National Mutual Building Loan Association of New York v. Brahan/Opinion of the Court
[Argument of Counsel from pages 641-643 intentionally omitted]

Messrs. Edward Mayes and R. C. Beckctt for defendant in error.

[Argument of Counsel from pages 643-646 intentionally omitted]

It is objected that the Federal questions presented cannot be considered 'because they were not raised in time and the proper way,' and that the supreme court did nothing more than decline to pass on the questions because they had not been raised in the trial court, as required by the state practice.

The supreme court considered that plaintiff in error, by the motions to amend the notice, attempted to 'inject' a Federal question into the record, and that the instruction asked by the plaintiff in error had the same purpose. The court said: 'It was another ingenious but unsuccessful effort to inject the Federal question into the record. If the court had allowed the amended notice and pleas to be filed, which presented nothing on the merits, but simply the alleged Federal question, then there would have been an issue involving the Federal question, to which an instruction would have been appropriate.'

Upon the ruling of the court upon the amendments to the notice we are not called upon to express an opinion; but, we think, it is very clear that plaintiff in error was entitled to claim rights under the Constitution of the United States, based upon the case as presented. And if the rights asserted actually existed, plaintiff in error was entitled to an instruction directing a verdict in its favor. The claim was, therefore, made in time. Green Bay & M. Canal Co. v. Patten Paper Co. 172 U.S. 58, 43 L. ed. 364, 19 Sup. Ct. Rep. 97; Rothschild v. Knight, 184 U.S. 334, 46 L. ed. 573, 22 Sup. Ct. Rep. 391; Meyer v. Richmond, 172 U.S. 82, 43 L. ed. 374, 19 Sup. Ct. Rep. 106; Mallett v. North Carolina, 181 U.S. 589, 45 L. ed. 1015, 21 Sup. Ct. Rep. 730; Dewey v. Des Moines, 173 U.S. 193, 43 L. ed. 665, 19 Sup. Ct. Rep. 379. It was also sufficient in form.

The Federal questions presented by the record are reducible to two,-to wit: (1) That the decision of the supreme court of Mississippi was in effect an impairment of the contract between plaintiff in error and defendant in error. (2) That full faith and credit were not given to the public acts, records, and judicial proceedings of the state of New York.

1. This contention is untenable. We said in Bacon v. Texas, 163 U.S. 207, 41 L. ed. 132, 16 Sup. Ct. Rep. 1023:

'Where the Federal question upon which the jurisdiction of this court is based grows out of an alleged impairment of the obligation of a contract, it is now definitely settled that the contract can only be impaired within the meaning of this clause in the Constitution, so as to give this court jurisdiction on writ of error to a state court, by some subsequent statute of the state which has been upheld or effect given it by the state court. Lehigh Water Co. v. Easton, 121 U.S. 388, 30 L. ed. 1059, 7 Sup. Ct. Rep. 916; New Orleans Waterworks Co. v. Louisiana Sugar Ref. Co. 125 U.S. 18, 31 L. ed. 607, 8 Sup. Ct. Rep. 741; Central Land Co. v. Laidley, 159 U.S. 103, 109, 40 L. ed. 91, 93, 16 Sup. Ct. Rep. 80.'

In the case at bar there was no subsequent statute. There was a change in decision, it is contended, but against a change of decision merely § 10, article 1, cannot be invoked.

2. If the contract between plaintiff in error and defendant in error cannot be regarded as controlled by the law of New York, there is no foundation for the contention that full faith and credit were not given to the public acts and records of New York.

A similar question was presented in the case of New York L. Ins. Co. v. Cravens, 178 U.S. 389, 44 L. ed. 1116, 20 Sup. Ct. Rep. 962. The plaintiff in error in that case was a New York corporation, having its principal place of business in the state of New York. It maintained agents and examiners in the state of Missouri. One of these agents solicited Cravens, at his residence in Missouri, to insure his life in the company. Cravens assented, and made a written application for the policy sued on. The application was made part of the policy and contained the following provisions: 'That inasmuch as only the officers of the home office of the said company in the city of New York have authority to determine whether or not a policy shall issue on any application, and as they act on the written statements and representations referred to, no statements, representations, promises, or information made or given by or to the person soliciting or taking this application for a policy, or by or to any other person, shall be binding on said company, or in any manner affect its rights, unless such statements, representations, promises, or information be reduced to writing and presented to the officers of said company, at the home office, in this application.

'That the contract contained in such policy and in this application shall be construed according to the laws of the state of New York, the place of said contract being agreed to be the home office of said company in the city of New York.'

