same parties is a final bar to any other suit for BLAISDELL v. INHABITANTS OF TOWN the same cause of action, and is conclusive, not only as to all matters which were tried, but also as to all which might have been tried in the

(Supreme Judicial Court of Maine. Nov. 2, first action."

HANSON, J. This action of assumpsit is Whether the requirements of Pub. Laws brought to recover of the defendant for cer- foreign corporations as a condition precedent to 1911, c. 152, imposing certain requirements upon tain services alleged to have been performed obtaining authority to do business in the state, for it by the plaintiff. The defendant pleads imposed a material or direct burden on a fora former judgment in bar. The former judg-eign corporation's right to engage in interstate ment is the one directed by this court in Blaisdell v. York, 110 Me. 500, 87 Atl. 361. The case comes before us on report.

"It is a fundamental rule of law that, conceding jurisdiction, regularity in proceedings, and tiff. Ellery Bowden, of Winterport, for de the absence of fraud, a judgment between the fendant.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

KING, J. By chapter 152, Public Laws of may be safely said that it is the settled doc1911, every foreign corporation, with some trine that the power so given to Congress exceptions not material here, which has a to regulate interstate commerce is exclusive usual place of business in this state or which as to all matters that admit of and require is engaged in business in this state perma- uniformity of regulation affecting alike all the nently or temporarily without a usual place states, and that state legislation, except.in of business therein, is required, before doing matters of local concern only, which imposes business in this state, to appoint a resident a direct burden on interstate commerce or of the state its attorney upon whom all law-interferes directly with its freedom, is inful processes against it may be served, and valid because it encroaches upon such exto file such appointment in the office of the clusive power of Congress. This doctrine secretary of state and pay therefor a fee has been so often and uniformly stated in the of $10. The act further requires every such decisions of both the federal and state courts corporation, before transacting business in that the citation of authorities in its supthis state, upon payment of an additional port seems unnecessary. We will, however, fee of $10, to file with the secretary of state refer to the quite recent decision in Sioux a copy of its charter, articles of or certifi- Remedy Co. v. Cope, 235 U. S. 197, 35 Sup. cate of incorporation, a copy of its by-laws, Ct. 57, 59 L. Ed. 193, where the court said: and a certificate setting forth its name, the location of its principal office, the names and addresses of its officers and directors, the date of its annual meeting, the amount of its capital stock authorized and issued, the number and par value of its shares, and the amount paid thereon to its treasurer. The officers and directors are made subject to penalties and liabilities for false and fraudulent statements and returns, and for failure to comply with the requirements of the act, and it is also stipulated therein that such failure shall not affect the validity of any contract with such corporation

This action comes up on report. It was brought in the Supreme Judicial Court for Waldo county, and the plaintiff therein seeks to recover $862.50 as the purchase price of 25 tons of fertilizer sold and delivered by it to the defendant a resident of Winterport in said county.

The plea is the general issue, with brief statement, alleging that the plaintiff had not complied with the requirements of chapter 152 of the Public Laws of 1911.

"Through a long series of decisions dealing with the scope and effect of the commerce clause it has come to be well settled that a state, while possessing power to adopt reasonable measures to promote and protect the health, safety, morals and welfare of its people, even though interstate commerce be incidentally or indirectly affected, has no power to exclude from its limits foreign corporations or others engaged in interstate commerce, or by the imposition of conditions to fetter their right to carry on such commerce, or to subject them in respect to their unreasonable or pass beyond the bounds of suittransactions therein to requirements which are able local protection."

It is plain, therefore, that the correct determination of this case requires something more than merely ascertaining if the plaintiff was "doing business in this state." The fundamental inquiries here are: First, did the plaintiff's cause of action arise out of an interstate commerce transaction, or out of an intrastate transaction? and, second, do the requirements of the state statute invoked, when applied to this case, materially or directly burden interstate commerce?

It has been said that the word "commerce" as used in the Constitution is a term of the largest import, and not susceptible to exact born in Butler Bros. Shoe Co. v. United and comprehensive definition. Judge SanStates Rubber Co., 156 Fed. 1, 17, 84 C. C. A.

167, said:

"Importation into one state from another is the indispensable element, the test, of interstate commerce; and every negotiation, contract, trade, and dealing between citizens of different

merce."

It is urged that noncompliance by the states, which contemplates and causes such importation, whether it be of goods, persons, or plaintiff with the requirements of the stat-information, is a transaction of interstate comute can only be taken advantage of by plea in abatement. We will, however, for the purposes of this case, assume otherwise, and come directly to the question whether the plaintiff's failure to comply with the statute prevents it maintaining this action. There are certain principles, now well established by controlling decisions, which will, we think, guide us readily to a proper determination of the question here involved.

The Constitution of the United States gave to Congress the power to regulate commerce with foreign nations and among the several

Certainly it is beyond question that a contract of sale of merchandise between citizens of different states which contemplates the transportation of such merchandise from one state into another is a transaction of interstate commerce.

