(dissenting) — According to my views the writer of the majority opinion has fallen in error by assuming that Section 7042, Revised Statutes 1909, is only “a service statute,” and not what we may denominate, a “venue statute.”
ivmiing8 Case.
In passing, I wish to state that apparently my learned associate who wrote the majority opinion in this case has overlooked the fact that he concurred in the result of the opinion in the case of the Cold Issue Mining & Milling Co. v. Pennsylvania Fire Insurance Co,, 267 Mo. 524, which was affirmed, on of error, by the Supreme Court of the United States in the case of Pennsylvania Fire Insurance Co. v. Gold Issue Mining & Milling Co., 243 U. S. 93, where it was expressly held that said Section 7042 was both a venue and service statute. That suit was brought under that statute and not under Sections 1751 and 1754, Revised Statutes 1909, of the general practice act, necessarily holding that said statute not only provided for service of process, but also prescribed where the suit should be instituted, which was in any county , in the State, as will later be especially noted.
Moreover, ever since the enactment of this statute in its present form, which was in 1885 (Laws 1885, p. *5123.83), it has been considered by the Bench and Bar of 1 the State, asv well as by Insurance Department, as being both a service and a venae statute. I am somewhat familiar with the litigation of this State which has reached this court and the various courts of appeals, and I know of no' ease where the venue thereof was not determined according to the provisions thereof, and service had as provided for therein. This alone should be considered as strong evidence of the legislative intent. But be that as it may, I will briefly consider some of the views expressed in the majority opinion in the following paragraphs.
statute.
II. After th'e majority opinion states that Section 7042 is a service and not a venue statute, it then adds: “This section nowhere provides, nor attempts 1° provide, where any action shall be instituted.”
In my opinion my learned brother is clearly in error in that statement. Let me copy a portion of that statute:
“Any insurance company not incorporated by or organized under the laws of this State, desiring to transact any business by any agent or agents in this State, shall first file with the Superintendent of the Insurance Department a written instrument or power of attorney, duly signed and sealed, appointing and authorizing said superintendent to acknowledge or receive service of process issued from any court of record, justice of the peace, or other inferict* court, and upon whom such process may be served for and in behalf of such company, in all proceedings that may be instituted against such company, in any court of. this State or in any court of the United States in this State, and consenting that service of process upon said superintendent shall be taken and held to be- as valid as if served upon the company, according to the laws of this or any other State. Service of process as aforesaid, issued by any such court, as aforesaid, upon *513the superintendent, shall he valid and binding, and he deemed personal service npon snch company.”
By this reading it is seen that the Superintendent of Insurance is authorized to accept^ service of process for all foreign insurance companies doing business in this State issued from any court of record, etc., in all proceedings that may he instituted against such company in any court of this State. This language cleanly embraces all the courts mentioned in that statute in all the counties of the State, and is not qualified or limited by any such words as are generally used when the Legislature intends that one section of the statute is to be qualified or limited by another. Had it been the intention of the Legislature to qualify or limit thq counties in which suits against foreign insurance companies might be brought to those mentioned in Sections 1751 and 1754, it clearly would have used some appropriate language indicating that intention, as was done by Section 1751, Revised Statutes 1909.
According to the ruling in the case of State ex rel. v. Jones, 270 Mo. 230, 192 S. W. 980, Sections 1751 and 1754 do not apply to the case at bar for the reason therein stated.- Those sections only apply to the venue of actions against non-residents in general, etc., and in express terms they exclude their application to all cases where the law otherwise provides for service; and as previously shown, Section 7042 does “otherwise provide” where suits of this character shall be brought, namely, in any county in this State; but. as previously stated, the converse of the proposition is not true.
£2“
III. But should we, for the sake of argument, takei Judge Fabis’s view of Section 7042, and hold it is only a service statute, and hold that Sections 1751 and 1754, Revised Statutes 1909, regarding the general venue of cases, are controlling, still if we give effect to other well settled rules of law which are in full force in this and many of the other states, we must still hold that this particular suit was properly brought in the circuit court of Audrain County. I say *514this because under Sections 7040, 7041 and 7042, Revised Statutes 1909, a foreign insurance company doing business in this State is a resident of every county hereof. Such is the law here and elsewhere, which I will briefly note.
