International Shoe Co. v. State , 22 Wash. 2d 146 ( 1945 )

¹ Reported in 154 P.2d 801. The proceedings involved in this action were commenced by the department of unemployment compensation and placement, hereinafter referred to as the department, to recover contributions claimed to be due from International Shoe Company, hereinafter referred to as appellant, for the period of January 1, 1937, through December 31, 1941. No contention is made by appellant that the amount of the contributions found to be due by the commissioner of unemployment compensation and placement and the superior court of King county was not correct, if appellant is liable for any contributions.

Notice of assessment was personally served upon Edward S. Alley, a salesman employed by appellant, in King county, Washington, on October 10, 1941. On October 18th, appellant appeared specially before the department and moved to quash the service upon Mr. Alley upon the following grounds: (1) That service of the notice of assessment upon Mr. Alley was not good service on appellant. (2) That appellant is a corporation, organized and existing under and by virtue of the laws of Delaware, and is not engaged in doing business within the state of Washington; that it has no agent or other person within this state upon whom service of process may be made; that it is doing only interstate business. (3) That appellant is not an employer and does not furnish employment within the state of Washington, within the meaning of those terms as defined by the unemployment compensation act.

Appellant requested a hearing, and pursuant to such request the matter came on for hearing before the appeal tribunal upon stipulated facts, supplemented by the testimony of Edward Alley. On January 25, 1943, the appeal tribunal rendered its decision, wherein it denied appellant's motion to quash and held the commissioner was authorized to recover from appellant for the period above mentioned contributions in the sum of $3,159.24.

A petition was duly filed with the commissioner to review the decision of the appeal tribunal. The commissioner thereafter reviewed such decision, and on February 11, 1943, entered an order confirming the decision of the appeal tribunal.

An appeal was taken from the decision of the commissioner to the superior court for King county, which thereafter, on November 10, 1943, entered judgment affirming the decision of the commissioner. This appeal is from the judgment entered by the superior court, and as a basis for such appeal appellant assigns error upon the finding of the trial court that appellant was doing business in Washington so as to be subject to process; upon the finding that Edward S. Alley had sufficient capacity to represent appellant so that service of process could be made upon him; upon the finding that the commissioner had jurisdiction to levy an assessment for contributions to the unemployment compensation fund; and upon the entry of judgment against appellant.

While we do not believe the testimony of Mr. Alley adds anything to the stipulated facts, we mention his testimony because the record shows the facts to be considered were those stipulated, plus the testimony of Mr. Alley.

The pertinent facts may be stated as follows: Appellant is a Delaware corporation, having its principal place of business in St. Louis, Missouri. Its principal business consists of the manufacture and sale of boots, shoes, and other footwear. It maintains places of business where manufacturing is carried on, and from which its merchandise is sold, in the states of Missouri, Arkansas, Illinois, Kentucky, North Carolina, Pennsylvania, New York, and New Hampshire. Its merchandise is sold in Washington through its several selling divisions or branches, the following branches being the only ones doing any sort of business with residents of the state of Washington: Roberts, Johnson Rand, Peters, Friedman-Shelby and Specialty. So far as appears from the record, these branches seem to be no more than designated sales units to handle appellant's products.

Appellant has no place of business in this state. It makes no contracts either for sale or purchase in this state. It maintains no stock of merchandise in this state, and makes no deliveries of merchandise in this state, and makes no deliveries of merchandise in intrastate commerce in this state.

In its business in the state of Washington for four years, 1937 through 1940, appellant employed from eleven to thirteen salesmen, all of whom resided in the state, and whose principal activity was the solicitation of orders for appellant's merchandise to be delivered in this state. Commissions paid to these salesmen for the four years indicate the volume and extent of business carried on by the salesmen for appellant. It is evident that this business did not consist of isolated transactions, but was a continuous course of business, the total commissions paid for 1937 being $36,098.19, for 1938, $32,075.63, for 1939, $33,846.44, and for 1940, $31,879.19, or a total for commissions for the four year period, $133,899.45.

These salesmen are under the direct supervision and control of sales managers, the latter being located in St. Louis. Each salesman has a designated territory within the state. Salesmen have a sample line consisting of one shoe of a pair. These samples belong to appellant and are given to the salesmen to display to prospective purchasers. Some of the salesmen rent sample rooms in business buildings, and some maintain no permanent sample rooms but rent rooms in hotels or business buildings in the various cities in their territory. The expense of such rental is paid by the salesmen, and they are later reimbursed by appellant. The authority of the salesmen is limited to exhibiting to merchants who are probable buyers samples of merchandise for which they solicit orders, endeavoring to procure orders on prices and terms fixed by appellant. If orders are obtained, the salesmen transmit them to appellant's office in St. Louis for acceptance or rejection. If the orders are accepted by appellant, the merchandise called for by such orders is shipped f.o.b. shipping point, from outside the state of Washington. No salesman has authority to bind appellant with any contract or to finally conclude any transaction in its behalf, nor can he make collections. Salesmen are not permitted to engage in an independently established trade, occupation, profession, or business of the same nature as is involved in their employment by appellant.

The only thing which it can be said Mr. Alley's testimony added to the stipulated facts may be gathered from his somewhat detailed account of the conventions held each year at St. Louis, which the salesmen are required to attend, their expenses being paid by appellant. From this testimony, it appears that a regular program is followed by appellant through this contact with its salesmen, to keep the company's business at a high level, to eliminate, so far as possible, difficulties arising in the particular territories, and to discuss the credit of Washington purchasers and customers with whom appellant is doing business. The company's business in this state is apparently discussed in great detail, and the salesmen are instructed as to the line of shoes they are to offer to the trade, the method of selling, and conditions of selling. They also receive information with reference to construction and new types and kinds of shoes which are to be offered to the trade.

