Peoples Bank v. Secretary of the Commonwealth.

visions of the Act of Assembly approved May 10, 1889, P. L. 185, relating to the renewal of such charters, which requires that of the meeting of the stockholders called to consider the subject, notice by publication for three months in two newspapers published in the city or town where the bank is located should be given. When it appeared that the time was too short to give such notice by publication, due and proper corporate action was had by the board of directors as required by law, and they deemed it expedient to have such charter, corporate rights and franchises renewed, and did so decide, and did thereupon call a meeting of the stockholders to be held, as required by law, on Friday, Oct. 5, 1923. That at such meeting the notice by publication for three months was duly waived under the hands and seals of each and every of the stockholders of the bank; that on Friday, Oct. 5, 1923, at 5 o'clock P. M., the time fixed by said notice and waiver, the meeting of the stockholders of said bank was duly held, at which there attended in person or by proxy each and every holder of stock of said bank, and thereupon the said stockholders' meeting did consider the said proposition, and thereupon there was voted for the proposition to renew and extend the said charter, corporate rights and franchises each and every share of the capital stock of said bank.

That of these matters, as required by said act, due and proper certificate was made to the defendant, the Secretary of the Commonwealth, together with a statement of the condition of said bank or institution, upon the blank furnished by the proper officer, the said statement being made by the cashier and president under oath, attested by at least three of the board of directors, together with a copy of its charter, and reference to the act of assembly under which the same is incorporated, and all matters required by law. These matters were presented to the defendant, the Secretary of the Commonwealth, with a request that he refer the same to the Governor, the Attorney-General and the Secretary of Banking, who declined and refused so to do, for the reason that it did not appear that notice by publication for three months of the stockholders' meeting had been made.

It is further represented in said petition that unless the relief therein prayed for be granted, it will sustain great and irreparable injury, and that it is without other adequate and specific remedy at law. The petitioner prayed that a writ of mandamus issue to the defendant, the Secretary of the Commonwealth, commanding and requiring him, under the provisions of said act, to refer the said certificate, together with the matters therein submitted, as hereinbefore set forth, to the Governor, the Attorney-General and the Secretary of Banking for such further action as, in their opinion, is required under the circumstances.

Upon presentation to us of the said petition, we directed that a writ of mandamus in the alternative form issue to the said Clyde L. King, Secretary of the Commonwealth of Pennsylvania, commanding that he refer the said certificate of the action of the Peoples Bank for the renewal of its charter, corporate rights and franchises, together with the matters therewith submitted, or attached, and all in the foregoing petition referred to, to the Governor, the Attorney-General and the Secretary of Banking for such further action as, in their opinion, is required under the circumstances, or show cause why he should not do so, and by agreement of counsel this writ is made returnable forthwith.

To this order of the court awarding a writ of alternative mandamus the defendant makes return that the facts contained in the plaintiff's petition are true, but that he has refused to refer the said matters as requested because he is advised and believes that, under the law, the notice by publication for

Peoples Bank v. Secretary of the Commonwealth.

three months, required by said act, cannot be waived by the stockholders, but is intended for the benefit of the public.

After carefully considering the petition and answer in this case and the briefs of the learned Deputy Attorney-General and counsel for the plaintiff, we are of the opinion that the plaintiff is entitled to have the prayer of its petition granted, and that it is the duty of the Secretary of the Commonwealth, under the admitted facts in these pleadings, to refer the said certificate of the plaintiff, together with the matters therewith submitted, to the Governor and Attorney-General and the Secretary of Banking for such further action as, in their opinion, is required under the circumstances.

The regular term of the Court of Common Pleas being now in session, and it appearing that the charter of this bank expires with the close of business to-day, to wit, Oct. 8, 1923, we cannot at this time properly set forth the reasons for our conclusion, but will do so at a later period and as soon as the opportunity presents itself. We, therefore, direct a writ of peremptory mandamus to issue at once, requiring the Secretary of the Commonwealth to refer the said certificate, together with the matters therewith submitted, to the Governor, the Attorney-General and the Secretary of Banking for such further action as, in their opinion, is required under the circumstances, unless the formal issuance of said writ be waived by the defendant.

NOTE. Since the filing of the foregoing opinion the Secretary of the Commonwealth has referred the certificate, together with the matters therewith submitted, to the Governor, and an extension and renewal of the charter has been granted. No further opinion has been filed by the court, and it is probably considered unnecessary under the circumstances.

From Sidney E. Friedman, Harrisburg, Pa.

Real Silk Hosiery Mills, Inc., v. Moran et al.

Foreign corporations - Registration-Doing business in PennsylvaniaAct of April 22, 1915.

A foreign corporation which maintains an office in Pennsylvania under a division superintendent, under whom are district and local managers, at which office its plans for selling its product are made and collections from salesmen received, is not relieved from the duty of registration under the Act of April 22, 1915, P. L. 170, by the fact that its custom was to ship its goods from outside the State direct to the consumer within the State.

