State ex rel. v. Gantt. clear this constitutional attack will be set forth fully in our discussion of the case, as will also such further facts as may be necessary to make clear what we shall say. Counsel for relator insist that the precise question involved in this action is one of first impression in this State. There have been, they concede, suits brought by non-residents against foreign insurance companies (Cf. Gold Issue M. & M. Co. v. Pennsylvania Fire Ins. Co., 267 Mo. 524), wherein the contention was made that no court of this State had jurisdiction; cases wherein a non-resident sued in a personally selected, or hand-picked forum a licensed and localized foreign business corporation (State ex rel. v. Jones, 270 Mo. 230, 192 S. W. 980); likewise a case wherein an action was brought before a justice of the peace of one county by a resident of another county against a licensed foreign insurance company (Meyer v. Insurance Co., 184 Mo. 481); but no case such as this, wherein it is admitted that jurisdiction lies at the domicile of plaintiff where the cause of action accrued, but denied that it lies in each of the 114 counties of this State at plaintiff's arbitrary selection. Relator's contentions are two: (a) The Act of 1885 (Laws 1885, pp. 183-184), now Section 7042, Revised Statutes 1909, is unconstitutional and void, because the title thereof recites that it is proposed to amend the then existing law, to-wit, Section 6013, Revised Statutes 1879; whereas, what was actually done by said act in the body thereof was to repeal the whole of said Section 6013, and enact a new section (now Section 7042, supra) in lieu thereof; and (b) that the circuit court of Audrain County got no jurisdiction to hear and determine this case, because the plaintiff in the action to which the instant suit is an cillary is a resident of the city of St. Louis, the cause of action accrued in said city, and defendant is a foreign but licensed insurance company, which has duly executed and filed a power of attorney authorizing the State Superintendent of Insurance to receive and ao State ex rel. v. Gantt. cept service of process in all actions brought against it. These in their order. I. We may pass over the contention made that Section 7042 is unconstitutional on account of alleged defects existing in the title of the act when it was originally passed in 1885; because, even if this point be well taken, it can in no way affect or aid Validity of relator. For relator has already filed a Statute. power of attorney with the State Superinten dent of Insurance, making this officer its attorney in fact for the purpose of receiving or accepting service of all process in actions brought against it in this State. If therefore the Act of 1885 is wholly void, as the alleged infirmity, if existent, would render it, it did not affect or repeal Section 6013, Revised Statutes 1879, which provided that a foreign insurance company, as a condition precedent to being authorized to transact business in this State, must execute and file a power of attorney designating and authorizing some person as its attorney in fact to accept and receive service of process, and therefore said Section 6013 is yet in force. [36 Cyc. 1056.] No reason appears why, absent the provision in said Section 7042, which specifically designates the State Superintendent of Insurance as the person who shall be named as such attorney in fact, such superintendent could not have been named as such attorney in fact under the provisions of said Section 6013. Since relator saw fit voluntarily to designate as its attorney in fact, the very person who is pointed out by the Act of 1885 as being the only person to be so designated, and since under Section 6013, Revised Statutes 1879, which is in force if Section 7042, Revised Statutes 1909, is void, the State Superintendent could have been so designated, it can make no very material difference to relator whether such designation of its attorney in fact was made pursuant to the Act of 1885, or pursuant to the provisions of said Section 6013. Manifestly in such situation the contention of relator as to the unconstitutionality of the Act of 1885, is untenable. State ex rel. v. Gantt. For conceding for the sake of the argument that its contentions in this behalf are well taken from an academic point of view, yet its designation of the State Superintendent of Insurance as its attorney in fact having been fully authorized by the law existing upon the subject when the Act of 1885 was passed, relator is in no wise hurt or affected by the latter act, and so it can not be heard to urge its unconstitutionality. [City of Lexington ex rel. v. Bank, 165 Mo. 671; 36 Cyc. 1056.] Statutes. II. The pertinent language of section 6013, Revised Statutes 1879, is verbatim with that of the Act of 1885, now Section 7042, Revised Statutes 1909. Both sections provide that "in all proceedings that may be instituted against such company, in any court History of of this State or in any court of the United States in this State," service of process therein may be had upon the attorney in fact, which the company shall designate by its filed power of attorney. Under the existing statute the Superintendent of Insurance must be the person so designated, while under