Sassower v Field Petition for Rehearing and Suggestion of Rehearing En Banc

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1.

I N D E X

SUBJECT INDEX: Page.

PETITION FOR REHEARING EN BANC 1

COUNSEL'S CERTIFICATE 3

BRIEF IN SUPPORT OF PETITION FOR REHEARING EN BANC 

ARGUMENT:

4

Proposition I: APPELLATE COURTS CANNOT MAKE 
FACTUAL DETERMINATIONS WHICH MAY BE 
DECISIVE OF VITAL RIGHTS WHERE THE CRUCIAL 
FACTS HAVE NOT BEEN DEVELOPED 6

Proposition II: THE COURT IS WITHOUT JURISDICTION 
OF THE PARTIES, THESE APPELLEES 12

Proposition HE: THE DOCTRINE OF EXCLUSION, WHEREBY 
A STATE IS AUTHORIZED TO IMPOSE CONDITIONS 
UPON THE RIGHT OF FOREIGN CORPORATIONS TO 
DO BUSINESS WITHIN THE STATE OR TO EXCLUDE 
THEM ALTOGETHER, IS A VALID SUBSISTING DOC­
TRINE OF THE SUPREME COURT AND THE OPINION 
OF THE PANELAND ORDER DIRECTED THEREBY 
IS IN CONFLICT THEREWITH 15

CONCLUSION 19

CERTIFICATE OF SERVICE 20

APPENDICES:

A: Opinion District Court, pertinent parts 
B: Opinion this Court, pertinent parts 
C: Section 5319, Mississippi Code 1942, Recom p., 
D: Section 5340, Mississippi Code 1942, Recomp. ,

TABLE OF CASES:

21
25
29
31

Asbury Hospital v. Cass County, N .Dak., 326 U.S. 207, 
90 L. ed. 6 17

Bates v. City of Little Rock, 361 U.S. 516, 
4 L. ed. 2d 480, 80 S.Ct. 412 6

Brown Shoe Co. v. U. S. , 370 U.S. 294, 8 L. ed. 510, 82S.Ct. 1502 12



11.

INDEX. (Cont'd): Page.

Connecticut Gen. Life Ins. Co. v. Johnson,
303 U.S. 77, 79, 80, 82 L .ed. 673, 676, 677, 58 S.Ct. 436 16

Hague v. Committee for Ind. Organizations,
307 U.S. 496, 83 L. ed. 1423, 59 S. Ct. 954 10

Hanover F. Ins. Co. v. Harding (Hanover F. Ins. Co. v. Carr),
272 U.S. 494, 507, 71 L .ed. 372, 379, 47 S.Ct. 179,
49 A. L .R . 179 16

Larson v. Domestic and Foreign Com. Corp. ,
337 U.S. 682, 93 L. ed. 1628 13, 14

Louisiana, ex rel, Jack Gremillion v. NAACP, et al,
366 U.S. 293, 6 L .e d .2d 301, 81S.Ct. 1333 6

Malone v. Bowdoin, 369 U.S. 642, 8 L. ed. 2d 168, 82 S.Ct. 980 13, 14
Mar bury v. Madison, 1 C ranch 137, 2 L .ed. 60 12
Miguel v. McCarl, 291U.S. 442, 78 L. ed. 902, 54 S.Ct. 465 11

NAACP v. Alabama, 357 U. S. 449,
2 L .e d .2d 1488, 78 S.Ct. 1163 6, 7, 17

New Orleans & N. E. R. Co. v. Harris,
247 U.S. 367, 63 L.Ed. 1167 8

Panama Canal Co. v. Grace Line, Inc.,
356 US 309, 2 L. ed. 2d 788, 78 S.Ct. 752 11

Price v. Johnson, 334 U.S. 266, 92 L .ed. 1356, 68 S.Ct. 1049 8

Terral v. Burke Construction Co. , 257 U.S. 529,
66 L.ed. 352, 42 S.Ct. 188, 21 A. L .R . 156 16

U. S. v. Greene County Bd. of E d., 332 Fed. Rep. 2d, 40 18
U. S. ex rel, v. Hitchcock, 190 U.S. 316,

47 L.ed. 1074, 23 S.Ct. 698 12

Work v. U. S. ex rel Rives, 267 U.S. 175, 69 L .ed. 651,
45 S.Ct. 252 12

OTHER AUTHORITIES:

31A C .J.S . , 164, et seq. , Evidence, §103, et seq. 8

Mississippi Code 1942, Recompiled,

Section 5319 [Appendix C, p. 29] 6
Section 5340 [Appendix D, p. 31] 10

22 U .S .C .A . , 2281, et seq. 6
28 U. S. C ., 1652 11



111.

INDEX (Continued):

OTHER AUTHORITIES (Continued): Page

United States Constitution,

Article I, Section 8, Clause 3 16

Eleventh Amendment 13, 14, 15

Fourteenth Amendment 7, 9, 17

Words and Phrases, Permanent Edition, 

Vol. 7, page 261 10

Vol. 32, page 351 10

[Emphasis herein in quoted matter is supplied].



1 .

PETITION FOE REHEARING EN BANC 
AND BRIEF IN SUPPORT THEREOF

Come now the officers of the State of Mississippi, Paul B. Johnson, 

Governor; Heber Ladner, Secretary of State; and Joe T. Patterson, At­

torney General; who are appellees in Count II of the above-entitled case, 

and respectfully petition this Court for a rehearing en banc on the matter 

of Count n of the original Complaint in this case, for the reasons herein­

after set forth.

1. On March 8, 1966, a division of this Court rendered an Opinion

written by Judge Samuel E. Whitaker, of the U. S. Court of Claims, sit­

ting by designation, finding: (1) That the Secretary of State notified the 

corporate appellant that it was required to domesticate (Slip Opinion, p. 

17); (2) That the legal reasons shown by the record to have been given

by the Attorney General and his assistant were not sufficient to warrant 

a denial of the application for domestication (Slip Opinion, pp. 18, 19 & 

20); and a gratia (3) the Governor, who gave no reason for the exercise 

of his executive discretion in withholding his approval entirely, must 

with the other officials approve the application. The panel of this Court 

then ordered the District Court to issue a mandatory injunction whereby 

these appellees are " . . .  required to approve the application for domes­

tication of the NAACP and to take all necessary and proper steps to en­

title it to do business in the State of Mississippi. " (Slip Opinion, pp. 22

& 24).

2. The ruling ignored the holding of the District Court, that it, the 

District Court, was without jurisdiction to enter such an order; and the 

panel of this Court ordered the entry of the mandatory injunction without 

giving the District Court the benefit of advising it wherein jurisdiction

to do so would lie.



2.

3. The ruling ordered these appellees to approve the application of 

the foreign corporation to do business within the State of Mississippi; 

which is contrary to and in direct conflict with the doctrine of exclusion 

whereby a State can impose such conditions as it chooses on the right of 

a foreign corporation to do business within the State or can exclude it 

from the State altogether; a principle of law recognized and followed by 

the Supreme Court since its organization down to and including the case 

relied upon by the panel as authority for its order.

