It is, to say the least, taxing the credulity of the ordinary mind to say that the Commercial Appeal is not "doing any business," or performing "any character of work or service" in Mississippi. It has what are called distributors in the various vicinities of the state, a part of whose contractual duties is to "Use every reasonable effort to retain all purchasers and to increase the number *Page 284 of purchasers of The Commercial Appeal in the above town"; to sell and deliver the paper promptly to purchasers, newsboys and news-stands "at the regular rates" fixed by the paper; to furnish to the paper a complete list of such newsboys and news-stands, with their addresses, with dates to which subscriptions have been paid. These distributors execute bonds "to well and truly perform each and every provision of the above agreement." It also has located in the State District Circulation Managers. The one in this record covers all the territory in the state east of the Illinois Central Railroad except a small "corner" in the northeastern part thereof. He is paid a salary by the paper. It is his duty to go about his territory and supervise the distributors. He recommends the employment and discharge of the distributors. His recommendation has never been rejected. He sees to it that the bonds of the distributors have sufficient sureties, in numbers and financial worth. The paper maintains and pays the rent of an office in Jackson, on which is printed the words "The Commercial Appeal — Mississippi Office — News — Circulation — Advertising." In this office, it keeps a paid employee whose duty it is to gather state-wide news for the paper, and who analyzes and reports this news, with informative comments and conclusions thereon, for publication in the paper. Presumably and necessarily there are local news-gatherers throughout the state. It transports into the state, by bus, trucks and trains, and distributes to subscribers, some forty thousand daily papers. This is almost thirty percent of its total circulation. These not only carry the news and such articles as are usual in a large newspaper but also advertisements of the residents of this state. It receives from Mississippi nearly one-third of its total subscription revenue. Candor compels me to say that the majority holding appears to be supported by the greater number of adjudicated cases, but to say that the Commercial Appeal, under these circumstances, is not doing business or performing any character of work or *Page 285 service in Mississippi is, in my view, to become lost in the tangled brambles of legal refinement.
Publication of a newspaper is a unique business. Its sole, ultimate object is to sell papers. That is its life-blood. Without patrons, it has no purpose and no means of existence from operation of the business. It gathers and sells news. It sells space for advertisements. The whole plan and effort are directed to procuring subscribers. Every act in this record is a link in that plan. Speaking of the functions of a newspaper, it is said in Acton v. Washington Times Company (D.C. Md.), 9 F. Supp. 74, 76: "They are are follows: First, the function of gathering news; second, the function of obtaining advertisers and subscribers as a source of revenue with which to edit, print, and sell in newspaper form both the news and the advertisements obtained; and, third, the actual printing and circulation of the newspapers for sale." The Commercial Appeal is performing in Mississippi each and all such functions save the actual printing of the paper.
The cases bearing upon this question are legion. They cannot be dealt with in detail, nor even listed, within the bounds of an opinion of reasonable length. From them, however, I think the following is a fair summary of the principles announced therein bearing on the question under consideration:
1. No rule can be announced applicable to all cases. The courts have not tried to announce such rule. Each case must depend upon its own facts and circumstances, all considered, in the light of the purpose and language of the statute involved, and the general principles governing the jurisdictional authority of the state over such corporations.
2. The object to which the question is directed will influence the conclusion. The question of the right to subject a foreign corporation to jurisdiction of the courts in the state through service of process is different from the power to impose conditions, restrictions and regulations *Page 286 upon the right of the corporation to engage in activities in the state, and both are different from the right and power to tax such foreign corporation. The standards are not the same, and the quality, character, and quantity of the business conducted within the state by a foreign corporation may be sufficient to subject it to the jurisdiction and process of the courts, and yet not subject it to a statute prescribing conditions for doing business within the state.
3. Whether the transactions of the corporation within the state are in furtherance of its charter, functions and purposes, and whether they are of a continuing character, or whether such acts are isolated from the usual business of the corporation and temporary or sporadic, are very important considerations in determining whether it is doing business within that state. Many cases turn upon the character rather than the amount of business done.