In the case of New England Mutual Life Ins. Co. v. Woodworth, 111 U. S. 138, l. c. 145, the Supreme Court of the United States expressly held that a foreign insurance company licensed to do business in the State of Illinois under a statute similar to ours “must he regarded as having a domicile there.” And in discussing this same question this court in the Gold Issue case before mentioned, on page 575, used this language: “And ‘within contemplation of the statute relating to service of summons upon foreign insurance companies, such companies are regarded as residing in each county of the State.’ [State ex rel. v. Grimm, 239 Mo. l. c. 166; Meyer v. Ins. Co., 184 Mo. l. c. 486.] And ‘it must be conceded that the only mode by which a foreign insurance company can be served with process in this State is by the method provided for in said Section 7042.’ [State ex rel. v. Grimm, 239 Mo. l. c. 160; Baile v. Equitable Fire Ins. Co., 68 Mo. 617; Middough v. Railroad, 51 Mo. 520.]”
That being trae, then the relator was a resident of Audrain County at the time the suit on the policy mentioned in this case was instituted against it, and therefore, the suit was properly brought according to the language of the first subdivision of Section 1751, Revised Statutes 1909, in' Audrain County, which provides that “when the defendant is a resident of the State, either in th'e county within which the defendant resides, or,” etc.
But the fallacy of saying Sections 1751 and 1754 govern in this class of cases is shown’by the fact that a cause of action might accrue against a foreign insurance company doing business in this State in a county wherein the insured does not reside, and in which the company has no agent; in such a case, the insured would have to leave his own home and sue where the *515cause of action accrued, or go to some county where the company has an agent, and bring suit there. This I submit is contrary to the whole spirit of our insurance laws. The policy of all of the states has been to make all such companies residents of the states and of all the counties thereof, in order that no question, might arise as to the proper place of bringing suit, and to enable the insured to litigate his claims at home.
In discussing this question the Supreme Court of the United States in the case of New England Mutual Life Ins. Co. v. Woodworth, 111 U. S. 138, l. c. 144, said:
“In the growth of this country, and the expansions .and ramifications of business, and the free commercial intercourse between the - States of the Union, it has come to pass that large numbers of life and fire insurance companies and other corporations established with the accumulated capital and wealth of the richer parts of the country, seek business and contracts in distant States which open a large and profitable field: The inconveniences and hardships resulting from the necessity on the part of creditors, of going to distant places to bring suits on policies and contracts, and from the additional requirement, in case of death, of taking out letters testamentary or of administration at the original domicile of the corporation debtor, in order to sue, has lead to the enactment in many States of statutes which enable resident creditors to bring suits there against corporations created by the laws of other States.”
Then follows what I. have heretofore quoted therefrom regarding what the court, said regarding the Ulinois statute making all such' companies residents of that State.
Strictly speaking, that statute alone cannot make such a foreign corporation a resident of this State, but when the terms thereof are accepted by such a corporation, the two combined, or the transaction of business in this State by such a company in violation of our statutes (see eases previously cited), constitutes it a *516resident of this State within the meaning of onr laws, and hy becoming a citizen it submits itself to the jurisdiction of our courts, just as a natural person would do hy coming within our territorial limits; and as a condition precedent to its right to come into this State and transact business, it must agree that process which issues out of all courts mentioned in Section 7042, Revised Statutes 1909, in all the counties of this State may he served upon the Superintendent of Insurance in their behalf. If, under those conditions it he true, as the majority opinion holds, that Audrain County is a “hand-picked vénue” in which the plaintiff in the original cause brought its suit, I have only this answer to make, the law authorizes him to make the selection, and the relator here, the defendant there, in consideration of its right to do business in this State, agreed that the plaintiff there might make that selection and should not at this late day he heard to question the validity of that agreement.
This has been the unquestioned law of this State for more than a third of a century, and I now see no good reason for this court, at this late date, to change or modify it.
Agen*11*
IV. I am also of the opinion that the majority opinion is in direct conflict with, the principles of law announced in the following cases: Gold Issue Mining & Milling Co. v. Pennsylvania Fire Insurance Co., 267 Mo. 524; Pennsylvania Fire Insurance Co. v. Gold Issue Mining & Milling Co., 243 U. S. 93; Baile v. Insurance Co., 68 Mo. 617; Stone v. Insurance Co., 78 Mo. 655; Meyer v. Insurance Co., 184 Mo. 481; State ex rel. v. Grimm, 239 Mo. 135.