Rem. Supp. 1941, § 9998-114c, provides:

"At any time after the Commissioner shall find that any contribution or the interest thereon have become delinquent, the Commissioner may issue a notice of assessment specifying the amount due, which notice of assessment shall be served upon the delinquent employer in the manner prescribed for the service of summons in a civil action, except that if the employer cannot be found within the state, said notice will be deemed served when mailed to the delinquent employer at his last known address by registered mail. . . ."

Rem. Rev. Stat., § 226 [P.C. § 8438], provides the manner of service of summons in civil actions. Subdivision 9 of § 226 provides that, if the suit be against a foreign corporation doing business within this state, the summons shall be served by delivery of a copy thereof to any agent, cashier, or secretary thereof.

In the instant case, both methods of service provided for by § 9998-114c, supra, were followed.

The principal question with which we are here concerned is whether or not appellant was doing business in the state of Washington so as to make it amenable to process of the courts of this state.

Before discussing some of the authorities dealing with the question last above stated, we desire to call attention to the fact that we shall first consider the specific question of whether or not appellant is so doing business within this state as to make it amenable to process by the courts of this state, and not whether it is so doing business as to require it, in certain instances, to pay the annual license fee required by our statutes, as was the case in Smith Co. v. Dickinson, 81 Wash. 465,142 P. 1133. It is true that in the cited case the court does not point out the distinction above made, but the facts upon which the opinion is based and the statutes cited clearly show that the court was there considering the question of whether or not Smith Co., a foreign corporation, was so doing business within this state as to require it to plead and prove that it had paid the annual license fee required by the statute before it could bring an action in this state.

We are of the opinion the Dickinson case, supra, is not contrary to the conclusion we have reached on the question here presented, nor have we been cited to any case decided by this court which, in our opinion, is contrary to such conclusion, when the distinction above pointed out is kept in mind, a distinction which is clearly made in the leading and often cited case of Tauza v. Susquehanna Coal Co., 220 N.Y. 259,115 N.E. 915, to which further reference will be made.

[1] We have in several cases stated that the mere bringing of an action in this state by a foreign corporation, does not constitute doing business in this state so as to require such corporation to pay an annual license fee. Lilly-Brackett Co. v.Sonnemann, 50 Wash. 487, 97 P. 505; Smith Co. v.Dickinson, 81 Wash. 465, 142 P. 1133; Alaska Pac. Nav. Co. v.Southwark Foundry Machine Co., 104 Wash. 346, 176 P. 357;Singmaster v. Hall, 98 Wash. 134, 167 P. 136; St. Anthony Dakota Elevator Co. v. Turner, 132 Wash. 419, 232 P. 288;Procter Gamble Co. v. King County, 9 Wash. 2d 655,115 P.2d 962. In the case last cited, we stated:

"We have consistently held that statutes providing that no corporation shall commence any action in this state without alleging and proving that it has paid its annual license fee, refer only to corporations doing business within this state, and do not apply to a nonresident corporation simply bringing an action in this state, as that does not constitute doing business within this state. Lilly-Brackett Co. v. Sonnemann, 50 Wash. 487,97 P. 505; Smith Co. v. Dickinson, 81 Wash. 465,142 P. 1133."

The above-cited cases are not in point from a factual standpoint, nor are they in point when the question to be considered is whether or not the foreign corporation was doing business in this state so as to be amenable to process.

Later in this opinion we shall deal with the question of whether or not the exaction of the payment required under the unemployment compensation act is an unlawful burden upon interstate commerce.

We here also desire to emphasize that in reaching the conclusion drawn on this first question, we have not alone considered the volume of business transacted, but we have considered all the facts stipulated.

We desire first to call attention to an article in volume 35 of Michigan Law Review, under the general heading "Comments," on page 969. This article states the early theory as expressed by Justice Taney "that a corporation can have no legal existence out of the boundaries of the sovereignty by which it is created," and some of the reasons why the several states have passed statutes providing for service of process upon foreign corporations which are "doing business" within the state. The article further states:

"The factor of ``doing business' within a state was not recognized as establishing a new basis for jurisdiction but was explained upon the theory of consent. The reasoning was that since the state had the power to refuse admission of foreign corporations which were not agents of the Federal Government or corporations engaged in interstate commerce, the state could as an implied condition to the corporation's entering the state make a foreign corporation amenable to process there. The corporation's consent to the statutory condition was implied upon its entering the state. Later another theory, called the ``actual presence' theory, was developed. Under this theory it was said that if a corporation was ``doing business' in a state it must be present in that state. The use of these two fictional theories, which extended the law of natural persons to make it adaptable to corporations, is largely responsible for the confusion occurring in this field."

The article further refers to and discusses three leading cases on this question, namely, Green v. Chicago B. Q.R. Co.,205 U.S. 530, 51 L. Ed. 916, 27 S. Ct. 595, which holds that the corporation was not "doing business" in Pennsylvania, andInternational Harvester Co. v. Kentucky, 234 U.S. 579,58 L. Ed. 1479, 34 S. Ct. 944, and Tauza v. Susquehanna Coal Co.,220 N.Y. 259, 115 N.E. 915, which hold that the respective corporations were doing business in the state where process was served.

Typical of the early cases based upon the consent theory isLafayette Ins. Co. v. French, 59 U.S. 404, 15 L. Ed. 340.

The corporate presence theory was apparently formulated by Mr. Justice Brandeis in the case of Philadelphia Reading R. Co. v.McKibbin, 243 U.S. 264, 61 L. Ed. 710, 37 S. Ct. 280, in these words:

"A foreign corporation is amenable to process to enforce a personal liability, in the absence of consent, only if it is doing business within the State in such manner and to such extent as to warrant the inference that it is present there." (Italics ours.)

In People's Tobacco Co. v. American Tobacco Co., 246 U.S. 79,62 L. Ed. 587, 38 S. Ct. 233, the following general rule was announced:

"The general rule deducible from all our decisions is that the business must be of such nature and character as to warrant the inference that the corporation has subjected itself to the local jurisdiction, and is by its duly authorized officers or agents present within the State or district where service is attempted."