Four annual premiums were paid in Missouri. The fifth was not paid. Cravens died, and proof thereof was duly made. A controversy arose between the widow of Cravens and the company as to the amount due on the policy. Applying the law of New York, the company contended that there was due only the sum of $2,670 of paid-up insurance, and tendered that amount. The widow contended, applying the law of Missouri, for $10,000, less the amount of unpaid premiums, which left a balance of $8,749.21, with interest at 6 per cent from the date of the death of Cravens, and suit was brought for that amount. She recovered judgment according to her claim, and the case was brought here.

Describing the contentions of the company, we said that they were reducible to one form,-to wit, that the statute of Missouri had been made by the supreme court of Missouri the measure of the rights and obligations of the parties against the agreement of the parties that the contract should be considered as having been made in New York, and should be construed and interpreted according to the laws of that state. The supreme court of Missouri decided that the statute expressed a condition upon which the company, as a foreign corporation, was permitted to do business in the state, and also expressed the public policy of the state which parties could not, by their contracts, contravene. We accepted that interpretation of the statute and affirmed the judgment.

In the case at bar the supreme court of Mississippi gave the same effect to the statute of that state as the supreme court of Missouri gave to the Missouri statute. The court applied and followed the doctrine of Shannon v. Georgia State Bldg. & L. Asso. 78 Miss. 955, 57 L. R. A. 800, 30 So. 51, expressed as follows:

'It must be remembered that the state has the power to prescribe the terms on which foreign corporations may do business. It is declared in § 849 of the Code of 1892, last clause, 'such foreign corporations shall not do or commit any act in this state contrary to the laws or policy thereof, and shall not be allowed to recover on any contract made in violation of law or public policy.' This is the plain mandate of our law, which must be rigidly enforced by the courts. And the Code otherwise provides that (§ 2348) domestic building and loan associations are excluded from the operation of the usury laws, but foreign building and loan associations are subject to them, and to enforce this public policy, thus declared by the statute, is not to give extraterritorial operation to our statutes. On the contrary, this corporation has come into the state, localized its business here through local boards scattered all over the state, and must submit such business thus localized to the operation of the laws of the state. To hold otherwise would operate the grossest injustice to our citizens, and would virtually abrogate our statutes against usury.' And again, on p. 974: 'Foreign corporations wishing to do business wit our citizens, and localizing that business vithin our state through local boards, must comply with the laws of this state. They cannot, under such circumstances, enforce here stipulations in contracts allowed by the law of the state which created them, if these stipulations violate our laws or our public policy. Such laws of such foreign states can have, ex proprio vigore, no extraterritorial effect, and it is not competent for a foreign corporation whose business has been localized in this state, or the borrower, or both, to abrogate, by attempted contract stipulations whose purpose it is to evade our laws against usury, the laws of this state on that subject.

'This holding in no way interferes with the right of a foreign corporation whose business has not been localized here to make contracts with borrowers, to be governed by the laws of the state of their domicil, if there be no purpose therein to evade the usury laws of this state. Such liberty of contracting, exercised in good faith, is not herein interfered with. The authorities cited to that point by counsel for appellee are not pertinent to cases like the one before us. All the cases are admirably collected in a note to Bank of Newport v. Cook, 46 Am. St. Rep. 171. In that note the learned editor points out, on page 202, the distinction to be observed, saying:

"The proper answer to this argument is that mere shams and evasions are not permitted to counteract and annul the law, and where it appears that the purpose of the parties in making the obligation payable in another state was to evade the law against usury of the state in which it was executed, it will be regarded as infected with usury."

These remarks bring the case at bar within the ruling of New York L. Ins. Co. v. Cravens, 178 U.S. 389, 44 L. ed. 1116, 20 Sup. Ct. Rep. 962. The decision of the supreme court is, that plaintiff in error had become 'localized' in the state, had accepted the laws of the state as a condition of doing business there, and could not, nor could defendant in error, 'abrogate, by attempted contract stipulations,' those laws. See John Hancock Mut. L. Ins. Co. v. Warren, 181 U.S. 73, 45 L. ed. 755, 21 Sup. Ct. Rep. 535.

In Chattanooga Nat. Bldg. & L. Asso. v. Denson, 189 U.S. 408, 47 L. ed. 870, 23 Sup. Ct. Rep. 630, we recognized the right of a state to impose conditions upon foreign corporations doing business in the state to the extent of holding the contracts of the corporation void which were entered into in violation of the conditions.

There is nothing inconsistent with these views in Bedford v. Eastern Bldg. & L. Asso. 181 U.S. 227, 45 L. ed. 834, 21 Sup. Ct. Rep. 597. In that case there was a consummated contract, and we held invalid a law enacted subsequently that made the enforcement of the contract depend upon the performance of onerous conditions. There was a question of usury in the case, but Tennessee, under the statute of which state usury was claimed, did not prohibit contracts which made the laws of another state applicable thereto. In that case, therefore, the law of the contract stipulated by the parties could be applied.

Judgment affirmed.

Mr. Justice White took no part in the decision of this case. 

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