Application for a preliminary injunction. C. P. No. 5, Phila. Co., June T., 1924, No. 4355, in Equity.

Wolf, Patterson, Block & Schorr, for plaintiff.
R. T. McCracken, for defendants.

SMITH, J., July 9, 1924.-This was a hearing upon an application for a preliminary injunction. The bill of complaint avers, inter alia, that the Real Silk Hosiery Mills, Incorporated, was organized under the laws of the State of Illinois, and that its business consists of the manufacture and sale of hosiery direct to the consumer.

There has been no answer filed by the defendant, but counsel for the defendant at the bar of the court raised the question that since the evidence disclosed the fact that the plaintiff was not registed to do business in Pennsylvania, it could not maintain its action against the defendant.

This raises the point: Was the plaintiff doing business in the State of Pennsylvania? The plaintiff manufactured its hosiery in the State of Illinois, and it also appears that, although the plaintiff shipped to the office of its

Real Silk Hosiery Mills, Inc., v. Moran et al.

district manager in Philadelphia a small amount of hosiery for replacements, it shipped its hosiery to the consumers upon sales made from salesmen's samples. There is further evidence that the plaintiff maintained an office in the Widener Building, in the City of Philadelphia; that they employed a district manager in this territory, with headquarters in Philadelphia; that this district manager employed and trained local managers within his district, salesmen and clerks who worked in the main office.

The district manager had the name of the plaintiff on the door of the company's office in Philadelphia, the lease of which was taken in the name of the Real Silk Realty Company, a subsidiary company of the plaintiff. The rent was paid by the district manager out of his commissions. The plaintiff supplied all stationery, literature, cards, blanks, records and other supplies to the manager, although the plaintiff retained legal title thereto. The plaintiff further had a motion-picture machine in this territory for advertising purposes, which was leased to the district manager. The filing cabinets in the Philadelphia office were held on memoranda and loaned to the managers. At the time of the dismissal of the defendants, who were the district managers in Philadelphia, they were ordered out of the office of the company in the Widener Building by an authorized agent of the plaintiff. One of the duties of the district manager was to "preserve, protect and enforce the property and property rights" of the plaintiff, to transmit all moneys belonging to the plaintiff. The district manager, in pursuance of his agreement, did collect from the representatives or salesmen of the plaintiff all moneys collected by them, which moneys were sent to the home office of the plaintiff in the State of Illinois. The plaintiff avers in its bill that "in the week ending June 7, 1924, over 900 boxes of hosiery were sold from the Philadelphia office, which was in charge of the defendants, aggregating over $5000 in amount, which was the average amount of business done in this territory."

In Pavilion Co. v. Hamilton, 15 Pa. Superior Ct. 389, Judge Porter, repeating the language of many prior cases, said: "The tests of the application of the Act of 1874, as shown by previous adjudications in Pennsylvania, are whether the foreign corporations shall have an agent in the State of Pennsylvania; or shall have offices for the general conduct of its business in the State; or shall conduct its corporate business within the State; or shall have a part of its capital invested in the State."

The plaintiff, as has been before stated, employed a division superintendent, a district manager, several local managers, with all of whom it had signed contracts. It maintained an office within this State; it controlled its lease, and by its agent there situate carried out its plans of selling, made the collections from its salesmen, turned the funds over to the district manager in Philadelphia, who, in turn, transmitted them to the home office in Illinois. It had its name on the office door, on the printed stationery and order blanks in this office, which were distributed from the office to the local managers, and it owned and used in this State a limited amount of personal property for the purpose of doing its business in this State.

The Act of April 22, 1915, § 1, P. L. 170, also the Act of June 8, 1911, P. L. 710, would prevent a foreign corporation doing business in this Commonwealth and not here registered from bringing suit against this defendant. The 4th section of the Act of April 22, 1915, P. L. 170, provides that no action shall be instituted by such foreign corporations in any of the courts of this Commonwealth until such corporation complies with the provisions of this act. As was said in the case of Com. v. Nolde, 44 Pa. Superior Ct. 111, by Orlady, J. (page 113): "They placed a representative in the office, who VOL. 4-51

Real Silk Hosiery Mills, Inc., v. Moran et al.

employed sub-agents and distributed circulars and advertisements by mail, which gave the general character, scope and system of the business they were transacting. This is not a case of an isolated transaction, but the general business of the company was openly and continuously conducted for a number of months."

In Diamond P. Specialty Co. v. Milne, 67 Pa. Superior Ct. 223, Porter, J. (page 226), said: "The evidence disclosed that the plaintiff was a foreign corporation, and that it had not complied with the provisions of the statutes above mentioned. The evidence would have warranted a finding that the plaintiff had established an office in the City of Philadelphia and there transacted business; that it employed an agent who was in charge of said office, who employed sub-agents to assist in the business; that business was transacted at said office, and that the place was known as the Philadelphia office of the plaintiff corporation. Under this evidence, the court ought to have submitted the question whether the plaintiff was doing business in the State of Pennsylvania to the jury, with proper instructions as to what constituted doing business, the evidence as to the facts being conflicting:" Marwick et al. v. Rio Grande & Eagle Pass Ry. Co., 25 Dist. R. 246.

