342 U.S.

437
72 S.Ct. 413
96 L.Ed. 485

PERKINS
v.
BENGUET CONSOLIDATED MINING CO. et al.
No. 85.
Argued Nov. 27, 28, 1951.
Decided March 3, 1952.
Rehearing Denied March 31, 1952.

See 343 U.S. 917, 72 S.Ct. 645.

Mr. Robert N. Gorman, Cincinnati, Ohio, for petitioner.
Mr. Lucien H. Mercier, Washington, D.C., for respondent.
Mr. Justice BURTON delivered the opinion of the Court.

This case calls for an answer to the question whether the Due Process Clause of
the Fourteenth Amendment to the Constitution of the United States precludes
Ohio from subjecting a foreign corporation to the jurisdiction of its courts in
this action in personam. The corporation has been carrying on in Ohio a
continuous and systematic, but limited, part of its general business. Its
president, while engaged in doing such business in Ohio, has been served with
summons in this proceeding. The cause of action sued upon did not arise in
Ohio and does not relate to the corporation's activities there. For the reasons
hereafter stated, we hold that the Fourteenth Amendment leaves Ohio free to
take or decline jurisdiction over the corporation.

After extended litigation elsewhere 1 petitioner, Idonah Slade Perkins, a

nonresident of Ohio, filed two actions in personam in the Court of Common
Pleas of Clermont County, Ohio, against the several respondents. Among those
sued is the Benguet Consolidated Mining Company, here called the mining
company. It is styled a 'sociedad anonima' under the laws of the Philippine
Islands, where it owns and has operated profitable gold and silver mines. In one

action petitioner seeks approximately $68,400 in dividends claimed to be due

her as a stockholder. In the other she claims $2,500,000 damages largely
because of the company's failure to issue to her certificates for 120,000 shares
of its stock.
3

In each case the trial court sustained a motion to quash the service of summons
on the mining company. Ohio Com.Pl., 99 N.E.2d 515. The Court of Appeals of
Ohio affirmed that decision, 88 Ohio App. 118, 95 N.E.2d 5, as did the
Supreme Court of Ohio, 155 Ohio St. 116, 98 N.E.2d 33. The cases were
consolidated and we granted certiorari in order to pass upon the conclusion
voiced within the court below that federal due process required the result there
reached. 342 U.S. 808, 72 S.Ct. 33, 96 L.Ed. -.

We start with the holding of the Supreme Court of Ohio, not contested here,
that, under Ohio law, the mining company is to be treated as a foreign
corporation.2 Actual notice of the proceeding was given to the corporation in
the instant case through regular service of summons upon its president while he
was in Ohio acting in that capacity. Accordingly, there can be no jurisdictional
objection based upon a lack of notice to a responsible representative of the
corporation.

The answer to the question of whether the state courts of Ohio are open to a
proceeding in personam, against an amply notified foreign corporation, to
enforce a cause of action not arising in Ohio and not related to the business or
activities of the corporation in that State rests entirely upon the law of Ohio,
unless the Due Process Clause of the Fourteenth Amendment compels a
decision either way.

The suggestion that federal due process compels the State to open its courts to
such a case has no substance.

'Provisions for making foreign corporations subject to service in the state is a

matter of legislative discretion, and a failure to provide for such service is not a
denial of due process. Still less is it incumbent upon a state in furnishing such
process to make the jurisdiction over the foreign corporation wide enough to
include the adjudication of transitory actions not arising in the state.' Missouri
P.R. Co. v. Clarendon Co., 257 U.S. 533, 535, 42 S.Ct. 210, 211, 66 L.Ed. 354.