[1] From the report, and the briefs of counsel, we find that on April 8, 1915, the defendant signed a written order, directed to the plaintiff, for the fertilizer. It was for his own use as a consumer, and was to be paid for by him in December following. The

salesman in Maine, one A. J. Clark, of Ban- which hold that particular state statutes and gor. Mr. Clark sent the order, with a prop-regulations, found to be similar in all maerty statement signed by the defendant, to terial respects to the statute here invoked, do the plaintiff at its office in Baltimore for ap- impose material and direct burdens on interproval. The order was approved and the state commerce. In International Text-Book fertilizer was shipped by the plaintiff from Co. v. Pigg, supra, the Supreme Court of the Baltimore, Md., to the defendant at Winter- United States had before it the question port, Me., and it was received and accepted whether a Kansas statute, which imposed by him. We can entertain no doubt that this certain requirements upon foreign corporawas an interstate transaction. It was a con- tions, as a condition precedent to obtaining tract of sale of merchandise by a corporation authority to do business in that state, was in Maryland to a citizen in Maine, which repugnant to the commerce clause of the Concontract contemplated, what was in fact stitution as being an unlawful interference done, that the merchandise was to be shipped with interstate commerce. And the court from the seller in one state to the purchaser held that the state statute was unconstituin another state. Such a transaction is tional. The Kansas statute was very similar clearly interstate commerce. Nor was that to our statute here invoked. It required such transaction any the less interstate commerce foreign corporations, among other things, to because of the fact, offered in evidence by the file with the secretary of state a statement defendant, that the larger part of the busi- setting forth its authorized and paid-up capiness of the plaintiff's traveling salesman was tal stock, the par and market value of its the taking of orders for its fertilizers from shares, the post office addresses of its shareso-called local agents in this state to be by holders and the number of shares held and them sold to consumers in their respective paid for by each, the names and post office localities. With such local agents the plain- addresses of its various officers and directors, tiff made written contracts, the import of etc. And like the Maine act, the Kansas which appears to be an agreement for the statute (Gen. St. 1901, § 1283) provided that: consignment of its fertilizers to such local "No action shall be maintained or recovery had agents for sale. But we are not called upon in any of the courts of this state by any corporation doing business in this state without first in this case to decide whether the transac- obtaining the certificate of the secretary of tions which the plaintiff had with its so-call-state that statements provided for in this section ed local agents constituted interstate com- have been properly made." merce, or only intrastate business. If it be a fact that the plaintiff was also engaged in intrastate business in this state, that fact, of course, could not change the character of its transaction with the defendant, which plainly was interstate commerce. The plain-denies its right to invoke the authority of a tiff may have been engaged in both an interstate and an intrastate business. And the principle to be kept in mind, as the guide to the correct determination of this case, is that the plaintiff had the right to engage in its interstate commerce with the defendant without having the same materially or directly burdened by any state regulation. In International Text-Book Co. v. Pigg, 217 U. S. 91, 30 Sup. Ct. 481, 54 L. Ed. 678, 27 L. R. A. (N. S.) 493, 18 Ann. Cas. 1103, the

court said:

"To carry on interstate commerce is not a franchise or a privilege granted by the state; it is a right which every citizen of the United States is entitled to exercise under the Constitution and laws of the United States; and the accession of mere corporate facilities, as a matter of convenience in carrying on their business, cannot have the effect of depriving them of such right, unless Congress should see fit to interpose some contrary regulation on the subject.'

[2] Do the requirements of chapter 152 of the Public Laws of 1911 impose a material | or direct burden on the plaintiff's right to engage in interstate business? The question is a federal one, and in its determination this court is controlled by the decisions of the federal Supreme Court so far as applicable.

In that case the court, speaking by Mr. Justice Harlan, said:

"In other words, although the Text-Book Company may have a valid contract with a citizen of Kansas, one directly arising out of and connected with its interstate business, the statute

Kansas court to enforce its provisions unless it does what we hold it was not, under the Constition, bound to do, namely, make, deliver, and file with the secretary of state the statement required by section 1283. If the state could, under any circumstances, legally forbid its courts from taking jurisdiction of a suit brought by a corporation of another state, engaged in interstate business, upon a valid contract arising out of such business and made with it by a citizen of a condition of its authority to carry on its inKansas, it could not impose on the company, as terstate business in Kansas, that it shall make, deliver, and file that statement with the secretary of state, and obtain his certificate that it had been properly made."

In Buck Stove & Range Co. v. Vickers, 226 U. S. 205, 33 Sup. Ct. 41, 57 L. Ed. 189, the decision in the Pigg Case was expressly approved and followed.

