International Textbook Co. v. Peterson

TimxiN, J. Aside from the question of interstate commerce involved, this case would be governed by the rule laid down in Catlin & P. Co. v. Schuppert, 130 Wis. 642, 110 N. W. 818, and the contract in question invalid because bilateral and containing an express undertaking on the part [308] of tb© plaintiff corporation' affecting the “personal liability” of such corporation. That it would be for this reason within the letter of sec. 1110b, Stats. (1898); as amended, seems obvious. That it would be within the spirit of that act seems equally clear, if we consider that one purpose of the act was to enable persons contracting with foreign corporations to enforce the contractual obligations of such corporation in domestic tribunals, state or federal, without being obliged to follow such corporation for such purpose to the distant place of its domicile. The details of soliciting pupils, imparting instruction, the delivery, bailment, and return of books would also come within the prohibition against transacting business in this state. When the adoption of the federal constitution conferred upon Congress the power “to regulate commerce with foreign nations and among the several states and with the Indian tribes,” at the same time leaving the states with all the ordinary sovereign powers over persons and property within their boundaries, there was created a very peculiar situation, under which judicial questions must constantly arise, in many instances not to be reached or settled by general rule; for the ever-varying points at which interstate commerce tends ,to blend with domestic commerce, the ingenious changes and combinations which result from commercial activity, the progress of invention and discovery in the arts and sciences, must always continue to present for judicial determination new questions baffling any attempt at comprehensive rules or generalizations, and only to be solved by the retail process of inclusion and exclusion. Under these conditions, and realizing that the final interpreter of the law on this subject'is the supreme court of the United States, we take up the question involved in the case at bar with some diffidence. The plaintiff, citizen of and domiciled in Pennsylvania, accepted, and to- a great extent performed, in Pennsylvania a contract with the defendant, domiciled in Wisconsin, which [309] included only incidentally the transfer of articles of property by the usual transportation agencies from Pennsylvania to Wisconsin, and consisted mainly in an obligation to furnish, by such usual transportation agencies, the defendant in Wisconsin, from the domicile of the plaintiff in Pennsylvania, instruction or information continuously for a considerable period of time. The few and incidental articles of property furnished were not objects of sale, barter, or exchange, but instrumentalities through which the plaintiff imparted its instruction. Prom one viewpoint the situation is quite analogous to the newspaper subscription contract by which a resident of one state agrees to receive and pay for a newspaper prepared and printed in another state and transmitted to him by mail. Preston v. Finley, 72 Fed. 850, 859.. But the analogy is not quite perfect, because the newspaper during its ephemeral life is a subject of' trade and barter and is something having an existence and válue independent of the parties to the contract of subscription. Quite analogous, also, to the contract in the case at bar would be a contract by a resident of one state to supply from his place of residence a resident of another state with market quotations, a contract in the same way to furnish one with information concerning the transactions of the patent office, the decisions of courts, or the proceedings of legislatures, or to acquaint one with the processes or secrets of an art, craft, or trade. More remotely analogous would be a contract made under the same circumstances for enlarging or making pictures from photographs furnished by the resident of another state to be transmitted to the latter from the state where made or enlarged, by the usual means of transportation, although in the decided cases great weight seems to have been given to the fact that the tangible objects, consisting of frames and pictures, are themselves subjects of barter and sale and consequently articles of commerce. Brennan v. Titusville, 153 U. S. 289, 14 Sup. Ct. 829; State v. Willingham, 9 Wyo. [310] 290, 62 Pac. 797, 52 L. R. A. 198; State v. Scott, 98 Tenn. 254, 39 S. W. 1, 36 L. R. A. 461. But the decisions of the supreme court of the United States with reference to policies of insurance, and more particularly the reasons upon which these decisions are based, seem to exclude from the domain of interstate commerce the contract and transactions in the case at bar. In the leading case of Paul v. Virginia, 8 Wall. 168, repeated with approval in Hooper v. California, 155 U. S. 648, 15 Sup. Ct. 207, that eminent court said, regarding a policy of insurance issued in one state and transmitted through the usual channels of transportation to a citizen in another state: “These contracts are not articles of commerce in any proper meaning of the word. They are not subjects of trade and barter, offered in the market as something having an existence and value independent of the parties to them. They are not commodities to be shipped or forwarded from one state to another and then put up for sale. They are like all other personal contracts between parties which are completed by their signature and the transfer -of the consideration. Such contracts are not interstate transactions, though the parties may be domiciled in different states.” In New York L. Ins. Co. v. Cravens, 178 U. S. 389, 20 Sup. Ct. 962, where the life insurance policy of a mutual life insurance company provided that the policy should bo construed and interpreted according to the laws of the state of New York, and the place of the contract was expressly agreed to be the principal office of the company in the ci1y of New York, the supreme court adhered to its ruling in Paul v. Virginia, supra, and repeated the reason for that rule in these words: “The contract of insurance is not an instrumentality of commerce. The making of such a contract is a mere incident of commercial intercourse.” Also, Nutting v. Massachusetts, 183 TJ. S.' 553, 22 Sup. Ct. 238. These cases lead ns to believe in the existence of a tentative rule, [311] which, while it does not stretch very far into the domain of commerce, still comprehends the contract in question, because that contract concerns something not a subject of trade or barter having an existence or value independent of the parties to the contract, and is like the insurance policy, “not an instrumentality of commerce, but a mere incident of commercial intercourse.” Upon the subject of interstate commerce, where the authority of the federal court of last resort is paramount, and where our duty is to follow that court, we feel bound by the actual adjudications of that court with the reasons given therefor in the cases above cited, rather than the dicta, found in some of the opinions filed in the Passenger Cases, 7 How. 283, 435, or in Gibbons v. Ogden> 9. Wheat. 1, 4. By the Court. — The judgment of the circuit court-is affirmed. Dodge, J., dissents.