Also without merit is the argument that merely because Ohio permits a
complainant to maintain a proceeding in personam in its courts against a
properly served nonresident natural person to enforce a cause of action which

does not arise out of anything done in Ohio, therefore, the Constitution of the
United States compels Ohio to provide like relief against a foreign corporation.
9

A more serious question is presented by the claim that the Due Process Clause
of the Fourteenth Amendment prohibits Ohio from granting such relief against
a foreign corporation. The syllabus in the report of the case below, while
denying the relief sought, does not indicate whether the Supreme Court of Ohio
rested its decision on Ohio law or on the Fourteenth Amendment. The first
paragraph of that syllabus is as follows:

10

'1. The doing of business in this state by a foreign corporation, which has not
appointed a statutory agent upon whom service of process against the
corporation can be made in this state or otherwise consented to service of
summons upon it in actions brought in this state, will not make the corporation
subject to service of summons in an action in personam brought in the courts of
this state to enforce a cause of action not arising in this state and in no way
related to the business or activities of the corporation in this state.' 155 Ohio St.
116, 117, 98 N.E.2d 33, 34.

11

If the above statement stood alone, it might mean that the decision rested solely
upon the law of Ohio. In support of that possibility we are told that, under the
rules and practice of the Supreme Court of Ohio, only the syllabus necessarily
carries the approval of that court.3 As we understand the Ohio practice, the
syllabus of its Supreme Court constitutes the official opinion of that court but it
must be read in the light of the facts and issues of the case.

12

The only opinion accompanying the syllabus of the court below places the
concurrence of its author unequivocally upon the ground that the Due Process
Clause of the Fourteenth Amendment prohibits the Ohio courts from exercising
jurisdiction over the respondent corporation in this proceeding.4 That opinion is
an official part of the report of the case. The report, however, does not disclose
to what extent, if any, the other members of the court may have shared the view
expressed in that opinion. Accordingly, for us to allow the judgment to stand as
it is would risk an affirmance of a decision which might have been decided
differently if the court below had felt free, under our decisions, to do so.

13

The cases primarily relied on by the author of the opinion accompanying the
syllabus below are Old Wayne Life Ass'n v. McDonough, 204 U.S. 8, 27 S.Ct.
236, 51 L.Ed. 345, and Simon v. Southern R. Co., 236 U.S. 115, 35 S.Ct. 255,
59 L.Ed. 492. Unlike the case at bar, no actual notice of the proceedings was
received in those cases by a responsible representative of the foreign

corporation. In each case, the public official who was served with process in an
attempt to bind the foreign corporation was held to lack the necessary authority
to accept service so as to bind it in a proceeding to enforce a cause of action
arising outside of the state of the forum. See 204 U.S. at pages 2223, 27 S.Ct.
at pages 240241, and 236 U.S. at page 130, 35 S.Ct. at page 260. The
necessary result was a finding of inadequate service in each case and a
conclusion that the foreign corporation was not bound by it. The same would be
true today in a like proceeding where the only service had and the only notice
given was that directed to a public official who had no authority, by statute or
otherwise, to accept it in that kind of a proceeding. At the time of rendering the
above decisions this Court was aided, in reaching its conclusion as to the
limited scope of the statutory authority of the public officials, by this Court's
conception that the Due Process Clause of the Fourteenth Amendment
precluded a state from giving its public officials authority to accept service in
terms broad enough to bind a foreign corporation in proceedings against it to
enforce an obligation arising outside of the state of the forum. That conception
now has been modified by the rationale adopted in later decisions and
particularly in International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct.
154, 90 L.Ed. 95.
14

Today if an authorized representative of a foreign corporation be physically

present in the state of the forum and be there engaged in activities appropriate
to accepting service or receiving notice on its behalf, we recognize that there is
no unfairness in subjecting that corporation to the jurisdiction of the courts of
that state through such service of process upon that representative. This has
been squarely held to be so in a proceeding in personam against such a
corporation, at least in relation to a cause of action arising out of the
corporation's activities within the state of the forum.5