4. While mere soliciting and obtaining orders within a state, by the agent of a foreign corporation, for goods to be shipped into the state to the purchasers, does not ordinarily amount to doing business within the state so as to render the foreign corporation amenable to service of process therein, yet, on the other hand, such acts have been held in many cases to constitute doing business in the state, viewed in the light of the facts and the issues involved, where such transaction is part of the regular business of the corporation, and indicates a purpose to carry on a substantial part of its dealings in that state.
5. Much weight is attached to the maintenance of an agency or office in the state. While perhaps a majority of the cases hold that a foreign corporation which merely solicits orders for its goods within a state, to be accepted or rejected by the home office, the goods to be shipped to the purchasers in that state from another state, is not doing business in the local state for the purpose of service of process therein, although the corporation or its agent maintains an office within the local state for the agent's accommodation, they all hold that very little additional *Page 287 activity on the part of the local agent is required in order to subject the corporation to service of process in the local state. And, it has been held that a foreign corporation is doing business in the state by maintaining therein an office and a selling agent who takes orders for its goods and merely sends them to the home office with directions for shipment. Anno. L.R.A. 1916E, et seq.
The foregoing rules are deduced from, and the field will be found to be covered by, the cases and discussions appearing in 23 Am. Jur., pages 333 to 343, and pages 378 to 389, and footnotes; and annotations in Vol. 2, page 307; Vol. 11, page 320; Vol. 22, page 552; Vol. 30, page 1154, all in American and English Annotated Cases; Ann. Cas. 1918C, page 539; 46 A.L.R. 570; 60 A.L.R. 1030; 95 A.L.R. 1480; 101 A.L.R. 126, and 19 Fed. Digest, Corporations, key 642, beginning at p. 914.
As to an attempted definition, it is said in 23 Am. Jur., Section 361, page 337: ". . . as a general proposition upon which most of the authorities agree in principle, subject to such modifications as may be necessary in view of the particular issue or of the terms of the statute involved, it is recognized that a foreign corporation is `doing,' `transacting,' `engaging in,' or `carrying on' business in the state when, and ordinarily only when, it has entered the state by its agents and is there engaged in carrying on and transacting through them some substantial part of its ordinary or customary business, usually continuous in the sense that it may be distinguished from merely casual, sporadic, or occasional transactions and isolated acts." In Restatement of the Law, Conflict of Laws, Section 167, page 244, this definition is given: "Doing business is doing a series of similar acts for the purpose of thereby realizing pecuniary benefit, or otherwise accomplishing an object, or doing a single act for such purpose with the intention of thereby initiating a series of such acts." Applying these rules and these definitions to all of the facts of this case, I think it may be accurately said that logic and reason force the conclusion *Page 288 that the Commercial Appeal is doing business, or performing work or service in Mississippi.
I think also that the following cases support or sustain that conclusion: Acton v. Wahington Time Company, (D.C. Md.),9 F. Supp. 74; Black v. Vermont Marble Company, 1 Cal. App. 718,82 P. 1060; Neyens v. Worthington, 150 Mich. 580, 114 N.W. 404, 18 L.R.A. (N.S.), 142; Milburn Wagon Company v. Com., 139 Ky. 330, 104 S.W. 323; Thomas Mfg. Company v. Knapp, 101 Minn. 432, 112 N.W. 989; Chicago Mill Company v. Sims, 197 Mo. 507, 95 S.W. 344; International Text-Book Company v. Pigg, 76 Kan. 328, 91 P. 74; International Text Book Company v. Lynch, 81 Vt. 101, 69 A. 541; International Harvester Company v. Kentucky, 234 U.S. 579, 34 S. Ct. 944, 58 L. Ed. 1479; American Asphalt Roofing Corp. v. Shankland et al., 205 Iowa, 862, 219 N.W. 28, 60 A.L.R. 986; Tauza v. Susquehanna Coal Company, 220 N.Y. 259, 115 N.E. 915; Cochran Box Mfg. Company v. Monroe Binder Board Co., 232 N.Y. 503, 134 N.E. 547; Glynn v. Hyde-Murphy Company, 113 Misc. 329, 184 N.Y.S. 462; Heer Company v. Rose Brothers Company, 120 Misc. 723, 200 N.Y.S. 397; Bogert Hopper v. Wilder Mfg. Co.,197 A.D. 773, 189 N.Y.S. 444; Winslow v. Domestic Engineering Co. (D.C.), 20 F. Supp. 576; Harbich v. Hamilton-Brown Shoe Company (D.C.), 1 F. Supp. 63; Clements v. MacFadden Publications (D.C. Tex.), 28 F. Supp. 274. A number of these cases lay stress upon the fact that the foreign corporation maintains a place of business in the local state, with the name and nature of its business appearing thereon.