the former statute any person could be named as such attorney in fact. So far as it is apposite to this discussion it will make no difference whether we look to the old statute or to the new statute. We will disregard the constitutional question, for the reasons stated, and look to Section 7042, Revised Statutes 1909. We think it is obvious beyond cavil that Section 7042, supra, is a service statute, and not, what we may denominate for convenience, a venue statute. This section nowhere provides, nor attempts to provide where any action shall be instituted. Actions having been brought in any county of the State wherein caeteris paribus, the proper venue attaches, service of process therein may, under Section 7042, be had upon the State Superintendent of Insurance. This view we think follows the very plain language of the section. Cogent and compelling toward the correctness of this view also is the fact that, when the provision requiring State ex rel. v. Gantt. foreign insurance companies to designate an agent on whom service could be had first came into our statutes, it provided that the resolution of the board of directors should authorize service upon such designated agent in all suits against the company "in any court of this State having competent jurisdiction." [R. S. 1855, page 885, Sec. 1.] Besides, as we shall hereafter demonstrate, if it be construed as a statute prescribing the venue in actions against foreign insurance companies, it would contravene the inhibition contained in Subdivision 4, of Section 53, of Article 4, of the Constitution. The point here vexing us is in its final analysis a question wholly of venue, otherwise we could close the discussion and refuse to issue our absolute writ in prohibition out of hand. For if the circuit court has jurisdiction to hear and determine the case out of which the instant prohibition case grew, if the service is good, then the proceeding to hear it upon a bad service is but a mere error capable of correction upon appeal, and ordinarily prohibition will not lie. But if upon no sort of service the Audrain Circuit Court could acquire jurisdiction to hear and determine the case, prohibition will lie. So whether such absolute lack of jurisdiction shall arise from the fact that service of process issuing out of the circuit court of Audrain County, when served upon the State Superintendent of Insurance, conferred no jurisdiction, or whether such lack of jurisdiction arose from lack of statutory venue in that county, makes no particular difference. It is at best a bare question of venue. If the venue under the facts is in the circuit court of Audrain County, then the writ of prohibition should be quashed; if it is not in said. court, then the writ should be made absolute. Venue is fixed by either Section 1754, or by Section 1751, Revised Statutes 1909, or by both of these sections construed in pari materia. If plaintiff in the suit against relator, wherein further proceedings are sought by the instant case to be prohibited, may, being a resident of the city of St. Louis, where its cause of action accrued, pick and choose at its own arbitrary will any State ex rel. v. Gantt. of the circuit courts of any of the 114 counties of the State as a forum having plenary jurisdiction to hear and determine this case, the writ herein should be quashed. Imprimis, we think it is important to determine whether Section 1751, Revised Statutes 1909, is to be construed in pari materia with Section 1754, or whether the latter section is not the sole one to be considered in determining the place where a corporation, foreign or domestic, is to be sued. Section 1751 first came into our statutes substantially in its present form in 1835. [R. S. 1835, p. 451, sec. 4.] It then (and we shall seek to show it always has) specifically applied to venue in actions by and against persons only. It then contained only the first and fourth subdivisions of the present statute, substantially, however, in their present forms. Before 1835, the provisions of our statutes governing venue were meager, but they fixed venue at the county inwhich the defendant resided, unless the latter were found in plaintiff's county, in which event the action could be brought therein. [Sec. 3, p. 622, Laws 1825.] Corporations were then, semble, sued in all respects as were persons. [Laws of Missouri, 1825, p. 223, secs. 1 and 2; R. S. 1835, secs. 1 and 2, p. 125.] No material changes were made in 1845 in the statute fixing the venue for actions between persons (R. S. 1845, p. 805, sec. 5), but it is worthy of note and we think decisive of this point that in the Revision of 1845 (Sec. 4, p. 238, R. S. 1845), it was provided that "suits against corporations shall be commenced in the proper court of the county wherein the general meetings of the members, or the officers of such corporation, have usually been holden, or by law ought to have been holden." In other words, venue was to be laid in the county of the chief office of such corporation. It is also worthy of note that the statute fixing venue in civil actions in cases between persons was found among those provisions dealing with practice at law in civil cases, while the like statute fixing the place for bringing suit against a corporation was found in the |