15

The essence of the issue here, at the constitutional level, is a like one of general
fairness to the corporation. Appropriate tests for that are discussed in
International Shoe Co. v. Washington, supra, 326 U.S. at pages 317320, 66
S.Ct. at pages 158, 160. The amount and kind of activities which must be
carried on by the foreign corporation in the state of the forum so as to make it
reasonable and just to subject the corporation to the jurisdiction of that state are
to be determined in each case. The corporate activities of a foreign corporation
which, under state statute, make it necessary for it to secure a license and to
designate a statutory agent upon whom process may be served provide a helpful
but not a conclusive test. For example, the state of the forum may by statute
require a foreign mining corporation to secure a license in order lawfully to
carry on there such functional intrastate operations as those of mining or
refining ore. On the other hand, if the same corporation carries on, in that state,

other continuous and systematic corporate activities as it did hereconsisting

of directors' meetings, business correspondence, banking, stock transfers,
payment of salaries, purchasing of machinery, etc.those activities are enough
to make it fair and reasonable to subject that corporation to proceedings in
personam in that state, at least insofar as the proceedings in personam seek to
enforce causes of action relating to those very activities or to other activities of
the corporation within the state.
16

The instant case takes us one step further to a proceeding in personam to

enforce a cause of action not arising out of the corporation's activities in the
state of the forum. Using the tests mentioned above we find no requirement of
federal due process that either prohibits Ohio from opening its courts to the
cause of action here presented or compels Ohio to do so. This conforms to the
realistic reasoning in International Shoe Co. v. Washington, supra, 326 U.S. at
pages 318319, 66 S.Ct. at pages 159160:

17

'* * * there have been instances in which the continuous corporate operations
within a state were thought so substantial and of such a nature as to justify suit
against it on causes of action arising from dealings entirely distinct from those
activities. See Missouri, K. & T.R. Co. v. Reynolds, 255 U.S. 565, 41 S.Ct.
446, 65 L.Ed. 788;6 Tauza v. Susquehanna Coal Co., 220 N.Y. 259, 115 N.E.
915; cf. St. Louis S.W.R. Co. v. Alexander, supra (227 U.S. 218, 33 S.Ct. 245,
57 L.Ed. 486).

18

'* * * some of the decisions holding the corporation amenable to suit have been
supported by resort to the legal fiction that it has given its consent to service
and suit, consent being implied from its presence in the state through the acts of
its authorized agents. Lafayette Insurance Co. v. French, 18 How. 404, 407; St.
Clair v. Cox, supra, 106 U.S. (350) 356, 1 S.Ct. (354) 359, 27 L.Ed. 222;
Commercial Mutual Accident Co. v. Davis, supra, 213 U.S. (245) 254, 29 S.Ct.
(445) 447, 53 L.Ed. 782; State of Washington v. Superior Court, 289 U.S. 361,
364, 365, 53 S.Ct. 624, 626, 627, 77 L.Ed. 1256. But more realistically it may
be said that those authorized acts were of such a nature as to justify the fiction.
Smolik v. Philadelphia & Reading Co., D.C., 222 F. 148, 151. Henderson, The
Position of Foreign Corporations in American Constitutional Law, 94, 95.

19

'* * * Whether due process is satisfied must depend rather upon the quality and
nature of the activity in relation to the fair and orderly administration of the
laws which it was the purpose of the due process clause to insure. That clause
does not contemplate that a state may make binding a judgment in personam
against an individual or corporate defendant with which the state has no
contacts, ties, or relations. Cf. Pennoyer v. Neff, supra (95 U.S. 714, 24 L.Ed.

565); Minnesota Commercial Assn. v. Benn, 261 U.S. 140, 43 S.Ct. 293, 67
L.Ed. 573.'
20

It remains only to consider, in more detail, the issue of whether, as a matter of

federal due process, the business done in Ohio by the respondent mining
company was sufficiently substantial and of such a nature as to permit Ohio to
entertain a cause of action against a foreign corporation, where the cause of
action arose from activities entirely distinct from its activities in Ohio. See
International Shoe Co. v. Washington, supra, 326 U.S. at page 318, 66 S.Ct. at
page 159.

