Page:Harvard Law Review Volume 32.djvu/917

881 BUSINESS JURISDICTION OVER NONRESIDENTS 88i 519. This consent may be accompanied by such conditions as Ohio may think fit to impose; and these conditions must be deemed valid and effectual by other States, and by this coiu-t, provided they are not repugnant to the constitution or laws of the United States, or inconsist- ent with those rules of pubUc law which seciue the jurisdiction and authority of each State from encroachment by all others, or that prin- ciple of natural justice which forbids condemnation without opportu- nity for defence. . . Now, when this corporation sent its agent into Ohio, with authority to make contracts of insurance there, the corpora- tion must be taken to assent to the condition upon which alone such business could be there transacted by them; that condition being, that an agent, to make contracts, should also be the agent of the corporation to receive service of process in suits on such contracts." This line of reasoning is undoubtedly sound enough in cases in which it is really possible to find sufficient evidence of consent. In truth, however, although it is sometimes possible to spell out a consent by the corporation, it is often difl&cult and sometimes im- possible to do so.'*^ But the corporation may be held even if it appears that it did not consent. The Supreme Court recognizes that the implication of consent in many cases involves a fiction, but the corporation nevertheless does not on that accoimt escape.^" 2. To meet the difficulty of lack of any real consent, and to avoid the necessity of resorting to a fiction, it has been urged that the jurisdiction is based upon the presence of the corporation within the state.^^ It is asserted that a corporation is actually present and can be found wherever it is engaged in business. On this theory a foreign corporation can be served in a state where it does Position of Foreign Corporations in American Constitutional Law, Chap. V; Cahill, "Jurisdiction over Foreign Corporations," 30 Harv. L. Rev. 676. The theory is supported in Beale, Foreign Corporations, Chap. XI. rageous as to amount to a deprivation of property without due process of law. It has been held that if a state statute provides for service of process upon a foreign corporation doing business within the state by service upon a public officer, such service is invalid if it is not such as is calculated to give notice to the corporation. King Tonopah Mining Co. v. Lynch, 232 Fed. 485 (D. C, Nev., 1916) (service upon state official not charged with duty to notify corporation) ; Knapp v. jBulIock Tractor Co., 242 Fed. 543 (D. C, S. D. Cal., 1917) (like preceding case). Cf. Mutual Life Ins. Co. V. Spratley, 172 U. S. 602 (1899); Commercial Mutual Accident Co. v. Davis, 213 U. S. 245 (1909). " For a discussion of this theory, see Henderson, Position of Foreign Corpor- ations IN American Constitutional Law, Chap. V; 30 Harv. L. Rev. 676-96.
 * ^ The difficulties with the theory of implied consent are set forth in Henderson,
 * " Conversely, a foreign corporation is not bound by regulations which are so out-