4. Since the Opinion of the panel is based upon a decision that is fac­

tually not applicable here, and departs from applicable precedent by the 

Supreme Court, both as to jurisdiction and subject matter, a rehearing 

en banc is warranted under Rule 25(a) of the Rules of this Court and is 

necessary to secure and maintain uniformity and continuity of the deci­

sions of this Court with the decisions of the Supreme Court.

WHEREFORE, it is respectfully submitted that a rehearing en banc 

should be ordered in this case.

Respectfully submitted this the 25th day of March, 1966.

PAUL B. JOHNSON, GOVERNOR OF THE 
STATE OF MISSISSIPPI

HEBER LADNER, SECRETARY OF STATE OF THE 
STATE OF MISSISSIPPI

JOE T. PATTERSON, ATTORNEY GENERAL OF 
THE STATE OF MISSISSIPPI

APPELLEES—PETITIONERS.

B Y ------------------------------------------------------------------- —
MARTIN R. McLENDON, Assistant Attorney 
General, Attorney for Appellees--Petitioners 
P. O. Box 220 
Jackson, Mississippi



3.

CERTIFICATE OF COUNSEL

I, MARTIN R. McLENDON, Counsel of record in this case for 

the appellees--petitioners seeking a rehearing, do hereby certify that 

the foregoing petition for rehearing en banc is presented in good faith 

and not for delay.

MARTIN R. McLENDON 
P. O. Box 220 
Jackson, Mississippi



4.

BRIEF IN SUPPORT OF PETITION 
FOR REHEARING EN BANC

No petition for rehearing has been filed asking for a re-examination 

of the judgment of the Court with regard to Count I of the original com ­

plaint. Since there was no proof whatsoever connecting the facts upon 

which Count I was brought with these appellees to Count II, the matter 

presented herewith is limited solely to the right of an appellate Federal 

Court to order a state to approve an application of a foreign non-profit 

corporation to become a domesticated corporation of that state when 

there is no showing whatsoever of any need for such approval to protect 

the membership of that corporation of their right to associate and be af­

filiated with the corporation.

Questions presented:

I. What, if anything, is shown by the record to have been done by 

these appellees to the corporate appellant to deny it of due process or to 

the individual appellants denying them privileges and immunities guaran­

teed to them by the Constitution?

II. Wherein does jurisdiction of the District Court lie to order a 

state to approve an application for domestication of a foreign non-profit 

corporation?

III. Has the doctrine of exclusion, whereby a state is authorized to 

impose conditions upon the right of foreign corporations to do business 

within the state or to exclude them altogether, been abolished by the Su­

preme Court and, if not, is the opinion of the panel and the order direct­

ed thereby in conflict with that doctrine?



5.

INTRODUCTION TO ARGUMENT

These appellees will first show that there is no factual basis whatso­

ever for the entry of an order against the State of Mississippi as contem­

plated by the Opinion of the panel of this Court, and that the Opinion of 

the Supreme Court relied upon by the panel is wholly foreign to the is ­

sues presented by this case.

We will next show that the District Court is without jurisdiction to 

enter the order as directed and suggest that if the Opinion of the panel is 

not re-examined and reversed, that it at least should be re-examined 

and the District Court given the benefit of being advised wherein juris­

diction to enter the order directed to be entered would lie.

Finally, these appellees will show that the doctrine of exclusion is 

a valid and subsisting doctrine of the Supreme Court and the entry of the 

order as directed by the panel of this Court is in conflict with that doc­

trine.

For the convenience of the Court, the parts of the Opinion of the 

District Court dealing with Count II have been reproduced and same is 

attached hereto as Appendix A, and the parts of the Slip Opinion of the 

panel of this Court dealing with Count n have been reproduced and same 

is attached hereto as Appendix B. All of the evidence adduced in suppor 

of Count II of the Complaint, and some of the argument of counsel, is 

found on pages 312-370 of the record. Appellees offered only their Ex­

hibit D -1.



ARGUMENT

Proposition I

APPELLATE COURTS CANNOT MAKE FACTUAL 
DETERMINATIONS WHICH MAY BE DECISIVE OF 
VITAL RIGHTS WHERE THE CRUCIAL FACTS 
HAVE NOT BEEN DEVELOPED.

The Panel Opinion states:

"Prior to 1963 it (corporate appellant) carried on 
these activities in the State of Mississippi through 
unincorporated affiliates, although it maintained its 
own offices in the state; while in 1962 it received 
notice from the Secretary of State that the M issis­
sippi Code had been amended, effective January 1, 
1963, to require foreign non-profit corporations to 
domesticate in order to do business in the State. "

That finding by the Panel cannot be based upon any fact developed 

in the record for the reason that the record fails wholly to reflect that 

any such notice was given to the corporate appellant, or anyone for that 

corporation, by the appellee Secretary of State. Indeed, the complaint 

does not even allege that such notice was given.

Sec. 5319, Miss. Code of 1942. Recp. , as amended in 1962, ef­

fective January 1, 1963, was a part of the enactment of the "Mississippi 

Business Corporation Act. " A copy of the statute currently in force is 

attached hereto as Appendix C. This Court cannot enjoin the enforce­

ment of that statute, 28 USCA 2281. et seq. , and the State has not sought 

to enforce its provisions against the corporate appellant. The appellee 

Attorney General has not attempted to enjoin the activities of corporate 

appellant or any of its members.'1' The record is clear that the activities

1 - N. A A .C .P . v. Alabama. 357 U.S. 449, 2 L. Ed. 2d 1488, 78 S.Ct. 
1163; Bates v. City of T ittle  Rock. 361 U.S. 516, 4 L. Ed. 2d 480, 80
S.Ct. 412; Louisiana, ex rel. Jack Gremillion v. N. A. A .C .P . . et 
al, 366 U.S. 293, 6 L. Ed. 2d 301, 81 S.Ct. 1333.



7.

of the corporate appellant and its members go on unabated.

It is emphasized at this point that no showing whatsoever is made in 

this record of any attempt on the part of any of these appellees to deprive 

any of the individual members of corporate appellant of their right to 

free speech, assembly, protest and peaceful picketing or indeed to de­

prive them of their right to membership in the corporate appellant. The 

rights of individual citizens of the United States to enjoy privileges and 

immunities guaranteed to them by the Fourteenth Amendment are not in­

volved in this petition for rehearing. No such deprivation of constitu­

tional rights or attempt at such deprivation is shown by the record to 

exist insofar as these appellees and Count II of the original complaint 

are concerned. The language of the Attorney General quoted in the Slip 

Opinion of differences between the corporate appellant and its approach 

to problems and his own is not entitled to be compared with the allega­

tions for injunction as was done by the Panel Opinion to substantiate its
2application of NAACP v. Alabama to the case at bar.