21

The Ohio Court of Appeals summarized the evidence on the subject. 88 Ohio
App. at pages 119125, 95 N.E.2d at pages 69. From that summary the
following facts are substantially beyond controversy: The company's mining
properties were in the Philippine Islands. Its operations there were completely
halted during the occupation of the Islands by the Japanese. During that interim
the president, who was also the general manager and principal stockholder of
the company, returned to his home in Clermont County, Ohio. There he
maintained an office in which he conducted his personal affairs and did many
things on behalf of the company. He kept there office files of the company. He
carried on there correspondence relating to the business of the company and to
its employees. He drew and distributed there salary checks on behalf of the
company, both in his own favor as president and in favor of two company
secretaries who worked there with him. He used and maintained in Clermont
County, Ohio, two active bank accounts carrying substantial balances of
company funds. A bank in Hamilton County, Ohio, acted as transfer agent for
the stock of the company. Several directors' meetings were held at his office or
home in Clermont County. From that office he supervised policies dealing with
the rehabilitation of the corporation's properties in the Philippines and he
dispatched funds to cover purchases of machinery for such rehabilitation. Thus
he carried on in Ohio a continuous and systematic supervision of the necessarily
limited wartime activities of the company. He there discharged his duties as
president and general manager, both during the occupation of the company's
properties by the Japanese and immediately thereafter. While no mining
properties in Ohio were owned or operated by the company, many of its
wartime activities were directed from Ohio and were being given the personal
attention of its president in that State at the time he was served with summons.
Consideration of the circumstances which, under the law of Ohio, ultimately
will determine whether the courts of that State will choose to take jurisdiction
over the corporation is reserved for the courts of that State. Without reaching
that issue of state policy, we conclude that, under the circumstances above
recited, it would not violate federal due process for Ohio either to take or

decline jurisdiction of the corporation in this proceeding. This relieves the Ohio
courts of the restriction relied upon in the opinion accompanying the syllabus
below and which may have influenced the judgment of the court below.
22

Accordingly, the judgment of the Supreme Court of Ohio is vacated and the
cause is remanded to that court for further proceedings in the light of this
opinion.7

23

It is so ordered.

24

Judgment vacated and cause remanded for further proceedings.

25

Mr. Justice BLACK concurs in the result.

26

Mr. Justice MINTON, with whom the CHIEF JUSTICE joins, dissenting.

27

As I understand the practice in Ohio, the law as agreed to by the court is stated
in the syllabus. If an opinion is filed, it expresses the views of the writer of the
opinion and of those who may join him as to why the law was so declared in
the syllabus. Judge Taft alone filed an opinion in the instant case.

28

The law as declared in the syllabus, which is the whole court speaking, is
clearly based upon adequate state grounds. Judge Taft in his opinion expresses
the view that the opinions of this Court on due process grounds require the
court to declare the law as stated in the syllabus. As the majority opinion of this
Court points out, this is an erroneous view of this Court's decisions. 'This brings
the situation clearly within the settled rule whereby this Court will not review a
State court decision resting on an adequate and independent nonfederal ground
even though the State court may have also summoned to its support an
erroneous view of federal law.' Radio Station WOW v. Johnson, 326 U.S. 120,
129, 65 S.Ct. 1475, 1480, 89 L.Ed. 2092.

