defendants as a furniture store, at certain times upon a certain day. .ed, was no error. That there may be no smoke-consuming appliance that will, under all circumstances, prevent the nuisance, is not a matter of relevancy. The facts concerning them were presumably within the knowledge of Congress also when it took action; and no provision has been made for their use. The use of smokeless fuel instead may have been expressly contemplated. sides, the scope of the first question, even if admissible otherwise, was too narrow, in The defendants offered evidence tending to that it failed to include the question of cleanshow that they had attached to their fur-liness, and the public comfort that is innace, at the time, the best known smoke-con- volved in the emission of soot-distributing suming appliance; but that neither it nor smoke. any other, then known, would prevent the The last offer of defendants was to prove emission of such smoke for a brief period by several witnesses engaged in business in upon each occasion that fire might be start- close proximity to them that neither on the or the furnaces "coaled," or "raked day in proof nor on any other day, had the down," provided that soft bituminous coal be smoke from defendant's chimney been inju the fuel consumed. The evidence was ex-rious to their property or dangerous to their cluded and exception taken. In this there health and safety. This evidence was also inadmissible. That neighboring occupiers may not have sustained injury to property or health could not constitute a defense to prosecutions for the public nuisance. The absence of special injury to them as such would preclude an action of damages by any one of them, but could not determine the question of injury to public interests. Nothing short of satisfactory proof that under no circumstances could the emission of the forbidden smoke occasion material injury, inconvenience, or discomfort to the public would, at most, be sufficient to show that the statute, under the guise merely of the public interest, was an unwarranted invasion of private right. As we have before seen, a thing may be a public nuisance without, at the same time, being a special private nuisance to an adjacent owner or occupant. If the smoke constitutes a public nuisance at all, it does not matter that it may not be constantly emitted, but only at intervals. from day to day. Ross v. Butler, 19 N. J. Eq. 294, 302, 97 Am. Dec. 654. Defendants, in the cross-examination of the government's witnesses, asked each of them if the smoke testified to by him was of such character as to be dangerous to health, life, or property of persons living in the immediate vicinity of the defendant's house, or to the public at large; and also if the same constituted a public nuisance. The court refused to let the questions be answered, and exceptions were again taken. Assuming that each witness would have answered in the negative, there was no error in their exclusion. The questions called for opinions, not facts. What constitutes a public nuisance, under this statute, was primarily for the determination of Congress, and lastly a question of law for the court. Be We find no error in the judgment of the KANSAS SUPREME COURT. MUTUAL RESERVE FUND LIFE AS ERROR to the Court of Common Pleas for SOCIATION, Plff. in Err., v. Harry E. BOYER. (........ Kan.........) The fact that a foreign life insurance company had at one time transacted business in this state under the license is sued by the superintendent of insurance, and that it had filed in his office, as required by statute, its "written consent. irrevocable," to the institution of suits against it in the courts of this state, and the issuance of summons against it, directed to the superintendent of insurance, does not subject it to suit in this state upon a policy of insurance wholly executed in another state, if previous to the issuance of such policy it had withdrawn or been expelled from this state, and had entirely ceased to do business here. (June 9, 1900.) Headnote by DOSTER, Ch. J. NOTE. On the question who may be served with process in suit against foreign corporation, see Foster v. Charles Betcher Lumber Co. (S. D.) 23 L. R. A. 490, and note; Lubrano v. Im Wyandotte County to review a judgment in favor of plaintiff in an action brought to recover the amount alleged to be due on a life insurance policy. Reversed. The facts are stated in the opinion. Messrs. Warner, Dean, McLeod, & Holden, Miller, Buchan, & Morris, and George Burnham, Jr., for plaintiff in er ror. Messrs. McGrew, Watson, & Watson, J. O. Fife, and W. H. McCamish for defendant in error. Doster, Ch. J., delivered the opinion of the court: This was an action upon a policy of life insurance. The insurance was taken upon the life of Mrs. Clara A. Boyer in favor of her husband, Harry E. Boyer. Judgment was rendered in favor of the plaintiff, from which the defendant, the insurance company, has prosecuted error to this court. Before | perial Council, O. of U. F. (R. I.) 38 L. R. A. 547; Connecticut Mut. L. Ins. Co. v. Spratley (Tenn.) 44 L. R. A. 442 and Etna Ins. Co. v. Com. (Ky.) 45 L. R. A. 355. insurance company may be brought in any county where the cause of action arose, or in which the plaintiff may reside. The summens