THE NATIONAL NURSERYMAN 
2 79 
INTERPRETATION OF WISCONSIN LAW 
Due to the fact that he had received many inquiries in regard to the new Wisconsin law governing the sell¬ 
ing of nursery stock in the state, Charles J. Brown, chairman of the Legislative committee, secured 
a legal opinion on the matter from McGuire and Wood of Rochester. Since it is more than likely 
that there still exist some who wish enlightenment on the subject, we print entire the legal opinion as 
rendered. It is addressed to Charles J. Brown, chairman, and reads : 
We have your letter of August 4th enclosing a copy of 
Chapter 468 of the Laws of 1909 of the State of Wisconsin in 
regard to nursery inspection within that state. You have 
asked us to examine the law and report to you upon it. 
For the purposes of this opinion we shall assume you 
and your associates send or employ persons in Wisconsin to 
take orders for nursery stock; that those orders so taken 
are mailed to you and your associates at their offices outside 
of the State of Wisconsin, and if such orders are approved 
by you and your associates, then and thereafter you ship 
the goods into the State of Wisconsin to fill the orders. 
This is quite important, because we are called upon to 
give you an opinion as to what is and what is not “doing 
business” in the State of Wisconsin. 
Section 1494—4 provides that whenever any trees, shrubs, 
plants, or vines are shipped into Wisconsin from another 
state they must have upon the package, box, or car a 
certificate showing that the contents have been inspected 
by a duly appointed state or government official showing 
that they are apparently free from the San Jose scale, etc. 
This is a reasonable provision for the state to adopt and, 
as we understand it, you and your associates are now 
conforming to that regulation. 
Section 1494-6 provides: 
“No person, firm or corporation shall engage or continue 
in business of selling, within the State, fruit trees, etc., with¬ 
out first having obtained a license to do business in the 
state. Agents and others offering for sale nursery stock in 
this state shall be required to obtain a duplicate of the 
license at the cost of a dollar each.” 
Under the authorities which we shall quote to you, 
when you obtain orders, as above indicated, you are not 
offering for sale nursery stock in the state and you are not 
called upon, nor any of the agents soliciting the orders 
called upon, to obtain a license. Your nursery stock is 
offered for sale in the State of New York. 
Section 1494-7 provides that any person, firm or corpora¬ 
tion outside of the state may obtain a license to sell plants 
or nursery stock in the state upon the payment of Ten 
Dollars, etc., and that the agents must carry with them a 
duplicate copy of the license. 
This provision does not affect, nor can it affect you or 
your associates who are shipping nursery stock into the 
state for the reasons which we shall give hereafter. 
Many of the states have provided the terms upon which 
foreign corporations and others can “do business” in the 
state and these laws have been the subject of considerable 
litigation, but we think the law is getting pretty well set¬ 
tled in' that regard at present. 
In the case of the Pennsylvania Colleries Company vs. 
McKeever, 183 N. Y., 98. A West Virginia corporation 
sued for the price of a cargo of coal delivered to the defend¬ 
ant in the City of New York. A defense was interposed 
upon the ground that the corporation was “doing business” 
in the State of New York without first procuring from the 
Secretary of State a certificate authorizing it to do business 
in that state. Notwithstanding this defense, the plaintiff 
had judgment in the Court below and this judgment was 
affirmed-in the Court of Appeals, and in the opinion the 
following language was used: 
“To be doing business in this state implies corporate con¬ 
tinuity of conduct in that respect, such as might be evidenced 
by the investment of capital here with the maintenance of 
an office for the transaction of its business, and those inci¬ 
dental circumstances which attest the corporation intends 
to avail itself of the privilege to carry on a business. In 
short, it should appear that the corporation and its officers 
intend to established a continuous business in the City of 
New York and not one of a temporary character.” 
In Pennsylvania its highest Court said: 
“A corporation of one state may send its agents to 
another to solicit orders for its goods, or contract for the 
sale thereof, without being embarrassed or obstructed by 
state regulation as to taking out license, filing certificates, 
or establishing resident agencies. The state which imposes 
limitations upon the power of a corporation, created under 
the laws of another state to make contracts within the state 
for the carrying on of commerce between the states, violates 
that clause of the constitution which confers upon congress 
the exclusive right to regulate commerce.” 
In Indiana, it was held that an ordinance of a town 
requiring all traveling peddlers of goods to take out a 
license was void as to residents of other states who were 
engaged in selling goods located in such other states on the 
ground that it was an interference with inter-state commerce. 
In Illinois, it was held that an ordinance of a city pro¬ 
hibiting the selling of books within the city by an agent of a 
wholesale house of another state without taking out a 
license and paying a license fee was void as being in conflict 
with the federal power to regulate commerce between 
the states. The Supreme Court of the United States (113 
U. S., 728) long since decided, in construing a statue of 
Colorado, that it could not be construed to prevent the 
plaintiff, a corporation of another state, from transacting 
any business in Colorado, which, of itself, is commerce, 
and any attempt to prohibit it, except upon conditions, is 