29

The case of State Tax Comm'n v. Van Cott, 306 U.S. 511, 59 S.Ct. 605, 83
L.Ed. 950, is not this case. There the case was not clearly decided on an
adequate state ground, but the state ground and the federal ground were so
interwoven that this Court was 'unable to conclude that the judgment rests upon
an independent interpretation of the state law.' 306 U.S. at page 514, 59 S.Ct. at
page 606. In the instant case, a clear statement of the state law is made by the
court in the syllabus. Only Judge Taft has summoned the erroneous view of this
Court's decisions to his support of the adequate state ground approved by the

whole court.
30

What we are saying to Ohio is: 'You have decided this case on an adequate
state ground, denying service, which you had a right to do, but you don't have to
do it if you don't want to, as far as the decisions of this Court are concerned.' I
think what we are doing is giving gratuitously an advisory opinion to the Ohio
Supreme Court. I would dismiss the writ as improvidently granted.

See Perkins v. Perkins, 57 Phil.R. 205; Harden v. Benguet Consolidated Mining

Co., 58 Phil.R. 141; Perkins v. Guaranty Trust Co., 274 N.Y. 250, 8 N.E.2d
849; Perkins v. Beneguet Consolidated Mining Co., 55 Cal.App.2d 720, 132
P.2d 70, rehearing denied, 55 Cal.App.2d 774, 132 P.2d 102, certiorari denied,
319 U.S. 774, 63 S.Ct. 1435, 37 L.Ed. 1721; 60 Cal.App.2d 845, 141 P.2d 19,
certiorari denied, 320 U.S. 803, 815, 64 S.Ct. 429, 88 L.Ed. 485; Perkins v.
First National Bank of Cincinnati, Com.Pl., Hamilton County, Ohio, 79 N.E.2d
159.

Ohio requires a foreign corporation to secure a license to transact 'business' in

that State, Throckmorton's Ohio Code, 1940, 86254, and to appoint a
'designated agent' upon whom process may be served, 86252, 86255.
The mining company has neither secured such a license nor designated such an
agent. While this may make it subject to penalties and handicaps, this does not
prevent it from transacting business or being sued. 862525. If it has a
'managing agent' in Ohio, service may be made upon him. 11290. Such
service is a permissive alternative to service on the corporation through its
president or other chief officer. 11288. Lively v. Picton, 6 Cir., 218 F. 401,
406407. The evidence as to the business activities of the corporation in Ohio
is summarized by the Ohio Court of Appeals. 88 Ohio App. 118, 119125, 95
N.E.2d 5, 69. That court held that such activities did not constitute the
transaction of business referred to in the Code. In its syllabus, however, the
Supreme Court of Ohio, without passing upon the sufficiency of such acts for
the above statutory purpose, and without defining its use of the term, affirmed
the judgment dismissing the complaint and assumed that what the corporation
had done in Ohio constituted 'doing business' to an extent sufficient to be
recognized in reaching its decision.

In 1858 the Supreme Court of Ohio promulgated the following rule:

'A syllabus of the points decided by the Court in each case, shall be stated, in
writing, by the Judge assigned to deliver the opinion of

the Court, which shall be confined to the points of law, arising from the facts of
the case, that have been determined by the Court. And the syllabus shall be
submitted to the Judges concurring therein, for revisal, before publication
thereof; and it shall be inserted in the book of reports without alteration, unless
by the consent of the Judges concurring therein.' 5 Ohio St. vii.
This policy has been recognized by statute. Bates Ohio R.S. 427, as amended,
103 Ohio Laws 1913, 1483, and 108 Ohio Laws 1919, 1483. It appears now
in Throckmorton's Ohio Code, 1940, 1483, as follows: 'Whenever it has been
thus decided to report a case for publication the syllabus thereof shall be
prepared by the judge delivering the opinion, and approved by a majority of the
members of the court; and the report may be per curiam, or if an opinion be
reported, the same shall be written in as brief and concise form as may be
consistent with a clear presentation of the law of the case. * * * Only such cases
as are hereafter reported in accordance with the provisions of this section shall
be recognized by and receive the official sanction of any court within the state.'
There are many references to this practice, both in the syllabi and opinions
written for the Supreme Court of Ohio. Typical of these is the following:
'It has long been the rule of this court that the syllabus contains the law of the
case. It is the only part of the opinion requiring the approval of all the members
concurring in the judgment. Where the judge writing an opinion discusses
matters or gives expression to his views on questions not contained in the
syllabus, it is merely the personal opinion of that judge.' State ex rel. Donahey
v. Edmondson, 89 Ohio St. 93, 107108, 105 N.E. 269, 273, 52 L.R.A.,N.S.,
305.
See also, Williamson Heater Co. v. Radich, 128 Ohio St. 124, 190 N.E. 403;
Baltimore & O.R. Co. v. Baillie, 112 Ohio St. 567, 148 N.E. 233. A syllabus
must be read in the light of the facts in the case, even where brought out in the
accompanying opinion rather than in the syllabus itself. See Williamson Heater
Co. v. Radich, supra; Perkins v. Bright, 109 Ohio St. 14, 1920, 141 N.E. 689,
690691; In re Poage, 87 Ohio St. 72, 8283, 100 N.E. 125, 127128.
4

