Company, 2 Binn. 264. In that case, it was contended that the plaintiff could not enter a rule of reference, because the defendants-'were a corporation— that in every case intended to be referred, an appeal was given, but that in no case could it be .obtained by a defendant, without — 539 — entering into a recognisance, conditioned to pay the debt and costs, or to surrender himself to jail; and that a corporation could not give such a recognisance, because it'could not be surrendered. It was contended that the right of appeal was upon condition that the defendant put in special bail, and as a corporation could not do that, it must be excepted from the operation of the law, which allowed a rule of reference to plaintiffs. Just the case here. In that case, the Chief Justice said : “ It is clear that one of the alternatives of this condition is not applicable to a corporation, which is not a natural but a political body, incapable of being surrendered'or imprisoned. I agree, that the form of the recognisance is not applicable to a body corporate, but from this I draw a different conclusion from them. I do not infer that the defendant can have no appeal, but that he may have an appeal without entering into any recognisance.” The exact point made by the plaintiff in error here, was made in Pennsylvania, under the attachment laws of that State. It was there claimed that corporations are not within the Act, becatise, it provides, “ that if the plaintiff in attachment obtain verdict, judgment and execution for the money and goods in the garnishee’s possession, yet the defendant in attachment may, at any time .before the money is paid, put in bail to the plaintiff’s action, upon which the attachment is grounded, whereby the garnishee will, and shall be immediately discharged.” The exception of corporations from the operation of the attachment law of that State, was claimed, because the condition of replevy was such as they could not comply with, to-w it: put in bail to the action. Just-so in the case at this bar. The Court ruled in the Pennsylvania case, that corporations were within the Act, sustaining'the view taken by the Court in Carpentier vs. The Delaware Insurance Company. Rogers, J. delivering the opinion of the Court, said : “ Granting merely for the sake of the argument, that ‘ bail to the plaintiff’s action,’ as used in the Act of Assembly, means special bail only, and agreeing, as, I certainly do, that a corporation cannot enter special bail, yet it by no means follows, that the effects of foreign corporations cannot be attached under the Act of 1705.” After commenting approvingly on the case of Carpentier vs. The Delaware Insurance Company, he proceeds, “ In this case, I do not infer that the effects of foreign corporations cannot be attached, but should infer, were it not for considerations that I shall state, — 540 — that the attachment should be dissolved by entering an appearance without bail.” Bushel vs. Commonwealth Ins. Com. 15 Serg. & Rawl. R. 176. The argument of counsel for the plaintiff in error, might be considered as fully answered by this view of the question, supported by the two casos referred to. Rut we do not rest our judgment alone upon that view of the question. This is a much stronger case than the case in 15 S. & R. There the replevy by the Act, depended upon the putting in of special bail, here, by our Statute, it does not. The defendant, by the Act of ’99, is entitled to replevy the property attached, by appearing and putting in special bail, or by giving bond, with good and sufficient security to the Sheriff, or other officer serving the process, conditionedfor his appearance at the Coitrt to which it is returnable, and abiding: and, performing the order and judgment of that Court. He is not required to do both — if he gives the bond and security, the property is replevied. The alternative seems to have been provided to meet the case of corporations, They are under no inability to give bond, and are deprived of no right of replevy which the Statute gives to a natural person. Nor, I may'say of any other right of any kind, which it confers upon natural persons. -They • can appear — plead—give bond — replevy. What more do they want? -They are not entitled to special favors in our Courts of justice. They are entitled to equal rights with other persons, and no more. And the plaintiff in attachment is as fully protected by the bond of a corporation, as he is by the bond of a natural person. Let the remedies of the plaintiff on that bond be wliat they may, (and about them it is unnecessary to express an opinion,) they are the same against a-foreign corporation that they are against the citizen of a foreign State, when he replevies by giving bond. It is said that the Act of 1829 is in pari materia with the Act of’99, and that construing the two together, the