NAACP v. Alabama. 377 U.S. 288, does not support the conclusion 

reached by the panel for the reasons that: (1) jurisdiction of the Court 

to enter the order that it did was waived by Alabama having brought the 

suit; (2) granting the right to foreign corporations to do business in 

Alabama is, by virtue of Alabama statutes, a ministerial function on the 

part of the Secretary of State; and (3) the order directed to be entered 

in that case was the result of the case having been brought before the

2 - N .A .A .C .P . v. Alabama. 377 U.S. 288, 12 L .e d .2d 325, 84 S.Ct.



Supreme Court four different times and could be considered in the nature 

of the Court's version of justice to a vanquished foe in order to finally 

dispose of the matter.

The testimony that foreign non-profit corporations have been treat­

ed alike in all respects by the office of the Attorney General is not dis­

puted by any evidence offered on behalf of the corporate appellant. In 

fact, the total dirth of evidence on behalf of the corporate appellant real­

ly presents a question of law for determination because the facts devel­

oped show only that the application for domestication was filed and that it 

was subsequently denied.

Appellate courts cannot make a factual determination which may be
3

decisive of vital rights where the crucial facts have not been developed.

The burden of proof was on the corporate appellant to show that it, 

as a corporate entity as distinguished from its members, was entitled to 

the relief sought in this case both as a matter of fact and as a matter of 

law.^

There is a total absence of proof that the denial of the application of 

the foreign non-profit corporation to become domesticated in Mississippi 

effects or affects the constitutional rights of any individual member 

thereof or of any citizen of the United States. As heretofore observed, * 4

3~ Price v, Johnson. 334 U.S. 266, 92 L.Ed. 1356, 68 S.Ct. 1049.

4- The United States Supreme Court held in New Orleans & Northeastern 
E. Co. v. Harris. 247 U.S. 367, 63 L. Ed. 1167: "The burden of 
proof is on the plaintiff in making out its cause of action, and this 
burden of proof must be satisfied in order to sustain the decision or 
finding in favor of the party on whom the burden rests. " 31A C. J. S. 
164, et s e q ., Evidence, §103, et seq.



the only issue presently pending is the right of a foreign non-profit co r ­

poration through the good offices of this Court to force itself upon the 

State of Mississippi.

The question then is not whether any constitutional right of any in­

dividual citizen has been violated but whether the corporate appellant is 

vested with a constitutional or statutory right to do business in the State 

of Mississippi and the propriety of the issuance of the permanent manda­

tory injunction to accomplish that result.

The Fourteenth Amendment to the Constitution of the United States 

has never been construed to vest "privileges and immunities" in corpor­

ations. "Privileges and immunities" protected by that constitutional 

amendment are limited to " . . .  citizens of the United States, . . . "  The 

very nature of the "privileges and immunities" granted by the amend­

ment are such that an artificial legal entity, i. e. , a corporation, is in­

capable of exercising or enjoying them. The "privileges and immuni­

ties" of citizenship can only be enjoyed by citizens. Corporations are 

not and cannot be made citizens capable of exercising "privileges and 

immunities" of citizenship.

That a corporation is not a citizen entitled to privileges and immun­

ities has been consistently upheld by the United States Supreme Court.

"-A corporation is not a citizen, within the meaning 
of the constitutional provision, and hence has not 
the privileges and immunities secured to citizens 
against state legislation. Orient Ins. Co. v. Dagqs.
19 S.Ct. 281, 282, 172 U.S. 557, 43 L .ed. 552, cit­
ing P au lj£^ _S taJ^ O ii3M  75 U.S. (8 Wall.) 168,
19 L. ed. 357."

(Citing numerous ca se s .)



10.

"A corporation is not a 'citizen', within U.S. C. A.
Const. Amend. 14, as to the abridgment of privi­
leges and immunities of citizens, . . . ". 5

(Citing numerous ca se s .)

It is elementary that a corporation cannot assert for others rights
g

which it itself does not have or enjoy.

It is equally well established that corporations are persons within 

the Federal and State Constitutions guaranteeing to all persons due pro­

cess of law,''7 as it is that corporations are not citizens possessing "priv­

ileges and immunities" as such.

The record clearly reflects in this case that the corporate appellant 

has been treated equally and in the same manner as all other foreign non­

profit corporations similarly situated and that equal protection of the law 

is therefore satisfied.

The approval or disapproval of applications for domestication of 

foreign non-profit corporations is vested by State statute in the Governoi. 

A copy of the statute, §5340, Miss. Code of 1942, R ecp ., is attached 

hereto as Appendix D. The Court will note that the statute authorizes 

the Governor, in the exercise of his executive discretion, to withhold 

his approval entirely when acting upon corporate charter applications. 

This is exactly what has been done in the instant case, and the exercise 

of that executive discretion should not be the subject of the issuance of

Words and Phrases. Permanent Edition, Volume 7, page 261.

°~ Hague v. Committee for Industrial Organizations, 307 U.S. 496,
83 L .ed. 1423, 59 S.Ct. 954.

Words and Phrases. Permanent Edition. Volume 32, page 351.



11.

a permanent mandatory injunction as directed by the Panel Opinion.

The issuance of a permanent mandatory injunction to affirmatively 

require a public official to perform an act is, in effect, equivalent to a
O

writ of mandamus, and is governed by like considerations.

§5340, supra, clearly and beyond question vests discretion in the

Governor of the State of Mississippi as to whether or not he will grant an

application for domestication of a foreign corporation when it provides

for the granting of such an application and then provides " . . .  or if

deemed expedient by him he may withhold his approval entirely. "

"The remedy of mandamus is, in the main, restricted 
to situations where ministerial duties of a non-discre- 
tionary nature are involved, as where the matter is 
per adventure clear, or an administrative agency is 
clearly derelict in failing to act, or the action or in­
action turns on a mistake of law. "9

As heretofore shown, the act performed by the former Governor of 

Mississippi in rejecting the application of corporate appellant was clear­

ly the exercise by him of discretion vested in him by the statutes and

laws of the State, which said laws shall be regarded as rules of decision 
10by this Court.

Where an officer is given discretion, mandamus and permanent man­

datory injunction being comparable and governed by like consideration, 

neither will issue to control a public officer in discharging an official

8~ Miguel v. McCarl. 291 U.S. 442, 78 L .ed . 902, 54 S.Ct. 465.

Panama Canal Co. v. Grace Line. Inc. , 356 US 309, 2 L. ed. 2d 788, 
78 S.Ct. 752.

10- 28 U .S.C . 1652.



12.

duty which requires the exercise by him of judgment and discretion .^

Proposition II

THE COURT IS WITHOUT JURISDICTION 
OF THE PARTIES. THESE APPELLEES

District Courts are courts of limited jurisdiction. Jurisdiction of

the Court is fundamental and ". . . a  review of the sources of the

Court's jurisdiction is a threshold inquiry appropriate to the disposition
12

of every case that comes before u s ."