In State ex rel. Columbia Broadcasting Co. v. Superior Court,1 Wash. 2d 379, 96 P.2d 248, we cited with approval the general rule as above stated, but in view of what was stated in this same case in 5 Wash. 2d 711, 105 P.2d 70, the decision in 1 Wn.2d cannot be considered as authority, other than as it expresses the opinion of the judges who signed that opinion.

The leading case on the question of what constitutes doing business within a state by a foreign corporation so as to justify the courts of that state in taking jurisdiction of complaints against it, is International Harvester Co. v. Kentucky,234 U.S. 579, hereinbefore referred to. The case presented the question of the sufficiency of the service of process on an alleged agent of the Harvester Co. in a criminal proceeding in a county court of Kentucky in which an indictment had been returned against the Harvester Co. for an alleged violation of the anti-trust laws of Kentucky. It is conceded in the cited case that whether the person upon whom process was served was one designated by the law of Kentucky as an agent to receive summons on behalf of the company, was a question within the province of the court of appeals of Kentucky to finally determine. The court stated the first question to be determined was whether, under the circumstances shown in that case, the Harvester Co. was carrying on business in Kentucky in such a manner as to justify the courts of that state in taking jurisdiction of complaints against it. The opinion states:

"For some purposes a corporation is deemed to be a resident of the State of its creation, but when a corporation of one State goes into another in order to be regarded as within the latter it must be there by its agents authorized to transact its business in that State. The mere presence of an agent upon personal affairs does not carry the corporation into the Foreign State. It has been frequently held by this court, and it can no longer be doubted that it is essential to the rendition of a personal judgment that the corporation be ``doing business' within the State. . . . each case must depend upon its own facts, and their consideration must show that this essential requirement of jurisdiction has been complied with and that the corporation is actually doing business within the State."

The facts upon which the court determined that the corporation was doing business in Kentucky were as follows:

"``Travelers negotiating sales must not hereafter have any headquarters or place of business in that State, but may reside there.

"``Their authority must be limited to taking orders, and all orders must be taken subject to the approval of the general agent outside of the State, and all goods must be shipped from outside of the State after the orders have been approved. Travelers do not have authority to make a contract of any kind in the State of Kentucky. They merely take orders to be submitted to the general agent. If any one in Kentucky owes the Company a debt, they mayreceive the money, or a check, or a draft for the same but they do not have any authority to make any allowance or compromise any disputed claims. . . . All contracts of sale must be made f.o.b. from some point outside of Kentucky and the goods become the property of the purchaser when they are delivered to the carrier outside of the State. Notes for the purchase price may be taken and they may be made payable at any bank in Kentucky. All contracts of any and every kind made with the people of Kentucky must be made outside of that State, and they will be contracts governed by the laws of the various States in which we have general agencies handling interstate business with the people of Kentucky.'" (Italics ours.)

The opinion states:

"Upon this question the case is a close one, but upon the whole we agree with the conclusion reached by the Court of Appeals, that the Harvester Company was engaged in carrying on business in Kentucky. We place no stress upon the fact that the Harvester Company had previously been engaged in doing business in Kentucky and had withdrawn from that State for reasons of its own. . . . Here was a continuous course ofbusiness in the solicitation of orders which were sent to anotherState and in response to which the machines of the HarvesterCompany were delivered within the State of Kentucky. This was acourse of business, not a single transaction. The agents not only solicited such orders in Kentucky, but might there receive payment in money, checks or drafts. They might take notes of customers, which notes were made payable, and doubtless were collected, at any bank in Kentucky. This course of conduct of authorized agents within the State in our judgment constituted a doing of business there in such wise that the Harvester Company might be fairly said to have been there, doing business, and amenable to the process of the courts of the State." (Italics ours.)

We call attention at this point to the fact that while in the cited case the court stated the agents might receive payment in money, checks, or drafts, and might take notes of customers, payable at Kentucky banks, the court did not emphasize these latter facts in holding that the company was carrying on acontinuous course of business.

The cited case distinguishes the case of Green v. Chicago, B. Q.R. Co., 205 U.S. 530, 51 L. Ed. 916, 27 S. Ct. 595, often cited to sustain the contention that a foreign corporation is not doing business within a state where it appears that in substance such business consisted of nothing more than the solicitation of orders.

Some three years after the decision in the InternationalHarvester Co. case, supra, Mr. Justice Day, who wrote the opinion in that case, wrote the opinion in the case of People'sTobacco Co. v. American Tobacco Co., 246 U.S. 79, supra. While we are of the opinion, from an examination of the cited case, that the decision might well have been sustained upon the theory that the authority of Irby, the agent of American Tobacco Co. upon whom service was attempted to be made, had been revoked prior to the time of such attempted service, yet the court, as disclosed by the opinion, did state that the American Tobacco Co. was selling goods in Louisiana to jobbers and sending its drummers into that state to solicit orders from the retail trade, to be turned over to the jobbers, the charges being made by the jobbers to the retailers. These agents were not domiciled in the state and did not have the right or authority to make sales on account of the defendant company, collect money, or extend credit for it. The court, after the statement hereinabove referred to relative to the attempted service on an unauthorized agent, further states:

"Upon the broader question, we agree with the District Court that the American Tobacco Company at the time of the attempted service was not doing business within the State of Louisiana. The question as to what constitutes the doing of business in such wise as to make the corporation subject to service of process has been frequently discussed in the opinions of this court, and we shall enter upon no amplification of what has been said. Each case depends upon its own facts. The general rule deducible from all our decisions is that the business must be of such nature and character as to warrant the inference that the corporation has subjected itself to the local jurisdiction, and is by its duly authorized officers or agents present within the State or district where service is attempted. . . .

"As to the continued practice of advertising its wares in Louisiana, and sending its soliciting agents into that State, as above detailed, the agents having no authority beyond solicitation, we think the previous decisions of this court have settled the law to be that such practices did not amount to that doing of business which subjects the corporation to the local jurisdiction for the purpose of service of process upon it."

The court, after referring to the International Harvester case, supra, held that the district court properly concluded that the attempted service on Irby should be quashed.