shall be directed to the superintendent of insurance, and shall require the defendant to answer by a certain day not less than forty days from its date." We think the motion to set aside the service should have been sustained, and that the demurrer to the plea in abatement should have been overruled. By the rules of comity between states, corporations chartered in one of them may be admitted to do business in the others; but, unless so admitted, they are not subject in personam to the jurisdiction of the courts outside the domicil of their creation. The rules of obligation rest pleading to the merits, the insurance company made a motion to set aside the service upon it because of lack of jurisdiction in the court to compel it to respond to the summons issued against it. This motion was overruled. It then filed a plea in abatement to the jurisdiction of the court, based upon the same reasons as those set out in the motion. A demurrer to this plea was interposed by the plaintiff and sustained. The matters averred in the plea, and the evidence adduced in support of the motion, were the same, and the two will be considered together. The allegations of fact contained in the plea were, of course, admitted by the demurrer. These allegations and the evidence submitted under the motion were that the defendant was a foreign life insurance coming upon corporations, under the doctrine of pany, and had been at one time authorized interstate comity, to respond to the demands to do business in this state, but about two of suitors in the courts of the states where years previous to the taking out of the policy they may be doing business, or their exempin suit its license had been revoked by the tion from the obligation, are quite well statsuperintendent of insurance, since which ed in St. Clair v. Cox, 106 U. S. 355, 27 L. time it had not maintained any agency or ed. 224, 1 Sup. Ct. Rep. 359: "While the transacted any business of any character theoretical and legal view, that the domicil whatever in the state; that application was of a corporation is only in the state where made for the policy in Kansas City, Mis-it is created, was admitted, it was persouri, through an agent whose office was in ceived that when a foreign corporation sent that city; that the medical examination of its officers and agents into other states, and the applicant was made in Kansas City, Mis-opened offices and carried on its business souri, by a resident physician there; that the policy was executed at the home office of the company in New York, and delivered to the insured in Kansas City, Missouri; that the first premium was paid in that city; that the residence of the insured, as stated by her in her application, was in Kansas City, Kansas. This last-mentioned fact, although proved under the motion, was not set out in the plea in abatement. All the others were. However, for the purpose of a consideration of the question of law involved, it will be treated as though set out in the plea. The summons to the defendant was served upon the state superintendent of insurance, in accordance with Gen. Stat. 1897, chap. 74, § 104 (Gen. Stat. 1899, chap. 50, § 3283). The material portion of this section reads as follows: "Every such company, on applying for admission and authority to transact business in this state, and as a condition precedent to obtaining any such authority, shall file in the insurance department its written consent, irrevocable, that actions may be commenced against such company in the proper court of any county in this state in which the cause of action shall arise or in which the plaintiff may reside, by the service of process on the superintendent of insurance of this state, and stipulating and agreeing that such service shall be taken and held in all courts to be as valid and binding as if due service had been made upon the president or chief officer of such corporation. Such consent shall be executed by the president and secretary of the company; authenticated by the seal of the corporation, and shall be accompanied by a duly certified copy of the order or resolution of the board of directors, trustees, or managers, authorizing the said president and secretary to exeActions against any such cute the same. there, it was, in effect, as much represented word in it indicative of an intention to amplify the capacity of the court with regard to that class of cases in which these creatures of foreign laws are parties defendants. The statute does not give any new right of suit, nor does it purport to take away any of the privileges of foreign corporations. It simply appoints a method of bringing corporations invested with a foreign character into the courts of this state, when such courts have jurisdiction over them. We think that the act in question has no scope beyond this. It may be further observed that the interpretation contended for in behalf of the plaintiff is one that could be judicially adopted only by force of the plainest manifestation of legprobable construction, for it is difficult to believe that it was the design to place within the jurisdiction of our courts all the corporations of the world, merely from the fact that a director, clerk, or other subordinate officer happened to come upon the territory of the state." 