The able majority opinion cites the case of Item Company, Ltd., v. Shipp et al., 140 Miss. 699, 106 So. 437. That case may be distinguished from the one at bar in these respects:
1. That suit involved Chapter 92, Laws 1916 (Section 4164, Code of 1930), requiring corporations "now or hereafter doing business in this state" to file their charters in Mississippi. Chapter 246, Laws 1940, now under *Page 289 consideration, uses the words "who shall do any business or perform any character of work or service in this state." It is readily seen that Chapter 246 is broader and more comprehensive in its language than Chapter 92.
2. The wording of Chapter 246 shows that it was designed to enable a resident to sue in a case where a foreign corporation had not complied with Chapter 92. It says "Any non-resident . . . or any corporation not qualified . . . as to doing business herein." If such non-resident is qualified by filing its charter to do business in this State, Chapter 246 is not needed.
3. The object of Chapter 246 is to enable residents of this state to assert in court such rights as they may have resulting from activities in this state of foreign corporations; whereas, in the Shipp case, the residents were undertaking to prevent establishment against them through the courts of Mississippi of an apparent contractual obligation.
4. In the Shipp case, the non-resident maintained no office in Mississippi. As stated above, the courts attach great importance to this fact. Here, appellant maintains an office in Jackson, pays all rent and expenses, on which appears "The Commercial Appeal — Mississippi Office — News — Circulation — Advertising," with a paid agent located therein and in charge thereof, and who there gathers local and state-wide news, which, with his comments and conclusions, the paper publishes, sells and distributes throughout the state.
It is not a question in this case whether either Dunlap or Lamb has authority to receive process. The statute constitutes the Secretary of State its agent, with full authority for process, if appellant is performing any act within the state covered by said Chapter 246, and he was served with process herein.
Corporations can only act through agents. They have no physical being to be present in person in the state. Whatever transactions take place in this state must be through agents. *Page 290
The law should be interpreted in a practical way to afford opportunity for the administration of equal and exact justice so far as human beings can do so under reasonable interpretation of the statutes. This case illustrates that. The article here did not call the name of Mr. Lee. Its application to him could only be known in and about Webster County, Mississippi, by those familiar with local conditions and who knew or had heard of his activities about the matter published. If he has suffered damage, it is with the people who know him. Under the holding in this case, and that of Forman v. Mississippi Publishers Corp.,195 Miss. 90, 14 So. 2d 344, this day handed down, Mr. Lee can bring and maintain his action only at Memphis, Tennessee, where, very likely, he is not known at all, or, if so, to a very limited extent. In such case, he must not only incur all of the expense of attending trials and prosecuting his case at that distance, but he is dependent for the presence of witnesses at the trial upon their willingness to volunteer and undergo the inconvenience and consume the time of what is likely to be protracted litigation in another state. He has no way to force them to go, and if they go voluntarily, that apparent interest in his behalf would greatly weaken their testimony before the jury. Again, as a practical illustration, suppose a Chicago or New York paper, engaging in the same activities as is appellant in Mississippi, should publish the vilest kind of libel against a citizen on this state — under these holdings, the libeled citizen must sue in Chicago or New York. This, in practical effect, is to deny the citizen a remedy for his wrongful injury, regardless of how grievous it may be. Such result must needs be declared by the courts, of course, regardless of the hardship and injustice, if the status of the law so requires, but that result, in my opinion, does not follow under the statute and circumstances of this case.
Anderson, J., joins in this opinion. *Page 291