Date: 03-02-2017

Case Style: Lillian Figueroa v. BNSF Railroad Company

Case Number: SC S063929

Judge: Kistler

Court: Supreme Court of Oregon

Plaintiff's Attorney: Stephen C. Thompson and Kristen A. Chambers

Lisa T. Hunt, Law Office of Lisa T. Hunt, Lake Oswego,
filed the brief for amicus curiae Oregon Trial Lawyers
Association.

Defendant's Attorney: W. Michael Gillette, Sara Kobak, Noah Jarrett, Aukjen Ingraham, Andrew S. Tulumello, Michael R. Huston

Robyn Ridler Aoyagi, Tonkon Torp LLP, Portland, filed
the brief for amicus curiae Washington Legal Foundation.

Description: Oregon requires that foreign corporations doing
business in this state appoint a registered agent to receive
service of process. ORS 60.731(1).1 The primary question
that this case presents is whether, by appointing a registered
agent in Oregon, defendant (a foreign corporation)
impliedly consented to general jurisdiction here—that is,
whether defendant consented to have Oregon courts adjudicate
any and all claims against it regardless of whether
those claims have any connection to defendant’s activities in
this state.2 Defendant moved to dismiss this action because
the trial court lacked general jurisdiction over it. When the
court denied the motion, defendant petitioned for an alternative
writ of mandamus. We issued the writ, the trial court
adhered to its decision, and the trial court’s ruling is now
before us for decision. We hold, as a matter of state law, that
the legislature did not intend that appointing a registered
agent pursuant to ORS 60.731(1) would constitute consent to
the jurisdiction of the Oregon courts.
Plaintiff was working for BNSF Railway Company
in Pasco, Washington, where she was repairing a locomotive
engine. To perform the repair, she had to stand on a portable
stair placed on a catwalk on the locomotive. While she was
reaching up to remove an engine part, the “portable stair
supplied by [BNSF] rolled or kicked out from under [p]laintiff,”
causing her to sustain substantial injuries. Plaintiff
alleged that her “injuries resulted in whole or in part from
1 A “foreign corporation” refers to a corporation incorporated under the laws
of another state or country. See ORS 60.001(15) (defining that term).
2 Since International Shoe Co. v. Washington, 326 US 310, 66 S Ct 154, 90
L Ed 95 (1945), the United States Supreme Court has identified two types of
jurisdiction—specific and general. See Goodyear Dunlop Tires Operations, S.A.
v. Brown, 564 US 915, 919, 131 S Ct 2846, 180 L Ed 2d 796 (2011) (defining those
terms). Specific jurisdiction “describes the exercise of jurisdiction over a suit arising
out of or related to the defendant’s contacts with the forum.” Philip Thoennes,
Personal Jurisdiction Symposium: An Introduction, 19 Lewis & Clark L Rev 593,
594 (2015) (internal quotation marks omitted). By contrast, general jurisdiction
“allows a state to exercise personal jurisdiction over a nonresident defendant,
even if the cause of action neither arose in [the forum state] nor related to the
[defendant’s] activities in that State.” Id. at 595. Although those terms did not
gain currency until relatively recently, we use them in this opinion to describe
the extent to which courts both before and after International Shoe exercised
jurisdiction over nonresident defendants.
Cite as 361 Or 142 (2017) 145
[BNSF’s] negligence in failing to provide [her] with a safe
place to work, and with safe tools and equipment.” For the
purposes of this case, we assume that those allegations are
true.
BNSF is a foreign corporation. It is incorporated
in Delaware and has its principal place of business in Fort
Worth, Texas.3 Plaintiff brought this action against BNSF
in Oregon to recover for the injuries that she sustained in
Washington. When BNSF moved to dismiss for lack of personal
jurisdiction, plaintiff advanced three arguments. She
argued: (1) that BNSF’s activities in this state were sufficient
for Oregon courts to exercise general jurisdiction over
it; (2) that the Federal Employees Liability Act, 35 Stat 65,
as amended, codified as 45 USC sections 51-60, gives a state
general jurisdiction over interstate railroads doing business
in the state; and (3) that, by appointing a registered agent
in Oregon to receive service of process, BNSF had consented
to general jurisdiction in Oregon. Our opinion in Barrett v.
Union Pacific Railroad Co., 361 Or 115, ___ P3d ___ (2017),
resolves plaintiff’s first two arguments. We write only to
address her third argument regarding Oregon’s registration
statute.
I. OREGON’S REGISTRATION STATUTE
ORS 60.721 requires that foreign corporations doing
business in Oregon maintain a registered office and appoint
a registered agent in this state. ORS 60.731(1) provides
that the registered agent “shall be an agent of such corporation