inference is deducible, that corporations are not embraced in the latter Act. As the. Act of’29 is amendatory of the “several attachment laws of this State,” I see no objection to considering it as in pari materia, wiili them. I recognise the rule, too, that Statutes in pari materia, are to be construed together as one Statute. As to one Statute', a familiar rule of construction is, that it is to be so construed, as that all of its provisions may stand. Applying this — 541 — rule to the two Acts of ’99 and ’29, I see nothing in them to warrant the inference drawn by the counsel for plaintiff. They are not at all in conflict. The Act of ’99 may. embrace corporations and not in the least interfere with the Act of ’29. The latter is an Act to subject the property offoreign Insurance Companies, within this State, who conduct their business here by agents, to attachment, at the instance of the insured. It provides the manner in which it may be done, &c. Now, this is express legislation, by virtue of which, one class of creditors may attach the property of one kind of foreign corporations. But it leaves the rights of all other creditors against that class of incorporations, and against all other corporations, precisely where it found them under'the Act of’99. We give full effect to the Act of’29, as the latest'declared will of the Legislature, so far as it goes. To the extent that it does not go, the prior Acts are in- full force. If, under the prior Acts, other corporations were liable to attachment, and Insurance Companies were liable to attachment at the instance of other persons who are creditors, than persons insured, why surely, they are still liable. There is no repugnancy between the two; both may, and in our judgment, must stand. If it be said that'the Act of’29 is a legislative construction of the Act of ’99, by which it has impliedly declared its opinion, that corporations are excepted from that Act, then our reply is, conceding that it is so — however, in cases of doubt, we might respect such an opinion of the Legislature thus expressed by implication, yet, in cases where we have no doubt, or little doubt, we would not regard it. So long as the General Assembly permits the Act of ’99 to remain unrepealed, being convinced that it applies in its terms and spirit to corporations, we shall give it effect against them. There is one rule of statutory construction recognised in England, and by the Supreme Court of the United States, which is conclusive of this question. It is this. Corporations are to be deemed and considered as persons, when the circumstances in which they are placed are identical with those of natural persons, expressly included in a Statute. Thus, in England, a corporation seized in fee of lands for its own benefit, was considered an inhabitant or occupier, within the meaning of the Statute 42 Eliz. Ch. 2 and liable in its corporate character to be rated for the poor tax. Cowp. 73. To the same effect, see Lord Coke, 2 Inst. 703, also — 542 — The People vs. Utica Insurance Company, 15 Johns. R. 381, 382. In Beaston vs. The Farmer’s Bank of Delaware, the Supreme Court of the United States say, “No authority has been adduced to show that a corporation may not, in the construction of Statutes, be regarded as a natural person, whilst, on the contrary, authorities have been'cited, which show that corporations are to be deemed and considered as persons, when the circumstances in which they are placed, are identical with those of natural persons expressly included in such Statutes.” Natural persons are expressly included in the Act of ’99, and it requires but a glance to see that corporations located abroad, and being debtors, are placed in circumstances identical with those of natural persons, residing out of the State, who are also debtors. The case of Beaston vs. The Farmers’ Bank of Delaware, sustains so fully the construction which we put upon our attachment law, that a more specific reference to it, I am sure, will be excused. It is a long case, and involved several questions. Amongthem this — whether a corporation is included in the provisions of the Act of Congress, which gives a preference to the United States, in the distribution of the effects of revenue officers and other persons becoming indebted to the United States, and afterwards proving insolvent. The section of that Act referred to, is in these words, “ That when any revenue officer, or other person, hereafter becoming indebted to the United States, by bond or otherwise, shall become insolvent, or where the estate of any deceased person in the hands of executors or administrators, shall be insufficient to pay all the debts due from the deceased, the debt due to the United States shall be first satisfied, &c.” Corporations are not, in terms, embraced in the Act, nor are they excepted. Those