Connecticut Mutual Life Insurance v. Cross

By the Court, DixoN, C. J. Whether foreign corporations have capacity to contract in this state and to sue in our courts, are questions which require no discussion. The counsel for [112] tbe appellant concedes, as we think, very properly, that they have such capacity. Certainly no principle can be better settled than that corporations created in one state may transact such business as their charters authorize in another state, provided the business so transacted be not inconsistent with the laws or policy of that state, and contracts arising out of such transactions, not otherwise unlawful, will be enforced. The same is true of their capacity to sue and appear in the courts of another state. We come then at once to the form of the pleading. It is urged, as we understand the argument, that the complaint is insufficient because it does not set forth in haec verba those parts of the charter which authorize the respondent to loan money upon bond and mortgage. Primafacie, says the counsel, the respondent, an insurance company, has no such authority ; it is a contract foreign to its name and business. Hence the express provisions of charter, if there be any, must be set out in haec verba. It is very questionable whether the counsel is correct in assuming that express authority is necessary to enable insurance and other corporations holding funds in trust for stockholders and others, to enter into such contracts. There are many very respectable authorities which hold that the loaning of money upon such securities is a power necessarily incident to the business which such companies are authorized to transact. If this be so, then the argument founded upon the supposed distinction between express and implied powers, as to the mode of pleading, falls to the ground. But we deem it unnecessary to enter upon the discussion of this and other points made by counsel, since we are of opinion that the whole matter, so far as the present complaint is concerned, is conclusively settled by statute. In this case the act of incorporation is pleaded by reciting the title with proper averments as to the legislative authority by which it was enacted. The authority of the company to make the loan is also [113] averred in general terms. The statute, secs. 4 and 11, ch. 148, R. S., is as follows : “ Section 4. In actions by or against any corporation created by or under any law of this state, it shall not be necessary to recite the act or acts of incorporation, or the proceedings by which such corporation was created, or to set forth the substance thereof; but the same may be plead-' ed by reciting the title of such act. Section 11. A' foreign corporation created by or under the law of any other state, government or country, may prosecute in the courts of this state in the same manner as corporations created under the laws of this state, upon giving security for the payment of costs of action, in the same manner that non-residents are required by law to do.” It is very obvious that domestic corporations, as matter of pleading, are not required to set out their acts of incorporation, either in haec verba or in substance, either as to their express powers or those which are implied, but that, the title of the act being recited, a general averment is in any case sufficient. Foreign corporations are placed upon the same footing, and the complaint is in these respects good. The objections that different causes of action are improperly united, and that the authority of courts of equity to give judgment for deficiency after the sale of mortgaged premises is an infringement of the right of trial by jury secured by the constitution, are fully met by ch. 243, Laws of 1862, and the case of Stilwell v. Kellogg, 14 Wis., 461. The appellant’s counsel has further favored us with a most elaborate argument, the classification of which is somewhat more difficult,. It is aimed in part at the decision in Stilwell v. Kellogg, and the case there cited, but more especially at the Code of Procedure, the whole fabric of which, from foundation to key-stone, the counsel seeks to upset and leave in shapeless ruins. In this last respect it may be said to be a blow at all the decisions of this court since 1857, and indeed very many before that time. The code being a nullity, and all proceedings connected with it void, the counsel argues that the plaintiff [114] bas no action at all, and that there is nothing before the court for its consideration. Certainly, if sustained, the point ought to be good on demurrer. He reasons, not that the code violates the constitution, but that the constitution is unconstitutional ; that although that instrument apparently confers the power, yet it is incompetent for the legislature to enact the code or any other system of practice different from that which prevailed at the common law above seventy-five years ago. He goes back of all written constitutions in this country, and takes his positions upon article II of the so called “Articles of Compact” found in the famous Ordinance of 1787 for the government of the territory north-west of the river Ohio. That article, among other things, provides that “ the people of said territory shall always be entitled to the benefits of the trial by jury * * * and of judicial proceedings according to the course of the common law.” These articles, says the counsel, being declared the basis of all laws, constitutions and governments which forever thereafter should be formed in the said territory, are paramount, and must govern in all cases of conflict between them and the constitutions and laws of the states and governments since erected within said territory. Hence he argues that the right to trial by jury remains as at the passage of the ordinance, and that the couj-se of judicial proceedings then existing at the common law still continues, and must forever continue inviolate and inviolable, the constitution and laws of this state to the contrary notwithstanding. If this be so, then it will be seen, as already suggested, that the conclusion of the counsel reaches far beyond the code. It leaves scarce a trace of all our legislation, state or territorial, upon the vastly important subject of remedies; for after the lapse of three quarters of a century and whilst we were still practicing as at the common-law, no single proceeding remained precise-as it was at the time the ordinance was passed, and many were wholly remodeled and changed. A conclusion so startling is only equaled by another of a kindred nature which I once [115] beard gravely urged by a learned counsel of tbis court, to tbe effect that we have no common law at all in tbis «tate, and never have bad, and never can have, except it be through tbe medium of direct legislative enactment or adoption. Between tbe two theories, that we have no common law and that we have no statute law, tbe people of our state would be left in a most unfortunate dilemma. Bat to return to tbe propositions of tbe counsel: we are in doubt whether to take them seriously or not. If intended as a joke, they are capitally good; if as an argument, capitally bad. And in support of tbe last conclusion we have merely to suggest, conceding to tbe ordinance tbe force and vitality which tbe counsel claims for it, that tbe adoption of tbe constitution of tbis state by tbe free will and vote of tbe people with tbe assent of tbe government of tbe tbe United States, and tbe subsequent admission of the state into the Union, in our judgment, abrogates entirely tbe provisions of tbe ordinance wherever its provisions and those of tbe state constitution come in conflict. Such adoption and ratification of tbe constitution was a repeal of the ordinance “ by mutual consent,” as provided for by the ordinance itself, and gave to the legislature of tbe state plenary powers of legislation, except as limited by tbe constitution of tbe United States and tbe constitution of tbis state. Order affirmed.