'However, the doing of business in a state by a foreign corporation, which has

not appointed a statutory agent upon whom service of process against the
corporation can be made in that state or otherwise consented to service of
summons upon it in actions brought in that state, will not make the corporation
subject to service of summons in an action in personam brought in the courts of
that state to enforce a cause of action in no way related to the business or
activities of the corporation in that state. Old Wayne Mutual Life Ass'n of
Indianapolis v. McDonough, 204 U.S. 8, 22, 23, 27 S.Ct. 236, 51 L.Ed. 345;

Simon v. Southern Ry. Co., 236 U.S. 115, 129, 130 and 132, 35 S.Ct. 255, 59
L.Ed. 492. See, also, Pennsylvania Fire Ins. Co. of Philadelphia v. Gold Issue
Mining & Milling Co., 243 U.S. 93, 95 and 96, 37 S.Ct. 344, 61 L.Ed. 610;
Robert Mitchell Furniture Co. v. Selden Breck Construction Co., 257 U.S. 213,
215 and 216, 42 S.Ct. 84, 66 L.Ed. 201; International Shoe Co. v. Washington,
326 U.S. 310, 319 and 320, 66 S.Ct. 154, 90 L.Ed. 95.
'An examination of the opinions of the Supreme Court of the United States in
the foregoing cases will clearly disclose that service of summons in such an
instance would be void as wanting in due process of law.' 155 Ohio St. 116, 119
120, 98 N.E.2d 33, 35.
5

'* * * The obligation which is here sued upon arose out of those very activities.
It is evident that these operations establish sufficient contacts or ties with the
state of the forum to make it reasonable and just according to our traditional
conception of fair play and substantial justice to permit the state to enforce the
obligations which appellant has incurred there. Hence we cannot say that the
maintenance of the present suit in the State of Washington involves an
unreasonable or undue procedure.' International Shoe Co. v. Washington, supra,
326 U.S. at page 320, 66 S.Ct. at page 160.

This citation does not disclose the significance of this decision but light is
thrown upon it by the opinions of the state court below. Reynolds v. Missouri,
K. & T.R. Co., 224 Mass. 379, 113 N.E. 413; 228 Mass. 584, 117 N.E. 913. In
addition to the cases cited in the text see Barrow S.S. Co. v. Kane, 170 U.S.
100, 18 S.Ct. 526, 42 L.Ed. 964; Pennsylvania Fire Insurance Co. v. Gold Issue
Mining Co., 243 U.S. 93, 37 S.Ct. 344, 61 L.Ed. 610 (statutory agent
appointed); Philadelphia & Reading R. Co. v. McKibbin, 243 U.S. 264, 268
269, 37 S.Ct. 280, 281, 282, 61 L.Ed. 710 (question left open).

For like procedure followed under somewhat comparable circumstances see

State Tax Comm'n v. Van Cott, 306 U.S. 511, 59 S.Ct. 605, 83 L.Ed. 950.