These appellees, the Governor, the Attorney General and the Sec­

retary of State of the State of Mississippi, in withholding the approval 

of the application for domestication of the appellant corporation, acted 

in accordance with authority vested in them as such state officials and 

their action therefor was state action. Section 5340, supra, authorizes 

the Governor to take the advice of the Attorney General and to approve, 

require amendments prior to approval, " . . .  or if deemed expedient 

by him he may withhold his approval entirely. "

The record shows without dispute that the application for domestica­

tion has, in fact, been denied and the approval of the state withheld en­

tirely.

There cannot then be any doubt that the Panel of the Court by order­

ing the issuance of the permanent mandatory injunction is ordering the

Work v. United States ex rel. R ives. 267 U.S. 175, 69 L.Ed. 651,
45S .C t. 252; United States ex rel. Riverside Oil Co. v. Hitchcock.
190 U.S. 316, 47 L.Ed. 1074, 23 S.Ct. 698; Marburv v. Madison.
1 Cranch 137, 2 L.Ed. 60.

Brown Shoe Company v. United States. 370 U.S. 294, 8 L.Ed. 510,
82 S.Ct. 1502.



District Court to exercise jurisdiction over one of the United States in 

a suit by citizens and persons of another state.

Jurisdiction of the Court to grant such relief was removed by the

Eleventh Amendment, which provides:

"The Judicial power of the United States shall not be 
construed to extend to any suit in law or equity, com­
menced or prosecuted against one of the United States 
by Citizens of another State, or by Citizens or sub­
jects of any Foreign State. "

This amendment and the principle of sovereign immunity have been

the subject of considerable litigation in the Courts of the United States.
13In Malone v. Bowdoin the Court said:

"While it is possible to differentiate many of these 
cases upon their individualized facts, it is fair to 
say that to reconcile completely all the decisions 
of the Court in this field prior to 1949 would be a 
Procrustean task.

"The Court's 1949 Larson decision makes it unneces­
sary, however, to undertake that task h ere ."

14In Larson v. Domestic and Foreign Commerce Corporation. the

Court announced the rules applicable to this case:

"The question becomes difficult and the area of con­
troversy is entered when the suit is not one for dam­
ages but for specific relief: i . e . , the recovery of 
specific property or monies, ejectment from land, 
or injunction either directing or restraining the de­
fendant o fficer 's  action. In each such case the ques­
tion is directly posed as to whether, by obtaining 
relief against the officer, relief will not, in effect, 
be obtained against the sovereign. For the sovereign 
can act only through agents and, when an agent's ac­
tions are restrained, the sovereign itself may, through 
him, be restrained. As indicated, this question does 
not arise because of any distinction between law and 
equity. It arises whenever suit is brought against an

Malone v. Bowdoin. 369 U.S. 642, 8 L. ed. 2d 168, 82 S.Ct. 980.

Larson v. Domestic and Foreign Com. Corp. , 337 U.S, 682, 93 L. ed. 16

13

28



officer of the sovereign in which the relief sought from 
him is not compensation for an alleged wrong but, rath­
er, the prevention or discontinuance, in rem, of the 
wrong. In each such case the compulsion, which the 
court is asked to impose, may be compulsion against 
the sovereign, although nominally directed against 
the individual officer. If it is. then the suit is barred. 
not because it is a suit against an officer of the Govern­
ment. but because it is. in substance, a suit against 
the Government over which the court, in the absence of 
consent, has no .jurisdiction.

* * *

"In a suit against ah agency of the sovereign, as in 
any other suit, it is therefore necessary that the plain­
tiff claim an invasion of his recognized legal rights.
If he does not do so, the suit must fail even if he al­
leges that the agent acted beyond statutory authority 
or unconstitutionally. Eut, in a suit against an agency 
of the sovereign, it is not sufficient that he make such 
a claim. Since the sovereign may not be sued, it 
must also appear that the action to be restrained or 
directed is not action of the sovereign. The mere al­
legation that the officer, acting officially, wrongfully 
holds property to which the plaintiff has title does not 
meet that requirement. True, it establishes a wrong 
to the plaintiff. But it does not establish that the o ffi­
cer, in committing that wrong, is not exercising the 
powers delegated to him by the sovereign. If he is 
exercising such powers the action is the sovereign's 
and a suit to enjoin it may not be brought unless the 
sovereign has consented."

Even though the Court, in both Malone, supra, and Larson, supra, 

was dealing with sovereign immunity as it applies to agencies of the 

Federal Government, the principles announced are equally applicable 

to an action against state officers because such action not only involves 

sovereign immunity but this Court is prohibited by the Eleventh Amend­

ment, supra, from exercising jurisdiction in such cases.

Since the relief ordered is a permanent mandatory injunction direct- 

ex against the State, it is clear that the rules quoted above and relied



upon by the District Court are opposed to granting of the relief sought.

The action of these appellees in this matter were acts of the State 

of Mississippi. These appellees were only acting for the State in dealing 

with the corporate appellant. If the Court approves the order of the 

Panel, the District Court will be forced to act against the State. The 

State will be the party compelled to act as effectively as though it were 

a party in name as well as in fact.

The compulsion, which the Panel of the Court ordered, if imposed, 

will be compulsion against the sovereign, although nominally directed 

against the individual officers. It cannot be considered otherwise be­

cause the present Governor, against whom the compulsion is directed, 

has not even considered the matter.

The compulsion sought is clearly against the sovereign, which has 

not consented to being so compelled, and is therefore barred by the 

Eleventh Amendment, supra.

Proposition III

THE DOCTRINE OF EXCLUSION, WHEREBY A STATE 
IS AUTHORIZED TO IMPOSE CONDITIONS UPON THE 
RIGHT OF FOREIGN CORPORATIONS TO DO BUSINESS 
WITHIN THE STATE OR TO EXCLUDE THEM ALTO­
GETHER, IS A VALID SUBSISTING DOCTRINE OF THE 
SUPREME COURT AND THE OPINION OF THE PANEL 
AND ORDER DIRECTED THEREBY IS IN CONFLICT 
THEREWITH.____________________________________________

One of the fundamental legal differences between a natural-born 

citizen and a corporation in this country is that a natural-born citizen 

can move freely from state to state, whereas a corporation, being a 

creature of the state of its creation, moves from that state to all other 

states by the grace and permission of the state into which it seeks to 

move. The two exceptions to that distinction are: (1) that corporations 

engaged in interstate commerce may not be restricted to the state of



16.

their creation; ^  and (2) the right of exclusion may not be exercised 

so as to deprive the corporation of any constitutional right which it, the 

corporation, may have as distinguished from the constitutional rights 

of the shareholders or members of the corporation . ^

Corporate appellant produced no evidence to show that it came with­

in either of the exceptions noted above. The corporate appellant pro­

duced no evidence to show that the denial of its application for domesti­

cation in Mississippi had any effect whatsoever upon the constitutional 

rights of any of the individual members thereof.