From the cited cases, we reach the conclusion that, while mere solicitation of business within a state by the agents of a foreign corporation does not constitute doing business so as to make the corporation amenable to process by the courts of that state, solicitation, together with certain other acts, will be sufficient to render the corporation subject to process. So our inquiry now is: What additional acts will be deemed sufficient for this purpose?

In 1917, Justice Cardozo (then judge of the New York court) wrote the often cited opinion in the case of Tauza v.Susquehanna Coal Co., 220 N.Y. 259, 115 N.E. 915. The court sums up the facts in the cited case in the following words:

"In brief, the defendant maintains an office in this state under the direction of a sales agent, with eight salesmen, and with clerical assistants, and through these agencies systematically and regularly solicits and obtains orders which result in continuous shipments from Pennsylvania to New York.

"To do these things is to do business within this state in such a sense and in such a degree as to subject the corporation doing them to the jurisdiction of our courts."

It might be added that all orders secured through the New York office were subject to confirmation at the home office in Pennsylvania. No person connected with the New York office had authority to receive payment for shipments of coal, or to receive or endorse checks. At the conclusion of a discussion of theInternational Harvester case, supra, the court stated:

"That case goes farther than we need to go to sustain the service here. It distinguishes Green v. Chicago, B. Q. Ry.Co. (205 U.S. 530) where an agent in Pennsylvania solicited orders for railroad tickets which were sold, delivered and used in Illinois. The orders did not result in a continuous course ofshipments from Illinois to Pennsylvania. The activities of theticket agent in Pennsylvania brought nothing into that state. In the case at bar, as in the International Harvester case, there has been a steady course of shipments from one state into the other. The business done in New York may be interstate business, but business it surely is." (Italics ours.)

The court further stated:

"In construing statutes which license foreign corporations to do business within our borders we are to avoid unlawful interference by the state with interstate commerce. The question in such cases is not merely whether the corporation is here, but whether its activities are so related to interstate commercethat it may, by a denial of a license, be prevented from beinghere. . . . If in fact it is here, if it is here, not occasionally or casually, but with a fair measure of permanence and continuity, then, whether itsbusiness is interstate or local, it is within the jurisdictionof our courts . . . The nature and extent of businesscontemplated by licensing statutes is one thing. The nature andextent of business requisite to satisfy the rules of privateinternational law may be quite another thing. . . . Unless a foreign corporation is engaged in business within the state, it is not brought within the state by the presence of its agents. But there is no precise test of the nature or extent of the business that must be done. All that is requisite is that enoughbe done to enable us to say that the corporation is here." (Italics ours.)

The holding in the Tauza case may be boiled down to this: That where there is a systematic and regular solicitation of orders by an agent or agents of the corporation, resulting in a continuous shipment of goods into the state where the agents are operating, together with the maintenance of a permanent office in the state by the corporation, the corporation can be said to be doing business in that state so as to make it amenable to process by the courts of such state.

The cases dealing with the question here presented are multitudinous. While it is probably true that most of the cases which hold the corporation was doing business in the state so as to make it amenable to process have some slight activity on the part of the agent in addition to the solicitation of orders resulting in a continuous flow of the corporation's products into the state, yet it seems to us the basic fact upon which the courts have determined that the corporation was doing business was the regular and systematic solicitation of orders by the agent, resulting in the continuous flow of the corporation's products into the state by means of interstate carriers.

The following are typical cases holding that the corporation was doing business in the state where service was attempted to be made. From our discussion of these cases will appear what facts, in addition to mere solicitation, the courts considered in determining that the corporation was doing business in the state. It will also appear from some of the decisions that a regular and systematic course of solicitation of orders by the agent of the corporation, resulting in a continuous flow of the corporation's products into the state, should be and is sufficient to warrant the court in holding the corporation was doing business in the state. Many of these cases cite and rely upon the International Harvester case. Lamont v. Moss Cigar Co., 218 Ill. App. 435; Hormel Co. v. Ackman, 117 Fla. 419, 158 So. 171, where in addition to soliciting orders the agent made some collections; Wheeler v.Boyer Fire Apparatus Co., 63 N.D. 403, 248 N.W. 521, where the agent's authority consisted in soliciting orders and making collections (this case refers to and quotes from theInternational Harvester case, supra, Tauza v. Susquehanna CoalCo., supra, and American Asphalt Roof Corp. v. Shankland,205 Iowa 862, 219 N.W. 28, of which more will be said later); Dobsonv. Maytag Sales Corp., 292 Mich. 107, 290 N.W. 346;International Shoe Co. v. Lovejoy, 219 Iowa 204, 257 N.W. 576, wherein the court stated:

"It appears from the foregoing recital of the facts that, in addition to the solicitation of orders from customers for shoes, Sommerhauser sought to induce Buttenhoff and others to engage in the shoe business. This appears to have been a part of his duties as a salesman. He was authorized to receive checks in payment of accounts and to transmit the same to petitioner, but not to cash the same or to receive money. Petitioner did not, in a general sense at least, maintain an office or place of business in this state. It did, however, permanently maintain a sample or display room in a hotel in Des Moines which was visited by actual or prospective customers to whom sales of merchandise were made. This method of transacting the business amounted to something more than the mere solicitation of orders. The practice of aiding, if not inducing, others to establish stores and engage in the shoe business in this state also amounted to more than the mere solicitation of orders."

