I must dissent from the opinion of the majority in this case upon two grounds and from the judgment.
The majority opinion holds that the case of Clare Foster,Inc., v. Diamond S. Electric Co., 66 Ohio App. 376, "is distinguishable both on the facts and on the law of the case" from this case. With this I cannot agree. The statement of the court in its opinion that "The title to the articles remained in the plaintiff" is that court's conclusion from the words used in the contract. The words there used are, "for our right to use the above mats and copy for one year only." In the present case the words used are, "for our right to use the above copyrighted material for one year only." The only difference is that one uses the words, "mats and copy," and the other uses the words, "copyrighted material."
These two phrases — the heart of the contract in each case — are not differentiable.
The fact that the court in the Clare Foster case did not make a forthright or specific holding that the plaintiff was engaged *Page 110 in interstate commerce is neither important nor controlling. The only question before the court was whether the plaintiff was engaged in interstate commerce and therefore not required to obtain a certificate in order to do business in the state or whether it was engaged in doing business in Ohio under the statutes and therefore required to obtain a certificate to do so before being eligible to sue in the courts of the state. Therefore, the holding of the court that "This plaintiff was doing business in Ohio, was * * * it did not have capacity to maintain this action" is but another way of holding that the plaintiff was not engaged in interstate commerce and therefore was required to obtain a certificate.
I must further dissent from the majority opinion and from the judgment it reaches for the reason that, in my opinion, the transactions involved as specified in and contemplated by the contract are not interstate commerce and the plaintiff was not engaged in interstate commerce and therefore was not under the protection of such clause as used in the federal Constitution.
It is stated in 15 Corpus Juris Secundum, 281, Commerce, Section 19, as follows:
"The power of Congress to regulate interstate and foreign commerce embraces the right to control the contract power of a carrier, in so far as the public interest requires such limitation, and includes the power to legislate on the subject of private contracts which directly and substantially relate to such commerce, as, for instance, contracts which directly involve transportation from one state to another. On the other hand, contracts which in no way involve transportation are not in and of themselves any part of interstate commerce, and the fact that they are formed between persons in different states or negotiated in one state and consummated in another is immaterial. A contract is not of an interstate character where interstate commerce may become only incidental to its execution, and is not a part of it as between the parties to the contract. Whether a particular contract is interstate or intrastate in character must be determined by a construction of the contract rather than by a consideration of the manner in which it has been performed by the parties."
The Supreme Court of the United States in the case ofBlumenstock Bros. Advertising Agency v. Curtis Publishing Co.,252 U.S. 436, stated: *Page 111
"Commerce, as defined in the often quoted definition of Chief Justice Marshall, in Gibbons v. Ogden, 9 Wheat. 1, 189 [6 L. Ed., 23], is not traffic alone; it is intercourse; `It describes the commercial intercourse between nations, and parts of nations, in all its branches, and is regulated by prescribing rules for carrying on that intercourse.'
"In the present case, treating the allegations of the complaint as true, the subject matter dealt with was the making of contracts for the insertion of advertising matter in certain periodicals belonging to the defendant. It may be conceded that the circulation and distribution of such publications throughout the country would amount to interstate commerce, but the circulation of these periodicals did not depend upon or have any direct relation to the advertising contracts which the plaintiff offered and the defendant refused to receive except upon the terms stated in the declaration. The advertising contracts did not involve any movement of goods or merchandise in interstate commerce, or any transmission of intelligence in such commerce."
The Supreme Court of the United States has also held in its notable decision in the case of A. L. A. Schechter Poultry Corp. v. United States, 295 U.S. 495, at page 546, as follows:
"In determining how far the federal government may go in controlling intrastate transactions upon the ground that they `affect' interstate commerce, there is a necessary and well-established distinction between direct and indirect effects. The precise line can be drawn only as individual cases arise, but the distinction is clear in principle. Direct effects are illustrated by the railroad cases we have cited, as, e. g., the effect of failure to use prescribed safety appliances on railroads which are the highways of both interstate and intrastate commerce, injury to an employee engaged in interstate transportation by the negligence of an employee engaged in an intrastate movement, the fixing of rates for intrastate transportation which unjustly discriminate against interstate commerce. But where the effect of intrastate transactions upon interstate commerce is merely indirect, such transactions remain within the domain of state power. If the commerce clause were construed to reach all enterprises and transactions which could be said to have an indirect effect upon interstate commerce, the federal authority would embrace practically all the activities of the people and *Page 112 the authority of the state over its domestic concerns would exist only by sufferance of the federal government. Indeed, on such a theory, even the development of the state's commercial facilities would be subject to federal control."
In my opinion, therefore, the judgment of the trial court should be reversed and the cause remanded, as under the contract sued upon no interstate commerce is involved, and plaintiff, being a foreign corporation transacting business in Ohio without a certificate authorizing it so to do, cannot maintain the present action. The action of the trial court striking the amended answer of the defendant, setting up this defense, was error prejudicial to the appellant.