I am unable to agree with the result reached by the majority in this case, as I was unable to agree with the result reached by the majority in Davidson v. Henry L. Doherty Co., 214 Iowa 739, 241 N.W. 700.
It is the theory of the majority that the Davidson case decides the present controversy, and that the rule of stare decisis precludes a dissent at this time. The rule of stare decisis would control were the controversy here one to be finally determined by this court; but a federal constitutional question is involved. Therefore, the judgment of this court is not final. A former decision of this court does not make a result constitutional if, in fact, the judgment which brings about such result is in conflict with the Constitution of the United States.
Under the circumstances of this record, it is my belief that the courts of Iowa have no constitutional power to render a judgment in personam against the appellant, Henry L. Doherty, for the reason that he has not been served with notice of the suit within this state. Doherty has not been present in the state, although he conducted business here through an agent. He is a resident of New York state, and a nonresident of the state of Iowa. His agent in Iowa had no contractual authority to accept, on his behalf, the service of the notice of suit in this state; nor did such agent, because of contract, constitute a person upon whom substituted service of the notice of suit could be made upon Doherty.
Section 11079 of the 1931 Code of Iowa, relied upon by the majority, does not purport to make the appointment of an agent a prerequisite to Doherty's right to do business in this state. That section contains the following provisions:
"When a corporation, company, or individual has, for the transaction of any business, an office or agency in any county other than that in which the principal resides, service may be made on any agent or clerk employed in such office or agency, in all actions growing out of or connected with the business of that office or agency." *Page 533
It was said by this court in Davidson v. Doherty Co. (214 Iowa 739, 241 N.W. 700), supra, that the foregoing section gave Davidson the right to sue Doherty in Iowa by serving the notice of suit on Doherty's Iowa agent in Polk county.
Consequently, if Doherty's agent in Iowa possessed the power to be served with an original notice of a suit on Doherty, such power must have arisen through contract or statute. But such contract did not exist. If, on the other hand, section 11079, relied upon by the majority, contrary to its terms attempts, by some theory or other, to make the appointment of an agent who can be served with notice of suit in Iowa a prerequisite for Doherty's right to do business in this state as an individual, then the same becomes unconstitutional, because under the federal constitution the state of Iowa has no right to render personal judgment against a nonresident person not properly served with notice in this state. Flexner v. Farson, 248 U.S. 289, 39 S. Ct. 97, 63 L. Ed. 250. See, also, Hess v. Pawloski, 274 U.S. 352, 47 S. Ct. 632, 71 L. Ed. 1091. Before the adoption of the federal constitution, each state, as is well known, was an independent nation theoretically, at least, possessing all the powers and prerogatives of any independent nation. When the federal constitution was adopted, these free and independent states did not surrender all their powers to the federal government, but only those expressly or impliedly named in or prohibited by the federal constitution. Other powers of these states were retained by them. See the Tenth Amendment to the Constitution of the United States. So one state has no power over the citizens of another state, except as provided by the federal constitution. Prior to the adoption of the federal constitution, a citizen of one state could not, through a court action, acquire jurisdiction over a citizen of another state, except by going into the foreign state. Likewise, under the constitution, a citizen of one state cannot, through a court action, acquire jurisdiction of a citizen of another state without going into that state, except as provided by the Constitution of the United States.
The suit in question does not involve an action in rem growing out of an attachment or other process on Doherty's property within the state of Iowa. Moreover, the suit in question does not involve a statute of the state of Iowa passed under its police power. No doubt, under the Securities Act, the state of Iowa could require Doherty, as a prerequisite to his doing business in Iowa, to appoint an agent *Page 534 upon whom substituted service on the principal could be made in Iowa. That authority exists in Iowa because of its police power. As said before, however, the police power of Iowa is not involved in section 11079 of the 1931 Code. Nor is this a case like that involved in Hess v. Pawloski (274 U.S. 352, 47 S. Ct. 632, 71 L. Ed. 1091), supra, and like cases. There the nonresident, by operating his automobile in a nonresident state, consented that the registrar of the foreign state would thereby be constituted an agent for the nonresident automobile driver, upon whom notice of suit for a tort growing out of the operation of the automobile in the foreign state might be served. Plainly, however, this authority of the foreign state is based upon the police power of that state, including the power to regulate its own highways. Furthermore, in the highway case just contemplated, the defendant actually was in the foreign state, and while there committed the tort which gave rise to the court action.
At this juncture we must not confuse the law applicable in the case at bar with the law relating to the service of notice on foreign corporations. A corporation, being an artificial person, is by fiction considered to be within the state when it transacts business therein. Limitations may be made a prerequisite which must be met by the foreign corporation before it can enter a state. That is true even though the same prerequisite could not be required of an individual before entering the state. There must be no confusion, therefore, when the law applicable to the case at bar is compared with the law relating to the service of notice on foreign corporations. A clear distinction exists between the two principles of law. So in the case at bar it is manifest that the district court in Iowa did not obtain jurisdiction to render a personal judgment against the appellant Doherty.
For the sake of brevity, I adopt and add hereto by this reference the dissenting opinion written by the late Mr. Justice Morling in the case of Davidson v. Henry L. Doherty Co. (214 Iowa 739, 241 N.W. 700), supra. *Page 535