The majority opinion in this case holds that .a resident of this State cannot sue a foreign insurance company doing business in this State in any- county thereof without, -first, the cause of action accrued against the company in that county; or, second, without such company h'as an agent of its own located therein, as distinguished from the Superintendent of Insurance, who *517is alone authorized by Section 7042, Revised Statutes 1909, to accept service for all such companies in all suits of this character brought in any court of this State; and in the consideration of this question it must be borne in mind that even though such company should have an agent in every county of the State, yet the law nowhere authorizes service of process in any such suit upon any such an agent; and the majority opinion, as I understand it, concedes this to be true, at least it does not hold that service can be had in such a case except upon the Superintendent of the Insurance Department, whether the plaintiff is a resident or nonresident of this State. In other words, there is no provision made for service upon the compnay’s own agent, but it must without exception be made upon the Superintendent of Insurance in all such cases, regardless of the residence of the plaintiff.
In the light of this law I am at a loss to know why any significance whatever should be attached to the fact that the company has or may have an agent in any such county, because, as previously stated, under the statutes and the majority opinion, such an agent has nothing more to do with the ease or the service of the process than would a totem pole erected in the center of each county of the State.
All the cases just cited are insurance cases and hold that the suit may be brought in any county in the State. And the" mere fact that the plaintiffs in some of them were non-residents of the State does not distinguish them in principle from those where the plaintiffs were residents. For instance, in the case of Gold Issue Mining & Milling Co. v. Pennsylvania Fire Insurance Co., supra, and Pennsylvania Fire Insurance Co. v. Gold Issue Mining & Milling Co., supra, the plaintiff was a non-resident, while in the case of Stone v. Insurance Co., 78 Mo. 655, which was cited with approval by the Supreme Court of the United States, in the case of New York, L. E. & W. Railroad Company v. Estill, 147 U. S. 591, the plaintiff was a resident of this State; and in each of those cases this court and *518tlie Supreme Court of tlie United States held that the plaintiff, whether resident or non-resident, could bring the suit in any county in this State.
The case of Railroad v. Estill, supra, was not against an insurance company, but against a railroad company, yet notwithstanding that fact the court in that case held that under Sections 3483 and 3481, the same as Sections 1751 and 1754, Revised Statutes 1909, the plaintiff might sue the defendant in Saline County and have service of process in any county of the State where the defendant had an agént.
While in my opinion that case correctly construed the statutes mentioned, yet for the reason stated by this court in the cases of State ex rel. St. Joseph Lead Company v. Jones, supra, the case of Stone v. Insurance Co., supra, was not an authority in support of the ruling announced by the learned court in that case, for the reason that the Stone suit was against a foreign insurance company and service was had under Section 6013, Revised Statutes 1879, which in so far as is here material was practically the same as Section 7042, Revised Statutes 1909, which, in substance, provides that suit may be brought in any county in the State, and service had upon the company’s agent appointed for that purpose. The former opinion was construing the general practice act of the State, while the latter was construing the statute specially applicable to service of process in suits against foreign insurance companies. But independent 'of that, the Supreme Court of the United States in the case of New York, L. E. & W. Railroad ' Company v. Estill, supra, clearly held that such legislation was valid, and gave effect to the construction it understood this court had placed upon it.
Section 6013, Revised Statutes 1879, as previously stated, was amended in 1885, so as to read as we now have it in Section 7042, Revised Statutes 1909, which undertook to make it plain that foreign insurance companies doing business in this State might be sued in any county in the State, and service had upon the *519Superintendent of Insurance, which was in harmony with, the previous rulings of this court and that of the Supreme Court of the United States in the cases cited.
It was upon this principle that the Gold Issue Mining cases were decided.
To hold otherwise,. that is that a non-resident of this State may sue a foreign insurance company doing business in this State in any county hereof and that ,a resident cannot sue such a company in any such county, would clearly violate Section 1 of the Fourteenth Amendment of the Constitution of the United States, which provides that: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, nor shall any State deprive any person of life, liberty, or property without due process of law, or deny to any person within its jurisdiction the equal protection of' the laws.” -Also Section 2 of Article 4 of the Constitution of the United States, -which provides that: “The citizens of each State shall be entitled to all privileges and immunities of citizens in the several States.” Likewise such a ruling would violate section 30 of Article 2 and Section 53, Subdivision 26, of Article 4 of the Constitution of Missouri. The first provides: “That no person . shall be deprived of life, liberty or property without due process of law,” and the latter prohibits the Legislature from granting “to any corporation, association or individual any special or exclusive right or privilege or immunity.”