Instead, the corporate appellant demanded that the District Courts 

assume jurisdiction and order the State of Mississippi, through its 

proper officials, to approve the application as though and as if the co r ­

poration had a right in and of itself to engage in intrastate business with- 

in the State of Mississippi and have and receive corporate franchise tax 

exemptions and other benefits bestowed upon domestic corporations by 

the State.

In its opinion, the District Court recognized the long-settled prin­

ciples that a state is not required to admit foreign corporations to carry 

on intrastate business within its borders, and that the State may arbi­

trarily exclude them or may license them upon any terms that it sees

fit, apart from exacting a surrender of a recognized right of the corpor-
17ation derived from the Constitution of the United States.

Art. I, Sec. 8, Cl. 3, U. S. Constitution.

16- Terral v. Burke Construction Co. . 257 U.S. 529, 66 L. Ed. 352, 
42 S.Ct. 188, 21 A .L .R . 156.

^ ~  Hanover F. Ins. Co. v. Harding (Hanover F. Ins. Co. v. C arr). 
272 U.S. 494, 507, 71 L.Ed. 372, 379, 47 S.Ct. 179, 49 A .L .E . 
179: Connecticut Gen. Life Ins. Co. v. Johnson. 303 U.S. 77, 79, 
80, 82 L. Ed. 673, 676, 677, 58 S. Ct. 436.



17.

The right of exclusion was not changed by the adoption of the 

Fourteenth Amendment:

"The Fourteenth Amendment does not deny to the 
state power to exclude a foreign corporation from 
doing business or acquiring or holding property 
within it. Horn Silver Min. Co. v. New York, 143 
US 305, 312-315, 36 L. ed. 164, 167, 168, 12 S.Ct.
403, 4 Inters. Com. Hep. 57; Hooper v. California,
155 US 648, 652, 39 L. ed. 297, 298, 15 S.Ct. 207,
5 Inters. Com. Rep. 610; Munday v. Wisconsin 
Trust C o ., 252 US 499, 64 L. ed. 684, 40 S. Ct. 365;
Crescent Cotton Oil Co. v. Mississippi, 257 US 
129, 137, 66 L. ed. 166, 171, 42 S.Ct. 42."

Indeed, the doctrine of exclusion was recognized in the case relied 

upon by the Panel of this Court as its sole authority for directing that 

the order of approval of the application for domestication be entered. ^  

The issue in that case was the right of a state to enjoin the association 

of the members of the corporate appellant with the corporation. The 

issue in this case is the right of that corporation to force itself upon 

the state when no attempt has been made to interfere with its activities 

or the rights of its members.

As heretofore shown, in distinguishing that case from the case at 

bar (pages 7-8 hereof), the relief ordered to be granted in that case 

was a result of militant aggressiveness on the part of the State of Ala­

bama. In the case at bar, the only militancy shown is the testimony of 

the State Attorney General that he does not agree with the corporate 

appellant's approach to problems and for that reason does not believe 

that the State should place its stamp of approval on the corporation. No 

militancy whatsoever has been shown toward the individual members of 

the corporate appellant by any of these appellees. Notwithstanding the

Asbury Hospital v. Cass County, North Dakota. 326 U.S. 207, 90 
L. Ed. 6.

19- N .A .A .C .P . v. Alabama. 377 U.S. 288, 12 L. ed. 2d 325, 84 S.Ct. 
1302.



total lack of any factual showing of entitlement to the relief sought, and 

ordered by the Panel of this Court, we submit that the Panel miscon­

strued the applicable law as announced by the Supreme Court and its o r ­

der to the District Court is contrary to the rule announced by this Court 

in such cases.
20In United States v. Greene County Board of Education. this Court 

summarized the rule for appellate review of a District Court's denial of 

a permanent mandatory injunction in the following language:

"The rule applicable to injunctions was announced 
early in the history of this country by Justice Bald­
win, sitting at Circuit in 1830 in Bonaparte v. Cam­
den (C.C.N . J. 1840) Fed. Cases No. 1617: 'There 
is no power the exercise of which is more delicate, 
which requires greater caution, deliberation, and 
sound discretion, or more dangerous in a doubtful 
case, than the issuing an injunction; * * *. ' The 
rule applicable in the Fifth Circuit was succinctly 
stated by Judge Hutcheson in Reliable Transfer 
Company v. Blanchard, (5th Cir. 1944) 144 F.2d 551.

"'In thus arguing, appellant proceeds upon the wholly 
incorrect assumption that, conceding power, the is ­
suance of the injunctions was mandatory. It is horn 
book law that "'"Courts of equity exercise discretion­
ary power in the granting or withholding of their ex­
traordinary remedies, and that although this d iscre­
tionary power is not restricted to any particular 
remedy, it is particularly applicable to injunction 
since that is the strong arm of equity and calls for 
great caution and deliberation on the part of the 
cou rt.'" "  [Citing cases] Here again it is horn book 
law that whether an injunction will or will not issue 
rests within the sound discretion of the court, and 
that the exercise of this discretion will not be dis­
turbed unless there has been a clear abuse of it,
45 Am. Jur., Sec. 180, p. 936."
*  *  *

"Discretion of the Trial Court must clearly be abused 
before appellate courts will reverse for failure to 
grant a mandatory injunction. United States v. W. T.
Grant C o.. 345 U.S. 629. 73 S.Ct. 894. 97 L.Ed.
1303 (1952): 'The chancellor's decision is based on 
all the circumstances: his discretion is necessarily

20- U. S. v. Greene County Bd. of Ed. , 332 Fed. Rep. 2d, 40.



19.

broad and a strong showing of abuse must be made to 
reverse it.

CONCLUSION

It is, therefore, respectfully submitted that this Court should grant 

to these appellees a rehearing en banc, and direct that the issues here­

in be re-argued orally before the Court sitting en banc, and that the 

Opinion of the Panel of this Court be re-examined by the full Court for 

the purpose of determining whether the Panel Opinion is in conformity 

with decisions of the Supreme Court.

It is further submitted that on a re-examination of that Opinion, 

that the Court determine that jurisdiction of the District Court to enter 

the order directed to be entered by the Panel as against these appellees 

does not exist; and, in the event the full Court determines that juris­

diction to enter the order does exist, that it will render its Opinion ad­

vising the District Court wherein such jurisdiction does lie.

It is further submitted that the full Panel of this Court should re ­

examine the Panel Opinion to determine whether or not it is in harmony 

with the long-established doctrine of exclusion laid down and consist­

ently followed by the Supreme Court insofar as states and corporate 

entities are concerned; and, in the event the full Court should deter­

mine that the opinion of the Panel is not in harmony with the doctrine 

of exclusion, that the full Court render its Opinion vacating the order

of the Panel.



20.

Respectfully submitted, this the 25th day of March, 1966.