980, it is said: "If a corporation is not engaged in trade, and makes no contracts in a foreign state, justice seems to demand that it should not be subjected to suits in that jurisdiction; and it has been held, therefore, that under these circumstances the agents of the company have no authority to represent it in receiving service of writs or entering a voluntary appearance. Service of process upon the president or other managing agent of a corporation while merely casually present in the jurisdiction of another state does not constitute personal service upon the corporation itself." The cases in which the question has oftenest arisen have been those where service of summons was made upon an oflicer or agent of a foreign company cas-islative intent. It would seem to be an imually outside the jurisdiction of his own state. In such cases the courts have held almost uniformly that the service was bad. In Camden Rolling Mill Co. v. Swede Iron Co. 32 N. J. L. 15, the court said: "Upon general principles, and in the absence of statutory innovations, it is to be regarded as settled, in this state, at least, that if a foreign corporation at the time of the commencement of suit does not do business, and has not any office or place of business, in this state, the contract sued on not having been entered into in this state, such corporation, except by its own consent, cannot be brought within the jurisdiction of this or any court of this state. Under such circumstances, the officers or agents of such foreign corporation, when they come into this jurisdiction, do not bring with them their of ficial character or functions, and are not to be esteemed, out of the sovereignty by the laws of which the corporate body exists, the representatives, for the purpose of responding to suits of law, of such corporate body." In this and other like cases the ground upon which the claim of jurisdiction was rested was that the statute of the state in which the suit was filed provided that process against foreign corporations might be served upon their officers or agents,-as, for instance, an act of Pennsylvania (act March 21, 1849) which provided: "Process may be served upon any officer, agent, or engineer of such corporation, either personally or by copy, or by leaving a certified copy thereof at the office, depot, or usual place of business of said corporation; and such service shall be good and valid in law to all intents and purposes." Phillips v. Burlington Library Co. 141 Pa. 462, 21 Atl. 640. However, as against such contentions, the view of the court has been that the operative sphere of the statute was limited to cases in which the foreign corporation was subject, upon general principles of jurisdiction, to suits in the courts of other states than those of its creation. Thus, in Camden Rolling Mill Co. v. Swede Iron Co. 32 N. J. L. 15, it was said: "We find thus a mode is prescribed of effecting service of process on foreign corporations, but the question still remains. In what cases can they be so served? Can they be so served when, upon general principles, the courts of this state have no jurisdiction? The statute does not say so. There is not a The precise question, leaving out of view the point next to be noticed, concerning the nature of the authority to the superintendent of insurance required by our statute from foreign life insurance companies, was determined in People v. Commercial Alliance Life Ins. Co. 7 App. Div. 297, 40 N. Y. Supp. 269. In that case it appeared that a judgment had been rendered in the state of Maine against the insurance company. The judgment was sued upon in New York. The statute of Maine provided for service upon the agents of foreign life insurance companies, with a proviso that, if no such agent could be found, service might be made upon the insurance commissioner. The company had ceased to do business before the institution of suit against it. In the case cited the supreme court of New York ruled and remarked as follows: "The judgment must stand, if at all, on the service made on the state insurance commissioner, which was on the 3d day of July; and the referee found, in substance. that that service was ineffectual to bind the company in New York, because on that date the company was not doing business in the state of Maine, and that the Maine court had no jurisdiction over the company to render a judgment enforceable outside of the state of Maine. When a foreign corporation undertakes to transact business in a state other than that in which it is incorporated, it undoubtedly submits itself to the authori ty of the courts of that other state, and will be bound by the statutory provisions respecting the method of such courts obtaining jurisdiction over it. Gibbs v. Queen Ins. Co. 63 N. Y. 114, 20 Am. Rep. 513. While this Commercial Alliance Company was transacting business in the state of Maine, it was subject to the provisions of the statute of Maine respecting the service of process in an action against it on the state commissioner of insurance, in the absence of any authorized agent of the company upon whom service might be made. But that subjection does not last forever. As the Commercial Alliance Insurance Company had ceased to do 1 legislature of this