In the case of American Asphalt Roof Corp. v. Shankland,205 Iowa 862, 219 N.W. 28, hereinbefore referred to, the defendant was a foreign corporation having its principal place of business in Kansas City, Missouri. The agent on whom service was made was a traveling salesman, with authority to solicit orders which were forwarded to the home office for acceptance. He had no authorityto accept orders, make contracts, receive payment of any kind, andmaintained no office or permanent place of business within thestate of Iowa. The defendant furnished him with an automobile and paid the expenses of its operation. The agent resided in Des Moines and frequently sought retail customers to patronize the dealers to whom he made sales. The court, in reaching its decision that the corporation was doing business in Iowa, relied principally upon the Tauza and the International Harvester cases, supra. After quoting from the latter case, the court stated:

"The continuous course of business referred to was thesolicitation of orders, which were sent to another state, and inresponse to which the machines of the Harvester Company weredelivered within the state of Kentucky. The court said, ``This was a course of business, — not a single transaction.' It is true that the above language is followed by a reference to the fact that the agents were authorized to receive notes, drafts, checks, money, etc., and transmit the same to the Harvester Company. Such transactions were, however, merely formal acts, and involved the exercise of no discretion on the part of the agent, and were always referable to transactions closed by the approval of the order, and, no doubt, generally by the delivery of the machines.These transactions are not given significance in what the courtterms a continuous course of business." (Italics ours.)

It is apparent that the Iowa court was of the opinion the court in the International Harvester case attached no particular importance to the fact that the agent was authorized to receive notes, checks, drafts, etc. This is evident from the concluding words in the opinion of the Shankland case:

"We recognize that the question is by no means free from difficulty; but it seems to us that the facts disclosed by the record establish that petitioner was, and has been for many years, engaged in a systematic and continuous course of businessin the solicitation of orders and the delivery and shipment of merchandise to numerous customers, new and long established, and that such conduct constitutes doing business in this state within the meaning of that term as used in Section 11072 and as construed and interpreted by the decisions of the Supreme Court of the United States. If the corporation was doing business in this state, it will hardly be questioned that Killingsworth [the agent] was a proper person upon whom service might be had." (Italics ours.)

The case of West Pub. Co. v. Superior Court, 20 Cal. 2d 720,128 P.2d 777, is, in our opinion, a well-considered case. Many cases are cited, among them Green v. Chicago, B. Q.R.Co., supra, and People's Tobacco Co. v. American Tobacco Co.,supra, often cited to sustain the contention that a foreign corporation is not doing business in the state where service of process was attempted to be made. It also cites, and to a great extent relies on, the Tauza and International Harvester cases, supra, and recognizes that the adjudicated cases since the International Harvester decision have not been in complete agreement as to the precise factors additional to meresolicitation which motivated the court in the Harvester case to sustain the jurisdiction of the Kentucky court. The case goes on to say that, while the decision in People's Tobacco Co. v.American Tobacco Co., supra, seems to have stressed the fact that the agents in the Harvester case were authorized to receive payments in Kentucky, other leading authorities have viewed the quantity and continuity of the solicitation of business in Kentucky as the controlling factor of the decision, rather than the mere additional circumstances of collecting money; citing, as sustaining this latter theory, Tauza v.Susquehanna Coal Co., supra, and American Asphalt Roof Corp. v.Shankland, supra.

A good discussion of the question here presented will be found in Dahl v. Collette, 202 Minn. 544, 279 N.W. 561, where practically all the leading cases decided up to that time (April, 1938) are cited and discussed. We quote from the cited case:

"Courts are agreed that solicitation, if the only evidence of the visitation of a foreign corporation, will not warrant a finding that the corporation is doing business so as to be subject to process. [Citing among other authority Green v. C.B. Q. Ry., supra.] This is not to say that solicitation, regularly and systematically conducted, within the jurisdiction is without import in deciding whether the corporation is doing business therein. Its simple meaning is that solicitation alone without other corroborating circumstances is not of sufficient strength to sustain the inference that the corporation is present. . . . Solicitation aided by further manifestations of corporate presence no one of which is singly capable of carrying the weight of the inference will warrant the conclusion that it is doing business here. . . .

"Solicitation in regular course of business, together with acceptance and performance of the contract within the state, will give ample ground for the conclusion of corporate presence. . . . Or if the solicitation results in a continuous flow of goods into the state and if payment therefor is made within the state, these factors altogether support the inference that the corporation is present doing business. . . . It has also been held that ifregular and systematic solicitation concurs with a continuousflow of goods into the state the inference is permissible. . . . Solicitation joined with adjustment of complaints as a part of the ordinary course of business also sustains the inference. . .. The substance of the cases seems to be that although the rule against the sufficiency of solicitation alone still persists, ``it readily yields to slight additions.'" (Italics ours.)

The court then states that the facts show that:

"There was the solicitation of orders, which although not incessant in the sense that it was being conducted here at all times, yet was regular and systematic rather than incidental and haphazard. The volume of its products coming into the state as the direct result of this solicitation, while perhaps inconsiderable in relation to the total of its national business, was nevertheless substantial. The flow of its manufactures into the state appears to have been constant and continuous. The compromise and adjustment of disputes with its customers appears also to have been habitually carried on here. Added to these circumstances is the fact of the maintenance of display and demonstration rooms at conventions attended by present and prospective customers under the management of an officer or agent of appellant. This occurrence is not of great weight, neither is it quite without significance. . . .

"While it may be admitted that no one of the factors relied upon by respondents to demonstrate the corporate presence within the state of appellant is capable of sustaining that inference, and while the courts in some instances, as has been pointed out, are divided as to the sufficiency of any two of them, we are confident that their cumulative strength is ample to support the conclusion we reach that appellant was doing business and was therefore present within this state at the time service of the summonses and complaints was made on Collette as its agent."

The Wisconsin court in In re Petition of Northfield Iron Co.,226 Wis. 487, 277 N.W. 168, places the same interpretation upon the International Harvester case as did the Iowa court in theShankland case and the New York court in the Tauza case, saying:

"It is our conclusion that so far as the question of state power is concerned, the International Harvester Co. case,supra, must be taken to make valid a statute by a state providing for service upon the soliciting agent of a foreign corporation whose only activity aside from a solicitation of orders within the state is the filling of these orders through the instrumentality of interstate commerce."