In Com. v. Wilkes-Barre & H. R. R. Co., 251 Pa. 6, Mr. Justice Mestrezat said (page 10): "The question of whether or not the company is doing business within the State is one of fact not necessarily depending solely upon single acts or on the effect of single acts, but on the effect of all the combined acts which it may perform here. It does not appear the acts which were done in this State were a mere incident of the defendant's corporate existence, but were the performance of the function and business of the corporation itself." It would be the height of sophistry to contend that just because the one incident or detail in the transaction, to wit, the shipping of the hosiery from outside the State direct to the consumer within the State might not be doing business, we must ignore or fail to take into consideration all of the essential links in the chain of a very successful and active business preparatory to the final shipment.

The plaintiff, having failed to properly conform to the laws of this Commonwealth, has no standing before this court in the case at issue. Injunction refused.

Kaplan et al. v. Meade et al.

Landlord and tenant-Lease-Municipal ordinance-Advertising signsConflicting interests of adjoining tenants-Equity—Injunction.

On a bill in equity brought by a tenant of the first floor of a business building against the landlord and a tenant of the basement, to compel the removal of advertising signs placed by the tenant of the basement, the bill will be dismissed where there is no proof that the lease to plaintiff had any express or implied easement of light, air or view, or that the signs were erected on any other part of the property than the basement, or that there was any invasion of plaintiff's natural rights, or that there had been any material violation of the laws of the Commonwealth or of the municipal ordinances relating to signs.

Bill for injunction. C. P. Luzerne Co., July T., 1923, No. 5.
Lorrie R. Holcomb and David Rosenthal, for plaintiffs.

Rush Trescott, for defendants.

MCLEAN, J.-Complainants filed a bill in equity with the following aver

ments:

"First. That they are lessees of certain storerooms, known as Nos. 62-64 South Main Street, Wilkes-Barre, Luzerne County, Pennsylvania, by virtue

Kaplan v. Meade et al.

of a written lease entered into by the said complainants with Joseph K. Weitzenkorn, the landlord, a copy of the said lease is hereunto annexed and made part hereof and marked 'Exhibit A.'

"Second. That the said Joseph K. Weitzenkorn, the landlord, in the said lease granted to the complainants the right and use of the display windows located in their respective storerooms at Nos. 62-64 South Main Street, in the City of Wilkes-Barre, County of Luzerne, and State of Pennsylvania.

"Third. That the said plaintiffs, because of their rights under the said lease, have expended large sums of money for the purpose of making displays in the said show windows so as to attract the public to view the displays in the said windows.

"Fourth. That the said Joseph K. Weitzenkorn, the landlord and one of the defendants, made a lease to James Meade and Booth and Company for the basement of the premises at Nos. 62-64 South Main Street, for a term of years, pursuant to which lease the said James Meade and Booth and Company took possession on April 1, 1923, and now occupy the same as tenants in

common.

"Fifth. That, notwithstanding the lease to the plaintiffs of the premises aforesaid, and the display windows connected therewith, the said James Meade and the said Booth and Company, tenants, did, on or about the 27th day of April, 1923, after taking possession of the basement of the said premises, erect and set up at the approach of the stairway leading to the basement aforesaid, certain wooden signs advertising their several businesses, which said signs are constructed and erected in such manner as to obstruct the view of the public from the display of merchandise in the said show or display windows of the plaintiffs.

"Sixth. That the said James Meade and Booth and Company, tenants in the said basement and defendants herein, erected the said wooden sign-boards in violation of the Building Code as adopted by authority of the City of WilkesBarre, Luzerne County, Pennsylvania, which said Code, at page 158, clause 395, provides as follows: 'No wooden sign or sign-board shall be attached to or placed upon a building within the fire limits. Outside the fire limits, wood signs may be used, but shall never exceed twenty-eight inches in height. No sign of any kind shall be attached to or placed upon a building in such manner as to obstruct any window or fire-escape thereon.'

"Seventh. That the said Joseph K. Weitzenkorn, the landlord and one of the defendants, in violation of the covenants in the written lease to and with the plaintiffs herein, agreed to and with the other two defendants, the said James Meade and Booth and Company, to permit them to erect the said wooden signs which obstructed, and continue to obstruct and shut off, the display windows of the plaintiffs.

"Eighth. That the said wooden signs have worked, and do work, an irreparable injury and detriment to the plaintiffs, and are injurious to the business of the plaintiffs, in addition to being a public nuisance and erected in violation of the city ordinance aforesaid."

Defendants' answer admitted paragraph 1, and denied or demanded proof of the other averments of the bill.

By agreement, the case was submitted to the court as upon final hearing upon bill, answer and replication.

Testimony was taken on behalf of plaintiffs and defendants, from a consideration of which testimony we conclude that the pertinent facts are not in dispute.