state, in the enactment of the statute quoted, designedly made provision for cases so far in the time to come, and in which both the present and future citizens of this state could have no possible interest. The purpose of the statute was to provide our own citizens with a local forum for the trial of controversies with foreign life insurance companies during the time such companies were enjoying the privilege of being allowed to transact business within our jurisdiction under the favor and protection of our laws, with the like privilege to citizens of other states to resort to the same forum during the same period of time, and business on the 1st day of July, 1894, had to sue in the courts of this state, the coinwithdrawn from the state, and had no au- pany, under the theory contended for by the thorized agent upon whom service might be defendant in error, must submit to the jurismade after that date, the substituted serv-diction of our courts. It cannot be that the ice on the state commissioner would not bind it, as equivalent of personal service. The effect of the statute of Maine was to constitute the insurance superintendent the agent of the company to receive process under certain circumstances, viz. while such company was doing business in the state. While so doing business, the superintendent was empowered to receive process, if there were no agent of the company upon whom it might be served. But after the 30th of June, 1894, it was not a foreign corporation doing business within the state of Maine, and the Maine courts had no jurisdiction over it to render a judgment in personam against it, on substituted service. Whether the judg-perhaps (though it is not necessary for the ment may stand as one enforceable against property of the company in Maine, it is not necessary to consider." purposes of this case to so decide) to provide for our citizens a local forum in which, after the withdrawal or expulsion of foreign life The claim of the defendant in error in this insurance companies, to sue upon contracts case in favor of the validity of the service made by them during the period they transof summons upon the superintendent of in-acted business here. As before remarked, surance, and the consequent jurisdiction of the instrument of consent filed with the suthe court, is rested upon that portion of our perintendent of insurance is in the nature statute hereinbefore quoted which requires of a power of attorney. There is, we think, foreign life insurance companies, as a con- no difference in respect to revocability bedition precedent to the transaction of busi- tween a power of attorney executed between ness in the state, to "file in the insurance private individuals, as a matter of contract, department its written consent, irrevocable, and one authorized or required by statute bethat actions may be commenced against such tween a private individual and a public officompany by the service of proc- cer. All powers of attorney are revocable ess on the superintendent of insurance of by the donor of the power, except when coupthis state." etc. It must be admitted that led with an interest in the donee. Though this statute introduces an element of diffi- they be by their terms irrevocable, they nevculty in the question. If it were not for the ertheless may be revoked by the donor, exstatute, no reasonable doubt could exist, we cept in cases where the donee has an interthink, as to lack of jurisdiction of the courts est in their continuance. It may be concedof this state over the plaintiff in error. The ed that the superintendent of insurance has instrument filed with the superintendent of an interest, as a public representative, in the insurance was in the nature of a power of continued exercise of the power conferred upattorney. What meaning must be given to on him to accept service for foreign life inthe term "irrevocable," used in this power surance companies, but that interest must of attorney? Does it mean, as the word im- surely terminate with the termination of the plies, "never to be revoked; never to be abro- subject-matter in respect to which the augated, annulled, or withdrawn?" We can- thority was conferred. When, within the not think it bears such signification. It is intent of the parties to the instrument, there a cardinal rule in the interpretation of stat- no longer remains anything for the authoriutes that the words used in them are not ty to act upon, the power to act must of nenecessarily to be taken in their literal and cessity end. "Where the agency was created absolute sense, but in that sense which will for the purpose of performing some specific subserve the purpose the lawmakers had in act or acts, it will be terminated by the acusing them. The spirit and policy of a stat-complishment of the purpose which called it ute must be looked at, rather than the literal definition of the words employed. If the word "irrevocable" was used in its literal and unqualified sense, the power conferred will last, therefore, as long as the life of the insurance company, though that be a thousand years, and that, too, though the company rigidly keeps out of the jurisdiction of this state throughout the whole of such period of time. Though all the business it transacted in this state during