PAUL B. JOHNSON, GOVERNOR OF THE STATE 
OF MISSISSIPPI

HEBER LADNER, SECRETARY OF STATE OF 
THE STATE OF MISSISSIPPI

JOE T. PATTERSON, ATTORNEY GENERAL OF 
THE STATE OF MISSISSIPPI

APPELLEES—PETITIONERS

MARTIN R. McLENDON, Assistant 
Attorney General, Attorney for 
Appellees--Petitioners 
P. O. Box 220 
Jackson, Mississippi

CERTIFICATE OF SERVICE

I, MARTIN R. McLENDON, attorney of record for these appellees— 

Petitioners, do hereby certify that I have this day served a true and 

correct copy of the above and foregoing Petition for Rehearing en banc 

and Brief thereon upon the attorneys of record for the appellants by 

mailing copies to them, United States postage prepaid, at the ad­

dresses shown in appellants' brief.

This the 25th day of March, 1966.

MARTIN R. McLENDON.



APPEN DIX A . (T itle  O m itted).

OPINION

The corporate plaintiff. . . The complaint is in 
two counts. . .

Count 2 of the complaint is basically a claim against 
the Governor, State Attorney General and Secretary of 
State to compel those authorities to approve the applica­
tion of the corporate plaintiff, as a non-stock, non-profit 
corporation chartered under the laws of New York, to 
qualify to engage in business in Mississippi. Those 
state officials are vested by the state with the adminis­
tration of the laws of the State of Mississippi governing 
domestic and foreign corporations qualified to do busi­
ness within the state. Those officials rejected such ap­
plication of said foreign corporation to do business in 
this state, although it has admittedly done business in 
Mississippi for many years. . .

As to the second count, the defendants contend that 
the charter of the corporate plaintiff does not comply 
with important requirements of the laws of Mississippi 
regulating the incorporation of non-stock, non-profit 
corporations; that they have not discriminated against 
this corporation in denying it authority to do business 
in Mississippi, but that they have denied such authority 
in like manner to other foreign corporations from dif­
ferent states. The defendants further say that this 
claim in this count is effectually a suit against the State 
of Mississippi against its wishes in violation of the 
Eleventh Amendment to the Constitution of the United 
States. . .

This case has not been heard by the Court on its 
merits, and after hearing all of the testimony adduced 
by the parties and receiving and considering all of the 
evidence of both parties, the Court was furnished with 
able briefs by counsel for the parties, and after hearing 
oral arguments of counsel, the Court examined all of 
their authorities and presently makes its finding of 
facts and conclusions of law thereon. . .

FINDING OF FACTS. . .

The burden of proof is on the plaintiffs to show by 
a preponderance of the evidence the necessity for an 
injunction and their right to such extraordinary process 
in this case. . .



22.
APPENDIX A (Cont'd):

The corporate plaintiff has not shown by a prepon­
derance of the evidence that its application to do business 
in Mississippi was arbitrarily and capriciously denied.
The Governor of the State refused to sign the permit au­
thorizing this New York corporation to engage in business 
in Mississippi because the Attorney General of M issis­
sippi advised him that the corporation did not meet the 
statutory requirements therefor; and that it was not in 
the best interest of the State of Mississippi to authorize 
such corporation to engage in its intrastate business 
within Mississippi. No fact or circumstance is shown 
by the evidence to support any claim of this foreign co r ­
poration to a vested right to do business within M issis­
sippi, and it is not shown factually that any constitutional 
right of this New York corporation is violated by such re­
fusal. The suit is in this respect essentially a suit against 
the State of Mississippi, which though not a party to the 
suit in name is a party in effect, against its wishes and 
in violation of the Eleventh Amendment of the Constitution 
of the United States.

CONCLUSIONS OF LAW

The NAACP, a New York corporation, seeks to sue 
in the first count of the complaint for the use of its mem­
bers. The defendants resist that procedure on the ground 
that constitutional rights may be asserted only by the per­
son entitled thereto and not by one for another. The 
NAACP relies for its authority upon NAACP v. Alabama. 
357 US 449. That was a proceeding by a state to compel 
the NAACP to disclose its membership list. The corpor­
ation advanced the interest of its members in secrecy of 
association as a defense and was sustained by the Court 
in that position. That decision is a far cry from the right 
of the corporation to file a suit, as here asserted, to have 
adjudicated certain affirmative constitutional rights of its 
members. That simply may not be done. Hague. Mayor, 
et al v. CIO. 307 US 496. That is the unmistakable man­
date of Civil Rule 17(a) and is controlling on the point here.

The right of free speech, assembly, worship, protest, 
peaceful picketing, and any other right conferred by the 
Federal Constitution is not in issue, and is not disputed, 
or questioned here. . .

Nobody questions plaintiffs' undoubted rights to free 
speech, assembly, protest and peaceful picketing. . .



23.
APPENDIX A (Cont'd):

Finally, as to the status of the corporate plaintiff as 
a New York corporation seeking to domesticate in M issis­
sippi, no contract right is involved, or impinged upon in 
this case. No employment by the Federal government is 
present. A state may not only regulate the entry of a for­
eign corporation into intrastate commerce, but it may ex­
clude it all together. A state may in the exercise of its 
police power exclude any foreign corporation and deny it 
the right to do intrastate business for any reason deemed 
to be necessary and proper, short of arbitrary action. 
Mississippi would not grant a certificate of incorporation 
to a non-stock, non-profit corporation with a set up iden­
tical to that of the NAACP here. Pursuant to an opinion 
of the Attorney General, the Governor declined to admit 
the NAACP to do business in Mississippi. That refusal 
on this record is not shown by a preponderance of the evi­
dence to be arbitrary.

The function of the Governor in domesticating a fo r ­
eign corporation is not a ministerial or perfunctory act.
It is a question committed to the exercise of a sound and 
reasonable discretion. Neither an injunction, nor a man­
damus may be used to control or direct the exercise of 
such discretion in a particular way. Both writs are ex­
traordinary processes, and are to issue only under the 
most impelling circumstances to prevent irreparable in­
jury. The writ will not issue as a matter of right but is 
committed to the sound discretion of the Court. Moor v. 
Texas & N .Q .R .R . . 297 US 101, 56S.Ct. 372. The co r ­
poration has not shown by a preponderance of the evidence 
that it is entitled to an injunction. It cannot be said with 
any degree of assurance that the refusal to domesticate it 
is arbitrary. The Attorney General furnished the Govern­
or with his legal opinion to the effect that the NAACP did 
not have the requisite membership in Mississippi, and 
that their domestication was not in the public interest.
He could have referred to instances such as its incitement 
to the disorders before the Court in this case, or the like, 
but plaintiffs say he objected to their Civil Rights suits. 
Surely, the corporation had the right to aid and encourage 
and assist negroes in the realization and enjoyment of 
their full constitutional rights, short of violating local 
laws in doing so. In any event, it has not been shown to 
the reasonable satisfaction of the Court that the NAACP 
was unlawfully denied the right to domesticate in M issis­
sippi. It is the opinion of the Court on this record that 
the state had the right to reject its application to domes­
ticate within the state under the circumstances here.