A question in every way similar to the one involved in the case at bar was before the Supreme Court in Sioux Remedy Co. v. Cope, 235 U. S. 197, 35 Sup. Ct. 57, 59 L. Ed. 193. In that case an action was brought in South Dakota by an Iowa corporation to recover the price of merchandise sold by the plaintiff to citizens of South Dakota and to be shipped into that state from Iowa. A plea was interposed by the defendants to the effect that the plaintiff had not complied with a

2. MASTER AND SERVANT 279(2)—INJURIES ty, we reaffirm what was said in the opinion TO SERVANT

[3] The only other evidence of the incompetency or negligence of Pearl Bradstreet, as claimed by the plaintiff, is the inference that is sought to be drawn from the occurrence of the accident complained of. "Incompetency cannot be inferred from a single act of negligence." Even if the accident, as the plaintiff claims, showed Pearl Bradstreet a negligent and incompetent servant, before the master could be held responsible the evidence must show that the defendant knew, or, by the exercise of due care should have known, that he was an incompetent and negligent servant. This must be known, or by the exercise of due care should have been known, before the accident. Knowledge after the accident is not sufficient. Igo v. Boston Elevated R. R. Co., 204 Mass. at page 202, 90 N. E. 574; Montgomery Nat. Bank v. Chandler, 144 Ala. 286, 39 South. 822, 113 Am. St. Rep. 39; Baulec v. N. Y. & Harlem R. R. Co., 59 N. Y. 356, 17 Am. Rep. 325.

[1] The plaintiff claims that it is proved common knowledge of men that it is entitled that Pearl Bradstreet was an incompetent to no credence. and negligent servant, because several years before this accident he met with an accident in operating an elevator. The testimony upon this point shows that on the day of the accident Mr. Bradstreet had been out on a building the defendant was constructing; that it had been snowing, and that when he went into the engine room the engineer wished to be relieved, and Mr. Bradstreet took his place; that there was snow upon his boots or shoes; that because of the snow his foot slipped on the brake and entered some part of the machinery which jammed his toes, severing one of them; that from this injury blood poisoning developed, and his leg was amputated a few inches above the knee. We do not think that because, in a climate like ours, a person gets snow upon his shoes and slips, he should be considered incompetent to operate a hoisting elevator. That was an accident liable to happen to the most prudent, although not always attended with such unfortunate results, and has no tendency to prove that five years afterwards he was an incompetent servant.

As the evidence did not authorize the jury to find that Pearl Bradstreet was incompetent to operate the hoisting engine and elevator at the time of the accident, their verdict must have been reached by a misap

dice, or sympathy for the plaintiff in his mis-
fortune, and the mandate must be:
Motion sustained. New trial granted

(115 Me. 408)

WILDER et al. v. WILDER et al.
(Supreme Judicial Court of Maine.
1916.)

Nov. 18,

[2] Another fact which the plaintiff claims authorized the jury to find that Pearl Bradstreet was incompetent is that; 5 years be-prehension of the evidence, or by bias, prejufore, it is the claim of the plaintiff, he was operating a hoisting engine, and was given the proper bells to lower the elevator, and he lowered it very swiftly to within two or three feet of the basement floor. No one was injured, and no notice was given him to stop the elevator at any particular place. Assuming that all the plaintiff's brother testifies to is true, it is no proof that Pearl Bradstreet was either incompetent or negligent. The lowering once of a freight elevator, used for the carrying of material for the construction of a building, a few feet below the floor where the fellow servant wished the elevator to stop, as testified to by the witness, is not evidence of negligence, when there was no accident or danger of any injury to any person. It was an occurrence such as frequently happens with prudent men on both freight and passenger elevators.

The plaintiff introduced the testimony of two witnesses, claiming them to be experts, to prove the incompetency of Pearl Bradstreet to operate the hoisting engine and elevator, and they state that 12 years is the time recognized in the business as the time required "to learn to operate a hoisting engine, learn the management of the thing." It is evident that the purpose of this testimony was to lead the jury to believe that 12 years was the time necessary to learn to operate a hoisting engine. If that was the purpose, it was such reckless and incredible testimony that it neither proved, nor tended to prove, the statement made by the witnesses. It is so improbable, incredible, and contrary to the

WILLS 695(2)-SUIT TO CONSTRUE WILL
AND TRUST DEED-STATUTE.

Under Rev. St. c. 79, § 6, par. 8, authorizing a bill in equity to construe wills, etc., the Supreme Judicial Court cannot entertain a bill to construe a will and trust deed together, where the parties interested in the will, probated in Massachusetts a number of years before, had felt no doubts as to its construction, and had executed deeds pursuant to its provisions, the suit being really for the construction of a deed given by the executors and trustees under the will and the trust deed given by their grantee, which deeds touched different property and beneficiaries than the will, since, to authorize a suit, the language of the will must be such that the parties reasonably have doubts concerning its true construction.

Dig. § 1667; Dec. Dig. 695(2).]
[Ed. Note.-For other cases, see Wills, Cent.

Report from Supreme Judicial Court, Waldo County, in Equity.

Bill in equity by Frank B. Wilder and others against Walter Morse Wilder and others. Case reported. Decree dismissing the bill directed in accordance with the opinion.

Argued before SAVAGE, C. J., and CORNISH, KING, BIRD, HALEY, and PHILBROOK, JJ.