the time it acted here under the license of the insurance department be entirely closed out, though every policy issued by it while here be fully paid, yet if, a thousand years hence, a policy holder residing in another state should wish into being. Having fulfilled its mission, it agent who solicited Mrs. Boyer's application for insurance gave some testimony from which it might be inferred that the solicitation of the application was made by him in Kansas, and not in Missouri. However, this testimony was by no means direct, nor was it offered for the purpose of establishing such solicitation here as a fact in the case. It seemed to have been casually elicited, as prefatory or incidental to other matters. It was not sufficient to justify a claim that so much of the insurance transaction was performed in this state. Besides, it was not given upon the issue tendered either by the motion or the plea in abatement, and, therefore, however explicit and positive it might have been, it could not be considered by us. here any agencies for the transaction of busi- | plea in abatement had been sustained, the ness, and that the contract of insurance sued upon was executed wholly outside this state. Now, as to what should be regarded as doing business or maintaining agencies in this state, or as to when a contract should be regarded as having been made without this state or within it, we do not assume to determine or intimate. It may be that some of the several instruments of which, as the record showed, the contract in suit was composed, were executed in this state, and therefore that such contract should be, in law, regarded as made within this state. It may be that the insurance company was in fact doing business in this state, notwithstanding its claim of abandonment. It may be that the mere collection of premiums in this state from citizens here is such a doing of business as to subject the company to the jurisdiction of our courts. Issues of fact as to all these possible cases were tendered by the insurance company. In our judgment, they should have been tried, instead of ruling their legal sufficiency against the company. Near the close of the trial that was had upon the merits, after the demurrer to the Our judgment is that the case should be reversed for a trial upon the plea in abatenient, and, of course, if the issue as to jurisdiction should be found against the company, then for a new trial upon the merits of the case. It is therefore reversed for proceedings in accordance with this opinion. All the Justices concur. It is a question of law for the court whether or not a false representation is material; whether it is relied upon by plaintiff to support an action for deceit, or by defendant to avoid a contract because of deceit. 2. A contract of subscription to a book entitled "Men of Progress of the State of Maine," whereby a person agrees to fur nish his portrait and a sketch of his life for publication therein, and to receive and pay for a copy of the book when issued, cannot E The action was based upon the following contract: All conditions of this contract must be expressed in and made a part of the same. None others will be recognized. "$35.00 "New England Magazine, Boston, Mass. Feb'y 21, 1896. "Please send me one copy of your complete work entitled 'Men of Progress,' to be issued in one large royal-octavo volume, with portraits and biographical sketches of representative men of the state of Maine, for which I agree to pay you or order the sum of thirty-five dollars upon issue of the part containing my sketch and portrait, and delivery of myself. My photograph and data for of the photo-engraved plate of the portrait three other persons in the town in which de- sketch I promise to furnish within thirty fendant lived would be asked to become sub-days or pay the above-mentioned sum upon scribers, and that portraits and sketches of delivery of the work. only 300 persons in all would be published, since these representations related to the character and contents of the book, and were be enforced where the agent who solicited the subscription falsely represented that only "Name: A. F. Gerald. The work will be printed (Not delivered) material to a work of this particular char-in parts, and each part will contain about one hundred portraits and one hundred biographical sketches. acter. (April 16, 1900.) XCEPTIONS by defendant to rulings of the Superior Court for Cumberland County made during the trial of an action to recover the contract price of a book which resulted in a judgment in plaintiff's favor. Sustained. NOTE. For statements as to future matters which are considered matters of opinion within the rule that mere expression of opinion is not a fraud, see note fo Hedin v. Minneapolis Medical & Surgical Inst. (Minn.) 35 L. R. A. 417. Plaintiff was assignee of the New England Magazine Company, and offered to prove that the book covered by the contract was tendered to, but refused by, defendant. Defendant did not furnish the photograph and data for the book as the contract required, so that his portrait and a sketch of his life were not found in the book. Defendant claimed exemption from the contract on the ground that he was induced to sign the or der by false representations made by the |