The service of summons and complaint on Bond Goodwin Tucker, Inc., was attempted to be made under the provisions of Rem. Comp. Stat., § 3854, relating to foreign or non-resident corporations, which, after prescribing how *Page 698 such corporations shall constitute and appoint agents, change them from time to time, and file notice of such appointments in the office of the secretary of state, in part, reads:
"In case said corporation shall revoke the authority of its designated agent after its withdrawal from this state and prior to the time when the statutes of limitations would have run against causes of action accruing against it, then in that event service of process, pleadings and papers in such actions may be made upon the secretary of state of the state of Washington, and the same shall be held as due and sufficient service upon such corporation."
The objection of relator to the service attempted under the statutory provisions above quoted, is that it would deprive relator of its property without due process of law and in violation of clause one of the fourteenth amendment to the United States constitution, and is therefore void.
It must first be noted that our statute providing for service upon a nonresident corporation makes no provision for notice by the secretary of state to the corporation, or the delivery of a copy of the process by him to such corporation.
Wuchter v. Pizzutti, 276 U.S. 13, 57 A.L.R. 1230, involved a statute of New Jersey, which provided that, in actions by residents of that state against nonresidents for personal injuries resulting from the operation by the latter of their motor vehicles on the state highways, service of summons might be made on the secretary of state, as their agent, which contained no further provision making it reasonably probable that notice of such service would be communicated to the defendants, held that the statute was lacking in due process of law, reversing the state court (Pizzuti v. Wuchter, 103 N.J.L. 130, 134 A. 727). A valid reason would have been the fact that, in such personal *Page 699 injury cases, there would be little likelihood, unless notice by the secretary of state was required, such transient, nonresident defendants would receive any notice and judgments could be obtained against responsible nonresident defendants without notice, thus taking property without due, or any, process, and in violation of the Federal constitution.
A case decided by the supreme court of Virginia, Du PontEngineering Co. v. Harvey Const. Co., 158 S.E. (Va.) 891, decided some three years after the decision in the Wuchter case, supra, seemed logical in reasoning and in result, sustaining substituted service on a state officer. Examination discloses, however, that the Du Pont case, which did not fully set out the provisions of the Virginia statute, followed an earlier case by the same court, American Ry. Express Co. v.Fleishman, Morris Co., 149 Va. 200, 141 S.E. 253, which did. The statutes of Virginia there set out were Code of 1919, §§ 3845, 3846, the first section of which had similar provisions to the first provisions of our § 3854, supra, relating to foreign corporations; and the second section provided that, whenever lawful process against, or notice to, any such company or society should be served as provided in the preceding section, the secretary of the commonwealth should forthwith mail a copy of such process or notice to the company or society, etc.
It is thus seen that the Virginia statute contained a provision for notice to be forwarded by the secretary of the commonwealth to the nonresident corporation, which the New Jersey statute did not prescribe as to nonresident defendants, whether private or corporate.
In another case, Consolidated Flour Mills Co. v. Muegge,278 U.S. 559, that court reversed a decision by the supreme court of Oklahoma, merely saying: "Reversed on the authority of Wuchterv. Pizzutti, *Page 700 276 U.S. 13." It is necessary, therefore, to turn to the decision of the supreme court of Oklahoma in the last cited case to determine what statute was there interpreted, which that court decided was not in contravention of the fourteenth amendment or due process clause of the Federal constitution. ConsolidatedFlour Mills Co. v. Muegge, 127 Okla. 295, 260 P. 745. That court cited, as a case in point, Kaw Boiler Works v. Frymyer,100 Okla. 81, 227 P. 453. In the last citation, the statute of Oklahoma, relating to service on foreign corporations doing business in Oklahoma and which had failed to appoint an agent, was quoted, which provided:
"Service of summons or any process upon the Secretary of State shall be sufficient to give jurisdiction of the person to any court in this state having jurisdiction of the subject-matter."
In these two cases, the Oklahoma court reviewed a large number of cases, both state and Federal, bearing upon the questions, and held their statute would not contravene the Federal constitution. The supreme court, as is seen by the decision in 278 U.S. 559, held that the statute did violate the provisions of the Federal constitution relating to due process, and therefore reversed it.
It is to be observed that our insurance code, Rem. Comp. Stat., § 7044, when providing for service against foreign insurance companies, requires duplicate copies to be served upon the state commissioner of insurance; and upon such service being made, the commissioner shall forthwith mail one of such duplicate copies to the company at its home office or general agency, or, in case of an alien company, to the resident manager, if any, in this country.
If § 3854, supra, providing for service on a nonresident, or a withdrawing corporation, contained similar *Page 701 provisions, doubtless it would be valid under the Wuchter andMuegge decisions. But it has no such provision.
As to its right to question such state laws as objectionable to provisions of the Federal constitution, after seeking and obtaining permission to do business in a state by a foreign corporation, see Powers Mfg. Co. v. Saunders, 274 U.S. 490, and cases cited, allowing such right.
This being the sole question to determine in this proceeding, as we are bound by the decisions of the supreme court of the United States respecting the law applicable, under these later decisions, I am forced to conclude that the writ should be granted.
For the foregoing reasons I dissent.
STEINERT and PARKER, JJ., concur with HOLCOMB, J. *Page 702