24.
APPENDIX A (Cont'd):

Ashbury Hospital v. Cass County. 326 US 207, 66 S.Ct. 
61; State of Washington v, Superior Court. 289 US 361, 
53S.Ct. 624; Atlantic Refining Co. v. Virginia. 302 US 
22, 58 S.Ct. 75; Bank of Augusta v. Earle. 13 Peters 
519, 10 L. Ed. 274; Lafayette v. French. 18 Howard 404, 
15 L.Ed. 451. This suit by this corporate plaintiff for 
this purpose cannot be maintained for another reason. 
This suit is in effect a suit against the State of M issis­
sippi itself. The state is here through its officials ob­
jecting to being sued in violation of the Eleventh Amend­
ment to the Constitution of the United States. That ob­
jection must be and is sustained. Larson v. Domestic 
& Foreign Coro. . 337 US 682.

Accordingly, the entire complaint in this case is 
without merit and should be dismissed at plaintiffs' cost 
to be taxed according to the rules of the Court. A judg­
ment accordingly may be presented.

________/ s /  Harold Cox_____________
UNITED STATES DISTRICT JUDGE

June 1, 1964



[Title Omitted]. 
(March 8, 1966.)

.APPENDIX B .

Eefore WHITAKER, Senior Judge,* WISDOM and THORNBERRY, 
Circuit Judges.

WHITAKER, Senior Judge: This is an action brought in
two counts by the corporate plaintiff, a New York corporation.
. . . In the second count, they seek a mandatory injunction 
against the Governor, the Attorney General, and the Secre­
tary of State of Mississippi to require them to permit the co r ­
porate plaintiff to domesticate in order to do business in the 
State of Mississippi. . .

In the second count plaintiffs allege that the corporate 
plaintiff has taken all steps, which are enumerated, requisite 
for domestication in the State of Mississippi, but that its ap­
plication has not been granted because plaintiff's chief ob­
jective is to eliminate all forms of racial discrimination in 
Mississippi and elsewhere in the United States, and to assist 
its members and others of the Negro race to protest against 
such discrimination in various and sundry ways. Wherefore 
it prays that a mandatory injunction issue against the Govern­
or, the Attorney General, and the Secretary of State to re ­
quire them to license plaintiff corporation to do business 
within the State, and for other relief. . .

In the second count of their petition, plaintiffs complain 
of the refusal of the Governor to permit the corporate plain­
tiff, a New York corporation, to domesticate. It is a non­
profit, non-share corporation, organized to promote the 
end of racial discrimination in the various States of the 
Union. It has been actively engaged in this effort for many 
years and in many areas of the United States, utilizing boy­
cotts, picketing, mass demonstrations, and other means.
Prior to 1963 it carried on these activities in the State of 
Mississippi through unincorporated affiliates, although it 
maintained its own office in the State; but in 1962 it received 
notice from the Secretary of State that the Mississippi Code 
had been amended, effective January 1, 1963, to require 
foreign non-profit corporations to domesticate in order to 
do business in the State. In an effort to comply therewith, 
it filed a copy of its charter of incorporation and of a reso­
lution designating an agent for the service of process, both 
duly authenticated, paid the required filing fees, and applied

Of the U. S. Court of Claims, sitting by designation.



APPEN D IX B . (C ont'd ).

for domestication.

The Mississippi law provides that upon receipt of an 
application for domestication, it shall be referred to the 
Attorney General for his opinion on whether there has been 
compliance with the law and whether it is to the best inter­
est of the State to grant it or deny it. If he expresses the 
opinion that it is not in the best interest of the State to grant 
it, he is required to give his reasons therefor.

Upon receipt of plaintiff's application, the Attorney 
General wrote the Governor that, upon examination of the 
application and the statutes of the State, he was of the 
opinion that the application "is not authorized to be approved 
by our office. " He did not give his reasons therefor.

In the Attorney General's testimony on the trial of this 
case, he stated that in his opinion he "did not deem it to be 
to the best interest of the State of Mississippi. " He was 
asked if the requirements of Section 4065.3 of the M issis­
sippi Code, requiring all State officers to undertake to 
maintain segregation of the races, or if the fact that the 
purpose of the NAACP was to aid and assist and develop the 
citizenship rights of Negro citizens without segregation and 
discrimination were factors influencing his determination. 
He replied in the negative but added:

My observation and experience with the 
NAACP which now covers about fourteen years 
led me, convinced me, that it is not to the best 
interest that the NAACP be domesticated, author­
ized to do' business within the State of Mississippi.
I have found that the NAACP, like a good many 
organizations of that kind, do not stick to the 
stated purposes of their corporate charter but go 
far beyond what their stated objectives and pur­
poses is [sic]. For instance, your charter says 
nothing about the method in which the NAACP will 
employ in attempting to attain their objectives, it 
says nothing about promoting riotous parades and 
disorders, inflammatory speeches, meetings and 
things of that kind that they do indulge in, none of 
which is referred to of course in the charter of 
incorporation. That's the reason I said it was not 
to the best interest of the State of Mississippi for 
this organization to have the stamp of approval of 
the State of Mississippi placed upon it.



APPEN DIX B , (C on t'd ).

He said that that was one of the things he took into considera­
tion in arriving at his opinion, but that there were others.

He said that the application for domestication showed 
that plaintiff did not meet the requirements of Section 5310.1, 
which provided that three of those who applied for incorpor­
ation of a company must be residents of the State of M issis­
sippi. Mr. McLendon, the Assistant Attorney General, said 
that this was the sole basis for his recommendation that 
plaintiff's application be denied.

This latter objection to plaintiff’s application is obvious­
ly untenable, since Section 5310.1 clearly has no application 
to foreign corporations seeking domestication. It applies only 
to persons seeking an original charter from the State of M is­
sissippi. The statute says that corporations "may * * * be 
incorporated on the application of any three members, all 
of whom shall be adult resident citizens of the State of M is­
sissippi, authorized by any of the said organizations, in its 
minutes, to apply for the charter. " [Emphasis supplied. ] 
Manifestly, this has no application to a foreign corporation 
seeking to domesticate. To so apply it would prevent most, 
if not all, foreign corporations from domesticating.