In the case of Harbich v. Hamilton-Brown Shoe Co., 1 F. Supp. 63, the Federal district court for the southern district of Texas had before it a set of facts very much like those in the instant case. In the cited case, service was made upon one Dan Smith, a salesman for the shoe company in the state of Texas. So far as the opinion indicates, Dan Smith had authority only to solicit orders, which he did in a regular and systematic way by appearing at customer's stores and offering samples for the customer's inspection. Smith had no authority on behalf of the shoe company to sell merchandise or otherwise bind the shoe company, but was solely a soliciting agent. The orders were taken subject to acceptance by the shoe company at its home office in St. Louis, Missouri. When the orders were accepted, the goods were shipped from outside the state of Texas in interstate commerce. The court held the shoe company was doing business in Texas, and that service on Smith was sufficient service on the company.

A very recent Federal case dealing with this question is Frenev. Louisville Cement Co., 77 U.S. App. D.C. 129,134 F.2d 511, decided January 25, 1943. In the cited case, the defendant Cement Co. was a Kentucky corporation, having its principal place of business at Louisville, Kentucky. It maintained no office or place of business in the District of Columbia. Its business was the manufacture and sale of cement and cement products. Lovewell, the agent upon whom service was had, resided in a suburb of Washington. His telephone number, which was displayed, together with his home address, his name and that of defendant, upon his business card, was listed in the Washington directory. Lovewell had authority to solicit orders for defendant's products, and his territory comprised all of Maryland, except the two western counties, the District of Columbia, and the eastern part of Virginia. He spent two thirds or three fourths of his time in Washington, which he said was "the biggest market in my territory." The volume of business done in Washington was large. Lovewell had no authority to conclude contracts or make binding sales. When he received orders, he forwarded them to the home office in Louisville, where they were accepted or rejected. Shipments on orders accepted were made in interstate commerce to building supply dealers in the vicinity of the job, who in turn supplied them to the contractors. Lovewell frequently visited jobs in course of construction where defendant's products were being used, and on these occasions he would note the manner in which the products were being installed or used, and if any difficulties were being experienced, he would make suggestions as to how to overcome them. He would also go over any complaints and report them to the home office, but he had no authority to finally make adjustments or compromises. We quote from the opinion, which was written by Justice Rutledge, and which we think contains a sound criticism of the solicitation rule:

"The tradition has grown that personal jurisdiction of a foreign corporation cannot be acquired when the only basis is ``mere solicitation' of business within the borders of the forum's sovereignty. And this is true, whether the solicitation is only casual or occasional or is regular, continuous and long continued.

"The tradition crystallized when it was thought that nothing less than concluding contracts could constitute ``doing business' by foreign corporations, an idea now well exploded. It is now recognized that maintaining many kinds of regular business activity constitutes ``doing business' in the jurisdictional sense, notwithstanding they do not involve concluding contracts. In other words, the fundamental principleunderlying the ``doing business' concept seems to be themaintenance within the jurisdiction of a regular, continuouscourse of business activities, whether or not this includes thefinal stage of contracting. . . .

"Furthermore, since the tradition crystallized, other developments in the law of personal jurisdiction have cast doubt upon its validity. These in general have expanded the scope of jurisdictional power over the persons of nonresidents, including foreign corporations. It is still true, generally speaking, that mere casual and occasional acts do not furnish a sufficient basis for assertion of jurisdiction of the person in cases of nonresidents. But the nonresident motorists' statutes, which are applicable to foreign corporations, and the fact they have been so widely enacted and sustained, show two things among others. The first, like the cases sustaining jurisdiction upon a basis of ``solicitation plus,' is that contracting, casually or continuously, is not essential for jurisdictional purposes, nor is negotiation, solicitation, or other activity looking toward the formation of contracts. The second is that some casual or even single acts done within the borders of the sovereignty may confer power to acquire jurisdiction of the person, provided there is also reasonable provision for giving notice of the suit in accordance with minimal due process requirements. . . . In general the trend has been toward a wider assertion of power over nonresidents and foreign corporations than was considered permissible when the tradition about ``mere solicitation' grew up.

". . . But when jurisdiction has been extended to include some types or kinds of occasional acts and nearly all kinds of continuous operations, the rule which nullifies judicial power when a foreign corporation engages continuously and regularly in ``mere solicitation' is, to say the least, anomalous. . . .Solicitation is the foundation of sales. Completing the contract often is a mere formality when the stage of ``selling' the customer has been passed. No business man would regard ``selling,' the ``taking of orders,' ``solicitation' as not ``doing business.' The merchant or manufacturer considers these thingsthe heart of business. It is perfectly possible, under the ``mere solicitation' rule, for a foreign corporation to confine its entire market to a single jurisdiction, yet by carefully limiting its activities there to the soliciting phase, to force each of its customers having cause for legal redress to seek it in the foreign forum of incorporation. By careful segregation of the ``selling' phase in the place of market, a substantially complete immunity to liability, in the practical sense, could be created.

"It would seem, therefore, that the ``mere solicitation' rule should be abandoned when the soliciting activity is a regular,continuous and sustained course of business, as it is in this case. It constitutes, in the practical sense, both ``doing business' and ``transacting business,' and should do so in the legal sense. Although the rule has not been clearly and expressly repudiated by the supreme court, its integrity has been much impaired by the decisions which sustain jurisdictions when verylittle more than ``mere solicitation' is done." (Italics ours.)

While it is apparent that the court was of the opinion that the mere solicitation rule should be abandoned when the soliciting activity is a regular, continuous, and sustained course ofbusiness, the court did not deem it necessary "to take the final step in repudiation in this case, since the facts are sufficient to bring it within the ``solicitation plus' rule."

Justice Edgerton, in a concurring opinion in the cited case, stated:

"It has been suggested that ``the existence of a jurisdiction to determine the personal liability of a corporation . . . depends on the reasonableness of its exercise' and that ``if a foreign corporation voluntarily does business within the state it is bound by reasonable regulations of that business imposed by the state . . . because it is as reasonable and just to subject the corporation to those regulations as though it had consented.' In the normal course of business appellee's agent induced appellants, in the District, to buy its product. They bought it in the District, for use in the District, from a District dealer to whom appellee had sold it. They used it in the District. The alleged defect appeared there and the alleged cause of action presumably arose there. Appellants appear to reside there. I think it is reasonable and just that they should be allowed to enforce their claim there."

