Montana Attorney General Opinion 16-54

Opinion No. 54. Secretary of State - Corporations, Foreign, Contracts with United States-Filing Annual Report. HELD: Neither Sec. 6651, R. C. M. 1921, requiring certain foreign cor- OPINIONS OF THE ATTORNEY GENERAL 51 porations desiring to do business in the state to file copy of charter and statement with the secretary of state, nor Chapter 169, Laws of 1931, re- quiring such corporations to pay cer- tain fees when filing their charter and requiring the filing of an annual statement with the secretary of state, contemplate the regulation of foreign corporations that are exclusively en- gaged in employment by the United States Government. Hon. Sam W. Mitchell Secretary of State The Capitol March 6, 1935. In your letter of March I, you have asked for our opinion upon the fol- lowing question: "Is a foreign cor- poration, exclusively engaged in the performance of construction contracts for the United States Government in this state, required to file an annual report and otherwise comply with Chapter 169, Laws of Montana, 1931 ?" Section 6651, R. C. M. 1921, requires certain foreign corporations desiring to do business in this state, to file a copy of their charter and a statement with the secretary of state. Chapter 169, supra, requires such corporations to pay certain fees when filing their charters and to file an annual state- ment with the secretary of state "stating the proportion of its capital stock represented in the State of Montana by its property located and business transacted therein during the preceding year" and in some in- stances to pay an additional fee upon the filing of such annual statement. It is our opinion that neither Sec- tion 6651 nor Chapter 169, cited above, contemplate the regulation of corpor- ations that are exclusively engaged in employment by the United States Government. The general rule of law applicable is stated in 14a C. J. 1256: "So every corporation of any state in the employ of the United States has the right to exercise the necessary corporate pow- ers and to transact the business re- quisite to discharge the duties of that employment in every other state in the Union without permission grant- ed, or conditions imposed by the lat- ter." And again in Thompson on Corpor- ations, 3rd Edition, Volume 8, Section 6592: "Another exception to the gen- eral rule of unlimited state control over foreign corporations occurs where the corporation is engaged in the business of the general govern- ment. Such corporations to the ex- tent of the federal business, may do such business in other states without obtaining a license or other permit, and even against the prohibition of the state. A state may lawfully pro- hibit foreign corporations other than those engaged in interstate or for- eign commerce or which are employed by the federal government from transacting business in the state without first obtaining a permit." Mr. Justice Bradley's illustration of the rule in Stockton v. Baltimore & New York Railroad Company, 32 Fed. Rep. 9, that "if Congress should em- ploy a corporation of shipbuilders to construct a man of war, they would have the right to purchase the neces- sary timber and iron in any state of the Union," is often quoted with ap- proval. Mr. Justice Field said, in quoting the illustration, "and we may add, without the permission and against the prohibition of the state." (Pembina Mining Company v. Penn- sylvania, 125 U. S. 181, 31 L. Ed. 650, 8 Sup. Ct. 737.) Of course, the above rule, which is an exception, does not extend to for- eign corporations doing business in this state for two or more customers, one of whom is the federal govern- ment and others who are private indi- viduals. (State v. Western Union Telegraph Company, 75 Kan. 609, 90 Pac. 299.) Their situation is similar to foreign corporations engaged both in interstate and intrastate com- merce. (Chicago, Milwaukee, St. Paul & Pacific Rd. Co. v. Harmon, 89 Mont. I, 295 Pac. 762; also 14a C. J. 1248.) From what has been said above, however, your question must be an- swered in the negative.