Olmstead v. American Granby Co.

THOMAS, Justice,

specially concurring, with whom RAPER, Justice, joins.

I agree with the majority of the Court that the district court does have jurisdiction over these several defendants pursuant to § 5-4.2, W.S. I am sure that we all are in accord that that ratiocination is imperative when critical constitutional issues are presented for resolution.

My analysis leads me to the conclusion that in Wyoming it no longer is necessary to consider separately the reach of the statute and the question of constitutional due process. These concepts have been merged in the halls of the legislature which, for the State of Wyoming, has defined those minimum contacts resulting in the power of a Wyoming court to exercise personal jurisdiction in a circumstance involving a tor-tious injury within our state. In § 5-4.2, W.S., the minimum contacts are described in three alternatives, each of which has been expressed both qualitatively and quantitatively. The doing or soliciting of business in this state is a qualitative contact which quantitatively must occur regularly. Alternatively, engaging in any other course of conduct within this state is a qualitative contact which quantitatively must be persistent. The third alternative, deriving revenue from goods consumed or services used in this state is a qualitative contact which quantitatively must be substantial. In adopting these definitions it will not be presumed that the legislature intended that the act infringe upon constitutional limita*117tions. Hanson v. Town of Greybull, 63 Wyo. 467, 183 P.2d 393 (1947).

I am not persuaded that the conclusion of the majority that the legislature intended to “extend state court jurisdiction to the constitutional limit” is correct. Certainly it did intend to augment other bases of jurisdiction, but the nature of the activities described and the adjectives used in the statute might well stop short of the constitutional limits. In this regard I find myself in agreement with the analysis and construction of our statute found in Pullen v. Hughes, 481 F.2d 602 (10th Cir. 1973).

The approach that I espouse undoubtedly is mooted by the adoption of Chapter 178, Session Laws of Wyoming, 1977, which repealed the statute presented for construction in this case, and substituted the broadest possible jurisdictional approach. The adoption of that statute, however, serves as some evidence that the legislature was concerned that it had not previously extended jurisdiction to the constitutional limits. See Payne v. City of Laramie, Wyo., 398 P.2d 557 (1965). The analysis of jurisdiction found in the majority opinion would be appropriate if the 1977 statute were in question, but in this instance all that needs to be done is to apply the statute, § 5-4.2(a) (iv), W.S. to the facts. If the facts come within the statute then jurisdiction exists within the constitutional limits.

Pursuing that approach American Gran-by Company in maintaining wholesale contacts in Wyoming to the extent that it does, on this record, qualitatively did solicit business in this state, and quantitatively did that regularly. State Stove and Manufacturing Company, Inc., admitted that it had a dealer in Sheridan, Wyoming, and in this manner it qualitatively did solicit business in this state, and quantitatively it did that regularly. Billings Pipe and Pump Supply Co., qualitatively did derive revenue from goods consumed in Wyoming, and quantitatively that revenue was substantial. Since all three defendants come within the language of the statute I agree that the district court did have jurisdiction over each of them.

I also believe that it is important not to rely upon cases construing § 17-36.104, W.S. and its predecessors in construing and applying our “longarm” statute. Those cases which dealt with the issue of whether a defendant was doing business in Wyoming have only historical and policy connotations so far as the issues of this case are concerned. By the introductory language in § 5-4.2, W.S., it is clear that it is intended to authorize the exercise of personal jurisdiction in situations beyond those in which personal jurisdiction would exist under § 17-36.104, W.S., and for that reason those cases construing § 17-36.104 would not reach to the issues of personal jurisdiction which are encompassed in § 5-4.2. If the defendants were doing business within this state so that § 17-36.104, W.S. could be invoked, there would be no necessity to discuss § 5-4.2, W.S.