We find a statement by this court in the case of Macario v.Alaska Gastineau Mining Co., 96 Wash. 458, 165 P. 73, quite in accord with the view expressed by Justice Edgerton:

"We think an examination of the authorities will show that the place of the arising of the cause of action has been generally regarded as of controlling force by the courts in determining the question of a defendant foreign corporation being subject to the process of the court wherein recovery is sought, whenever the question of such foreign corporation doing business generally in the state in which it is sought to be sued is one of doubt."

In the case of Grams v. Idaho Nat. Harvester Co., 105 Wash. 602,178 P. 815, the court held that the defendant, an Idaho corporation, was doing business in this state and was amenable to process of the courts of this state. In addition to selling combined harvesting machines in this state, the company kept on hand, in a warehouse in this state, a large quantity of repair parts for the machines. Many of these articles were sold by the warehouse company as the property of the Harvester Co., the former accounting to the latter for all sales made.

In the case of State ex rel. Kerr Glass Mfg. Corp. v. SuperiorCourt, 166 Wash. 41, 6 P.2d 368, we held that the solicitation of orders in this state by one Huch, a resident of this state, coupled with the fact that the Glass Co., a Nevada corporation, kept some of its goods in storage in this state, constituted doing business. Huch had no authority to accept orders, but all of the orders were taken subject to approval by the Glass Co. at its home office in Oklahoma. The Glass Co. completed delivery when the products were turned over to the transportation company in Oklahoma. Bills of lading, invoices, and statements were sent from the Glass Co. direct to the buyer. Remittances were made direct from buyer to seller. Huch made no collections and had nothing to do with extending credit.

[2] Summing up the facts in the instant case, we find that the salesmen are all residents of the state of Washington, and have definitely defined territory assigned to them. There is no storage or warehousing of goods. The activities of these agents of appellant consist of the solicitation of orders and the display of samples, sometimes in permanent display rooms. Salesmen are required to spend certain time each year in St. Louis for the purpose of receiving direct personal instructions as to their duty, as to the line of shoes which they are to offer to the trade, the method of selling, and information with reference to the construction of new types and kinds of shoes which are to be offered to the trade. Some of the salesmen rent sample rooms in business buildings, and the expense of such rental and maintenance is paid by the salesmen, who are reimbursed on an expense account by appellant. There is a detailed program followed by the company through contact with the salesmen, to keep the company's business at a high level, to eliminate differences arising in the particular territory, and to discuss credit of Washington purchasers and customers with whom the company is doing business. As a result of the activities of these agents, there is a continuous flow of appellant's product into this state by means of interstate carriers. This course of action has been carried on over a period of years, by as many as thirteen salesmen, and the substantial volume of merchandise and the regularity of its shipment are clearly shown by the amount of commissions regularly earned by these resident salesmen.

In the case of Bankers' Holding Corp. v. Maybury, 161 Wash. 681,297 P. 740, this court adopted the following definition of business, as stated in Flint v. Stone Tracy Co., 220 U.S. 107,55 L. Ed. 389, 31 S. Ct. 342:

"``"Business" is a very comprehensive term, and embraces everything about which a person can be employed. . . . "That which occupies the time, attention, and labor of men for the purpose of a livelihood or profit."'"

It seems to us, after a consideration of the facts in this case and the authorities bearing on the question here presented, that the conclusion that appellant, through its agents, was doing business in this state so as to make it amenable to process, is inescapable, whether we follow the "corporate presence theory" or base our decision on the reasonableness of permitting the corporation to be sued in this state rather than forcing respondent to go to Missouri or Delaware to bring its action.

While we are of the opinion that the regular and systematic solicitation of orders in this state by appellant's agents, resulting in a continuous flow of appellant's product into this state by means of interstate carrier, is sufficient to constitute doing business in this state so as to make appellant amenable to process of the courts of this state, we are also of the opinion that there are additional activities shown which bring this case well within the solicitation plus rule.

On this question, appellant cites and relies on State ex rel.Paraffine Companies v. Wright, 184 Wash. 69, 49 P.2d 929, andBank of America v. Whitney Bank, 261 U.S. 171, 67 L. Ed. 594,43 S. Ct. 311. In the former case, the cause came before this court on an application for a writ of mandate to compel the Thurston county superior court to transfer the cause to King county. The application of the Paraffine Co. was based upon the claim that it transacted no business in Thurston county, had no office there, and that there was no person residing in Thurston county upon whom process against it could be served. It appears that there was no person or company in Thurston county having the relationship of agent to the Paraffine Co. All purchases made by Olympia customers of the company were made at the Seattle office, where the principal place of business of the company was located. The customers of the Paraffine Co. in Olympia handling its products did so as independent merchants, and not as agents. The case is not in point.

The factual situation in the second case above cited is so different from that in the instant case that it cannot be considered helpful herein.

[3] The second assignment of error in the case at bar is that Mr. Alley, upon whom service was made, was not such an agent as is contemplated by Rem. Rev. Stat., § 226 [P.C. § 8438]. In view of the conclusion reached by us on the first question presented, we are of the opinion this question can be briefly disposed of.

The entire business of appellant in the state of Washington was carried on by Mr. Alley and other agents having like authority. Subsection 9 of § 226 states that if the suit be against a foreign corporation doing business within this state, service may be made on "any agent."

We stated in Barrett Mfg. Co. v. Kennedy, 73 Wash. 503,131 P. 1161, that:

"The words of the statute ``any agent' were intended to have a broad meaning, and must be liberally construed to effectuate the legislative intent. While they may not include a day laborer or an employee who has no authority to represent the corporation in any way other than to discharge his daily task, they must be held to include all such agents as represent the corporation in either a general or a limited capacity." (Italics ours.)

See, also, Pacific Typesetting Co. v. InternationalTypographical Union, 125 Wash. 273, 216 P. 358.