persons named, and expressly included, are designated as revenue officers and other persons, and in a subsequent part of the Act, as debtors. The meaning of Congress, clearly, was to include persons indebted to the United States. In construing this Act, the Supreme Court say, “ All debtors to the United States, whatever their character, and by whatever mode bound, may be fairly included within the language used in the Act of Congress.” The point was, whether corporations were included, and the Court determined that they were. They farther held that, if a corporation can be brought into any one of. the predicaments stated in — 543 — the Statute, it will be sufficient to include them. Mr. J. Story dissented from the judgment of the Court, upon the ground, principally, that a corporation could not be included in the Act, because it could not be placed in all the predicaments 'stated. For example, he said, that if corporations could be supposed to be deceased debtors, “yet, by no reasonable use oflanguage, can they be said to have executors or administrators.” Upon the same ground, this learned jurist could not have dissented from a similar opinion on our Act of ’99, because the predicaments stated in that Act, are in the alternative. His dissent, therefore, does not at all weaken the authority of the case. How remarkably alike, in important particulars, are the Act of Congress, and the Act of Georgia of 1799. Both, internas, include persons who are indebted. If by the judgment of the Supreme Court, corporations are included in the former, they must be included in the latter. 12 Peters’ R. 102. Also, see United States vs. Amedy, 11 Wheat. 392. In The Planters & Merchants Bank of Mobile vs. Andrews, 8 Porter, 404, the Supreme Court of Alabama decided, that under the attachment laws of that State, the term person embraces not only natural, but artificial persons, and that a corporation is a person within the meaning of those laws. The same doctrine was held under the attachment laws of Pennsylvania, in the case of Bushel vs. Commonwealth Ins. Co. 15 Serg. & Rawl. 176, already referred! to, and is approved by Angel & Ames. See A. & A. 337. See also, 1 Story’s R. 531. 9 Conn. R. 430, and 9 N. Pl. 11. 394. The doctrine was differently settled in the matter of McQueen vs. Middletown Man. Co. by the Supreme Court of N. Y. 16 Johns. R. 5. The reasoning of the Court in that case, is not very satisfactory. And, moreover, the provisions of the Statute of New York, upon which that decision was made, are somewhat different from those of our own Act. The New York Statute provides that the debtor may give security to the creditor, to appear and plead to any action to be brought in any Court of Law or Equity in the State, within six months, by the creditor against him; and to pay such sum as may be recovered against him in such action, and if that is done, the Judge who issued the warrant of attachment shall issue a supersedeas to the warrant. The Court were of the opinion that the Act supposed that the person giving security, would, if within the State, be subject to a suit, and that, as a foreign corporation could not be sued in New York, — 544 — because service could not be perfected on it there, it could not be intended to apply to corporations. The Court thought that the Legislature contemplated a liability to arrest. The New York Statute is distinguishable from ours in this ; that Act supposes a suit to be brought, to which the party binds himself to appear and plead, and to pay the sum therein recovered ; that is, an independent suit, distinct from the attachment, and of course, it supposes the service of such suit. Our Statute contemplates no such independent suit; the bond which it requires, binds the defendant to appear at the Court to which the attachment is returnable, and to abide by and perform the order and judgment of that Court. It therefore contemplates no service of any suit, save that which has been already perfected in rem, and which, in case of a foreign citizen, even, is a legitimate service. The reasoning, therefore, of the New York Court, if fully applicable to the law of that State, is not applicable to our Act. Foreign corporations are, equally with natural persons, entitled to the remedy by attachment, in our Courts — the right and the liability ought to be reciprocal. If politic considerations are to be taken at all into the estimate, it is obviously politic, and justly so, that corporations, whose property within our limits receives the protection of our laws, should be held liable to those laws, so far as they can be reached through that property. If allowed to contract and enforce debts by the laws of this State, their property within its jurisdiction ought to be, in policy and in justice, made liable to the payment of their debts. Let the judgment be affirmed.