WILLIAM GRACE CO. v. HENRY MARTIN BRICK MACH. MFG. CO., 174 F. 131

KOHLSAAT, Circuit Judge (after stating the facts as above). Whether or not the service upon McClellan was good must be determined with reference to the Illinois law. If the municipal court obtained jurisdiction of the defendant in error by service upon him, that jurisdiction was not vitiated by the removal. Under the statute of Illinois (section 26, c. 32, Hurd’s Rev. St. 1908) service can be had upon an agent of a foreign corporation only in case that corporation is “doing business” in the state. The questions here presented are:

(1) AVas defendant doing business in the state of Illinois at the time of service or before?

(2) Was McClellan an agent within the meaning of the statute of Illinois? It does not appear that defendant in error ever maintained any office within the state of Illinois for the transaction of its business. On the contrary, it is positively denied. Nor had it ever had any resident agent in the state, or transacted any other business therein, save the soliciting of orders by mail or traveling-salesmen, to be submitted to defendant in error for approval.

Our attention has been called to no Illinois case holding that a foreign corporation, under these circumstances, would be held to be doing business in the state. On the other hand, the contrary is expressly held in Havens & Geddes Co. v. Diamond et al., 93 Ill. App. 557, and in March-Davis Cycle Mfg. Co. v. Strobridge Lithographing Co., 79 Ill. App. 683.

In the former case it is said: “Tbe procuring of orders by traveling agents in this state, with or without samples, or the sale of goods in this state by samples, when the orders are sent to a foreign corporation for its -approval in the foreign state, from which the goods, are shipped by common carrier to the purchaser in this state, does, not constitute ‘doing business’ in this state, where such foreign corporation has no place of business in this state.” To the same effect are the decisions of a great number of the state courts referred to at page 2160 of Words and Phrases Judicially Defined.

The federal rule is clearly stated in Wall v. Chesapeake & Ohio Ry. Co., 95 Fed. 398, 37 C. C. A. 129, and Fairbank & Co. v. Cin. & N. O. Ry. Co., 54 Fed. 420, 423, 4 C. C. A. 403, 38 L. R. A. 271. In Fitzgerald & Mallory Construction Co. v. Fitzgerald, 137 U. S. 98, 11 Sup. Ct. 36, 34 L. Ed. 608, it is said: •‘Where a foreign corporation is not doing business in a state, and tho president or any officer is not there transacting business for the corporation and representing it in tlie state, it cannot be said that the corporation is within the state, so that service can be made upon it.” In Green v. C., B. & Q.

Ry. Co., 205 U. S. 530, 27 Sup. Ct. 595, 51 L. Ed. 916, it is held that the fact that “for the purpose of conducting this incidental business the defendant employed Mr.

Heller, hired an office for him in Philadelphia, designated him as ‘district freight and passenger agent,’ and in many ways advertised to the public these facts,” and the further fact that “when a prospective passenger desired a ticket, and applied to the agent for one, the agent took the applicant’s money and procured from one of the railroads running west from Philadelphia a ticket to Chicago, and a prepaid order which gave to the applicant, upon his arrival at Chicago, the right to receive from the Chicago, Burlington & Quincy Railroad a ticket over that road,” and the further facts that he issued orders for reduced rates to railroad employes over defendant’s lines, and gave exchange bills of lading, to be in force when freight was actually received by defendant therein— all these, and more, were not sufficient to show that the defendant therein was doing business in the district; citing with approval Fairbank & Co. v.

Railway Co., supra. The case of Houston v. Filer Stowell Co. (C. C.) 85 Fed. 757, is cited by plaintiff in error as holding to the contrary. In that case, however, the general manager of the defendant corporation was in the state with reference to the subject-matter involved in the suit, thereby raising questions not involved here. Whether or not the facts in that case show that the defendant there was doing business in this state is not here a material inquiry, since McClellan could not, by anything he could do beyond his authority, bring defendant in error into this state.

Whether or not he was, under the facts of this case, an agent, within the meaning of the statute, for purposes of service, must clearly be answered in the negative, under the rule established by a long line of authorities. Goldey v. Morning News, 156 U. S. 518, 15 Sup. Ct. 559, 39 L. Ed. 517; Conley v. Mathieson Alkali Works, 190 U. S. 406, 23 Sup. Ct. 728, 47 L. Ed. 1113; Green v. Railway Co., supra. We deem it unnecessary to consider the phase of the case raised by defendant in error with reference to interstate commerce. Affirmed.