ofULaw?CeSS
Judge Sherwood, in the case of In re Flukes, 157 Mo. 125, in discussing the constitutionality of Section 2356, Revised Statutes 1899, which under a heavy penalty prohibited any creditor residing in this State from sending or transferring any note, account, chose in action, etc., due Mm by a resident wage-earner of this State, to a person in another State for the purpose of being sued thereon by attachment, and garnisheeing the wages of such wage-earner, in the courts of the State, when such wages were exempt from execution under the laws of *520this State, after quoting the constitutional provisions previously mentioned, held that said statute violated all of said constitutional provisions, and among other things said:
“As is said by an eminent Judge: ‘The rights thus guaranteed are something more» than the mere privileges of locomotion; the guarantee is the negation of arbitrary power in every form which results in a deprivation of a right.’ [2 Story on Const. (5 Ed.), sec. 1950.:] ‘These terms, “life,” “liberty,” and “property,” are representative terms and cover every right to which a member of the body politic is entitled under the law. Within their comprehensive scope are embraced the right of self-defense, freedom of speech, religious and political freedom, exemption from arbitrary arrests, the right to buy and sell as others may, —all our liberties — personal, civil, and political; in short, all that makes life worth living, and if none of these liberties can any one be deprived, except by due process of law.’ [State v. Julow, 129 Mo. 163.]
“Now, as elsewhere stated, each of the rights heretofore mentioned, carries with it as its natural and necessary coincident, all that effectuates and renders complete and full, unrestrained enjoyment of that right. And it has been determined by this court and numerous .other courts that no one can be deprived of a vested right of action, without infringing on that provision of our Constitution and that of the United States respecting the deprivation of life, liberty and property without due process of law. [Leete v. State Bank of St. Louis, 115 Mo. 184; s. c., 141 Mo. 584.]
“And this court has also determined that it does not lie in the power of the Legislature to make that act a crime which consists in the bare exercise of a simple constitutional right. [State v. Julow, supra.] The right to bring a suit to enforce a contract is part and parcel of that contract, and one of the essential attributes of property of which the owner cannot be deprived if the organic law of both State and Nation be obeyed. [People ex rel. v. Otis, 90 N. Y. 48.]
*521“The act under discussion also deprives any creditor as therein mentioned of the equal protection of the laws and abridges the privileges and immunities of citizens of the United States, and denies to such creditors those rights, which Section 2 of Article 4 of the Constitution of the United States grants to them by declaring that ‘the citizens of each State shall he entitled to all privileges and immunities of citizens in the several states.’ A citizen of New .York or of California could bring just such a suit as the petitioner has brought, and be held wholly blameless.
“The act is also obnoxious to the charge that it grants special and exclusive privileges to certain persons or association of persons, and denies the same to others in the same or similar situations. Judge Cooley says: ‘A statute would not be constitutional . . . which should select particular individuals from a class or locality, and subject them to peculiar rules, or impose upon them special obligations or burdens from which others in the same locality or class are exempt . . . Every one has a right to demand that he be governed by general rules, and a special statute which, without his consent, singles his case out as one to be regulated by a different law from that which is applied in all similar cases, would not be legitimate legislation, but would be such an arbitrary mandate as is not within the province of free governments.’ [Cooley, Const. Lim. (6 Ed.), 481-483.]”
Since the delivery of that opinion the Supreme Court of the United States and this court have repeatedly affirmed the principles of law expressed by Judge Sheuwood in the following cases: International Textbook Co. v. Pigg, 217 U. S. 91, l. c. 111; Chambers v. Baltimore & Ohio R. R. Co., 207 U. S, 142, l. c, 148 ; International Textbook Co. v. Gillespie, 229 Mo. 397; United Shoe Machine Co. v. Ramlose, 231 Mo. 508; Roeder v. Robertson, 202 Mo. 522; British-American Portland Cement Co. v. Citizens’ Gas Co., 255 Mo. l. c. 29; Gold Issue Mining & Milling Co. v. Pennsylvania Fire Insurance Co., 267 Mo. 524, l. c. 591 to 593.
*522In brief, Judge Sherwood,' in the Flukes case, held that under both the State and Federal constitutions a statute -which denied to a citizen of this State the right to sue his creditor on a certain class of claims, though also a resident of this State, in the courts of another State by attachment and garnishment, when a creditor of his in that State might sue him on the same class of claims in the Courts of this State, was unconstitutional, null and void, because it denied to the citizen of this State the equal protection of the laws thereof.
I am therefore of the opinion that the majority opinion in this case does not correctly construe section 7042, Revised Statutes 1909, if the -Gold Issue Mflning cases and those announcing a similar rule were properly decided.
I, therefore, dissent from the majority opinion, and believe that the preliminary writ should be quashed.