It is interesting to note, in view of what we have said on the first question and in the consideration of the second, that in the last-cited case we quoted with approval the following statement found in Beach v. Kerr Turbine Co., 243 Fed. 706:

"``The tendency of legislation and of judicial decisions is and has been to make it easy to obtain jurisdiction of foreign corporations. As was said by Mr. Justice Gray in BarrowSteamship Co. v. Kane, 170 U.S. 100, . . . "The constant tendency of judicial decisions in modern times has been in the direction of putting corporations upon the same footing as natural persons in regard to the jurisdiction of suits by or against them."'"

On this question, we desire to again call attention to the following statement found in the case of Tauza v. SusquehannaCoal Co., supra:

"It is not necessary to show that express authority to accept service was given to the defendant's agent. His appointment to act as agent within the state carried with it implied authority to exercise the powers which under our laws attach to his position. . . . When a foreign corporation comes into this state, the legislature, by virtue of its control over the law of remedies, may define the agents of the corporation on whom process may be served. . . . If the persons named are true agents, and if their positions are such as to lead to a just presumption that notice to them will be notice to the principal, the corporation must submit. . . . The corporation is here; it is here in the person of an agent of its own selection; and service upon him is service upon his principal."

We do not deem further citation of authority necessary. We are of the opinion appellant's second assignment is without merit.

The remaining question is whether or not the imposition upon appellant of liability for contributions to the Washington unemployment compensation fund is an unconstitutional burden upon interstate commerce.

[4] We stated in Bates v. McLeod, 11 Wash. 2d 648,120 P.2d 472, that the contributions exacted under the unemployment compensation act constituted an excise tax upon the privilege of employing others. Employment is defined by Rem. Rev. Stat. (Sup.), § 9998-119 [P.C. § 6233-317] (g) (1), as follows:

"``Employment,' subject to the other provisions in this subsection, means service, including service in interstate commerce, performed for wages or under any contract of hire, written or oral, express or implied."

It would seem that the act clearly contemplates that contributions shall be paid into the unemployment compensation fund for such employment as we have in this case. Assuming that appellant is engaged in interstate commerce by reason of the fact that its agents take orders in this state for goods to be shipped from another state, yet we are of the opinion that the contributions exacted by the unemployment compensation act from appellant do not constitute an unlawful burden on interstate commerce. Probably to meet such an argument as is made by appellant herein, and to permit the unemployment compensation acts of the several states to cover the largest possible range of employees, Congress passed the following statute:

"No person required under a State law to make payments to an unemployment fund shall be relieved from compliance therewith on the ground that he is engaged in interstate or foreign commerce, or that the State law does not distinguish between employees engaged in interstate or foreign commerce and those engaged in intrastate commerce." 26 U.S.C. § 1606(a).

[5] Appellant contends that it is not required, under the state law, to make payments to the unemployment fund. We see no merit in this contention. Appellant is a foreign corporation having in its employ for several years more than eight individuals in each of twenty different weeks, performing services for it within this state, and so, under the plain terms of the act, is required to make contributions to the unemployment compensation fund.

[6] We are of the opinion Congress meant just what it said in the above-quoted statute, and that appellant's objection to payment of contributions on this ground is not tenable. But even without the act of Congress above set out, we do not think appellant could avoid liability upon this ground. The cases cited by appellant are cases dealing with taxes imposed on doing business, and the imposition of such taxes on corporations doing business in interstate commerce would clearly tend to burden that commerce.

This court pointed out the distinction between such cases (tax on engaging or continuing within this state in any business) and the instant case, in Paramount Pictures Dist. Co. v. Henneford,184 Wash. 376, 51 P.2d 385, where the court stated:

"It being an excise tax for the purpose of raising revenue, the act of the legislature imposing it was not passed in the exercise of the police power. Whether a law is enacted in the exercise of that power, depends upon whether the primary purpose is to raise revenue or to regulate industry."

[7] In the instant case, the act under consideration was passed in the exercise of the police power for the purpose of relieving distress in this state resulting from involuntary unemployment.

In the case of United Fruit Co. v. Department of Labor Industry, 344 Pa. 172, 25 A.2d 171, the Pennsylvania court held that the fruit company, engaged wholly in foreign commerce, with its principal office in Boston, but employing about three hundred persons within the state of Pennsylvania, was subject to the workmen's compensation act of Pennsylvania, although it required no authority from that state to carry on its business. The court then stated:

"The fact that an employe working within the State of Pennsylvania is engaged in interstate or foreign commerce does not necessarily take him outside the range of the Workmen's Compensation Act, which applies . . . ``to all accidents occurring within this Commonwealth.' It is well settled that, in the absence of federal legislation on the subject, a state may, without violating the commerce clause of the federal constitution, legislate concerning relative rights and duties of employers and employes while within its borders, although engaged in interstate commerce."

This view was sanctioned by the United States supreme court inValley S.S. Co. v. Wattawa, 244 U.S. 202, 61 L. Ed. 1084,37 S. Ct. 523. In the cited case, the steamship company was engaged in interstate commerce and contended that it was not liable under the Ohio workmen's compensation act. Answering this contention, Mr. Justice McReynolds, speaking for the court, said:

"We are asked to reverse the action of the Court of Appeals upon two grounds. First, because the company was engaged in interstate commerce and therefore could not be subjected to the Compensation Act without burdening such commerce contrary to the Commerce Clause of the Federal Constitution. . . .

"The first point relied upon is entirely without merit and inadequate to support our jurisdiction. In the absence of congressional legislation the settled general rule is that without violating the Commerce Clause the States may legislate concerning relative rights and duties of employers and employees while within their borders although engaged in interstate commerce."

In conclusion, we are of the opinion the unemployment compensation act does not impose a burden upon interstate commerce, in so far as the business of appellant is concerned.

The judgment of the trial court is affirmed.

BEALS, STEINERT, BLAKE, ROBINSON, MALLERY, and GRADY, JJ., concur.