Nor is the Attorney General's first reason, stated above, 
adequate grounds for denying the application. In NAACP v. 
Alabama. 377 U.S. 288 (1964), the Court in its opening state­
ment in this case said it involved the right of the NAACP to 
carry on its activities in Alabama. In 1956 the State Attorney 
General had filed a bill in equity in the State court to oust the 
NAACP from the State and the court had issued a temporary 
restraining order prohibiting it from doing any business in 
the State and from taking any steps to qualify it to do so. The 
complaint detailed a number of activities of the defendant cor ­
poration, which, it was alleged, justified its ouster, among 
which were:

* * * that it had "encouraged, aided, and 
abetted the unlawful breach of the peace in many 
cities in Alabama for the purpose of gaining nation­
al notoriety and attention to enable it to raise funds 
under a false claim that it is for the protection of 
alleged constitutional rights"; [377 U.S. at 303]

These acts were alleged

* * * to be "causing irreparable injury to the 
property and civil rights of the residents and citizens



APPEN D IX B (C ont'd ):

of the State of Alabama for which criminal prosecution 
and civil actions at law afford no adequate relief. . .
The complaint stated also that "the said conduct, pro­
cedure, false allegations, and methods used by Respond­
ent render totally unacceptable to the State of Alabama 
and its people the said Respondent corporation and the 
activities and business it transacts in this State. " [377 
U.S. at 303]

It will be observed that the reasons given by the Attorney 
General of Alabama for seeking the ouster of the corporation 
from the State closely parallel the reasons given by the Attor­
ney General of Mississippi for recommending the disapproval 
of its application for domestication in that State. . .

There is no occasion in this case for us to con­
sider how much survives of the principle that a State 
can impose such conditions as it chooses on the right 
of a foreign corporation to do business within the State, 
or can exclude it from the State altogether. E. q . .
Crescent Cotton Oil Co. v. Mississippi. 257 U.S. 129,
137. This case, in truth, involves not the privilege of 
a corporation to do business in a State, but rather the 
freedom of individuals to associate for the collective 
advocacy of ideas. . .

We think that this case is controlling here, and on its author­
ity, a mandatory injunction must issue directing the Governor to 
approve plaintiff's application and directing the Secretary of State 
to take all needful steps to authorize the plaintiff corporation to do 
business in the State.

We are of the opinion that the District Court was in error 
in dismissing plaintiffs' complaint. The judgment of the D is­
trict Court is reversed and the case is remanded to it with di­
rections to issue the following injunction, . . .

II. The defendants, Ross R. Barnett, Governor of the State 
of Mississippi; Joe T. Patterson, Attorney General; and Heber 
Ladner, Secretary of State; their successors in office, their 
agents, servants and employees, are hereby required to approve 
the application for domestication of the NAACP and to take all 
necessary and proper steps to entitle it to do business in the 
State of Mississippi.



[Mississippi Code 1942, Recompiled!.

§5319. Resident agent of nonprofit nonshare or nonprofit 
or nonshare corporations: How designated.

Every nonprofit nonshare or nonprofit or nonshare corpor­
ation, organized or domesticated under the laws of the State of 
Mississippi, shall maintain an office in the county of its domi­
cile in this state, in charge of an officer or officers of the cor­
poration, or designate and appoint a resident agent for the ser­
vice of process by the directors (by whatever named called) of 
such corporation, a duly certified copy of the resolution desig­
nating such resident agent, and the written acceptance of such 
agency by the agent, to be filed with the Secretary of State, and 
the Secretary of State and his successors in office may be desig­
nated and appointed such agent in said manner and such designation 
and appointment may be so accepted and if accepted shall be so filed. 
A fee of Five Dollars ($5. 00) shall be paid to the Secretary of State 
for each designation and appointment of agent filed by him.

No such corporation shall do any business in the State of 
Mississippi until and unless it shall so maintain an office in the 
county of its domicile in this state, in charge of an officer or 
officers of the corporation, or it shall have filed a written 
power of attorney designating the Secretary of State of the State 
of Mississippi, or in lieu thereof an agent as above provided in 
this section upon whom service of process may be had in event 
of any suit against said corporation. The Secretary of State shall 
be allowed such fees therefor as are provided by law for desig­
nating resident agents.

Any such corporation failing to comply with the above pro­
visions as to maintaining an office or agent for process shall not 
be permitted to bring or maintain any action or suit in any of the 
courts of this state. The failure of any such corporation to com ­
ply with the foregoing provisions shall constitute a violation of 
the laws of the State of Mississippi and subject said corporation 
to a penalty of not more than One Hundred Dollars ($100.00) to 
be recovered by the Attorney General of Mississippi, or any 
District Attorney at the request of the Attorney General, in the 
Chancery Court of the county where such corporation has done 
such business or wherever such corporation may be found.

In the event of death, resignation or removal of such res i­
dent agent, another shall be substituted within thirty (30) days 
in the same manner and accompanied by the same fee as in the 
form er appointment; and until such substitution or, in the event

APPEN D IX C .



APPENDIX C (C ont'd ):

of the failure of such corporation to designate and qualify a res ­
ident agent where one is required by this Act, the Secretary of 
State shall be the resident agent for the service of process upon 
such corporation without resident agent until one shall have been 
designated as herein provided.

The resident agent of any such corporation shall be a person 
or persons residing in this state or a corporation, domestic or 
foreign, duly authorized to do business in this state and authorized 
by its charter or articles of incorporation or other instrument by 
which it is created to act as such agent. If the resident agent be 
a corporation, service of process upon it as such agent may be 
made at its registered office in this state by service on the presi­
dent, vice-president, an assistant vice-president, the secretary 
or an assistant secretary of such resident agent.

No foreign nonprofit nonshare or nonprofit or nonshare cor­
poration shall do business in the State of Mississippi until it has 
first been domesticated according to the laws of the State of M is­
sissippi, and any such corporation so doing business without such 
domestication shall not be permitted to bring or maintain any ac­
tion or suit in any of the courts of this state.

Any such corporation or any person or group of persons found 
carrying on any of such corporations businesses or functions by 
soliciting funds, holding meetings, maintaining offices, circulating 
literature, or performing any other business or function in the 
name of such corporation that has not qualified to do business in 
this state in the manner provided by law may be enjoined by suit 
in the Chancery Court of the First Judicial District of Hinds 
County brought by the Attorney General in the name of the State 
of Mississippi.

SOURCES: Laws, 1958, ch. 200; 1962, ch. 235, §150,
eff from and after January 1, 1963.



APPEN DIX P .

[Mississippi Code 1942, Recompiled]

§5340. Foreign corporations may be domesticated--attorney- 
general and the governor to approve charter.

When said copy has been filed with the governor of this 
state, he shall first take the advice of the attorney-general of 
the state as to the constitutionality and legality of the provisions 
of such charter or articles of incorporation or association, and 
if the attorney-general shall certify to the governor that he finds 
nothing in said charter or articles of incorporation or association 
that are violative of the constitution or laws of this state, the 
governor of the state may approve the same, and he shall write 
his approval at the bottom of said charter or articles of incor­
poration or association or certificate of incorporation, and 
shall sign his name thereto, and shall cause the great seal of 
the state to be thereto affixed by the secretary of state; but the 
governor may require amendments or alterations to be made 
previous to signing same, or if deemed expedient by him he 
may withhold his approval entirely.

SOURCES: Codes, 1906, §916; Hemingway's 1917, §4090; 
1930, §4161.