upon whom any process, notice or demand required
or permitted by law to be served upon the corporation may
be served.” The parties disagree about what ORS 60.731(1)
means. Relying on a 1915 Oregon case interpreting an earlier
corporate registration statute, plaintiff argues that, by
appointing a registered agent, BNSF impliedly consented
3 BNSF operates in 28 states, including Oregon, as well as two Canadian
provinces. BNSF has been registered to do business in Oregon since 1970. It
owns 235 route miles of track in Oregon and has trackage rights to another
151 miles in the state, which together represent slightly more than one percent of
the 32,500 route miles that BNSF operates in all 30 jurisdictions. BNSF employs
368 employees in Oregon, who comprise less than one percent of its 41,000 employees.
Finally, BNSF operates rail yards in Bend, Klamath Falls, and Portland, as
well as an intermodal facility in Portland.
146 Figueroa v. BNSF Railway Co.
to general jurisdiction in Oregon. BNSF responds that ORS
60.731(1) requires only that a foreign corporation designate
a person in Oregon upon whom process may be served; it
says nothing about jurisdiction. Alternatively, BNSF argues
that, even if appointing a registered agent manifests implied
consent to specific jurisdiction, it does not constitute consent
to general jurisdiction. Finally, BNSF contends that requiring
foreign corporations to consent to general jurisdiction as
a condition of doing business in Oregon violates the federal
constitution.
As noted above, our holding in this case turns on the
legislature’s intent in enacting ORS 60.731(1). Specifically,
we conclude that appointing a registered agent to receive
service of process merely designates a person upon whom
process may be served. It does not constitute implied consent
to the jurisdiction of the Oregon courts. In reaching
that conclusion, we follow our usual methodology for interpreting
statutes. We consider the text, context, and legislative
history of ORS 60.731(1). See State v. Gaines, 346 Or
160, 170-71, 206 P3d 1042 (2009) (describing statutory construction
methodology).
A. Text
ORS 60.731(1) provides:
“The registered agent appointed by a foreign corporation
authorized to transact business in this state shall be
an agent of such corporation upon whom any process, notice
or demand required or permitted by law to be served upon
the corporation may be served.”
Textually, ORS 60.731(1) addresses service, not jurisdiction.
Jurisdiction refers to the forum’s authority to adjudicate
claims against a defendant. Pennoyer v. Neff, 95 US 714,
722-23, 24 L Ed 565 (1878). Service refers to the process
by which a defendant over whom a court has jurisdiction is
brought before the court. See id. at 727. Both are necessary
for a court to issue a binding judgment, but the two concepts
are not synonymous.
By its terms, ORS 60.731(1) addresses only one of
those concepts. ORS 60.721 requires foreign corporations
doing business here to designate a registered agent in this
Cite as 361 Or 142 (2017) 147
state upon whom process may be served. ORS 60.731(1)
defines the function that the registered agent serves; the
agent is a person authorized to accept service of process
“required or permitted by law” to be served on the corporation.
The statute neither addresses jurisdiction nor equates
appointing an agent for service with consent to jurisdiction
in Oregon. Beyond that, ORS 60.731(1) requires that
the agent be authorized to accept “any process, notice or
demand required or permitted by law to be served upon
the corporation.” (Emphasis added.) As the emphasized
text makes clear, ORS 60.731(1) looks to some other source
of law to define which process a registered agent must be
“required or permitted” to accept. If another source of law
(the Fourteenth Amendment or a state long-arm statute, for
instance) does not require or permit process to be served
on the corporation, then ORS 60.731(1) does not provide an
independent source of jurisdiction where there otherwise
would be none. Rather, ORS 60.731(1) merely requires the
registered agent be authorized to accept the process that
another source of law “require[s] or permit[s]” to be served
upon the corporation.
B. Context
Context includes “ ‘the preexisting common law
and the statutory framework within which the law was
enacted.’ ” Stevens v. Czerniak, 336 Or 392, 401, 84 P3d 140
(2004) (quoting Denton and Denton, 326 Or 236, 241, 951
P2d 693 (1998)). In this case, there are three contextual
sources that bear on the interpretation of ORS 60.731(1):
(1) due process limitations on exercising personal jurisdiction
over foreign corporations; (2) the 1903 Oregon corporation
statute requiring foreign corporations to appoint
a registered agent for service of process as a condition of
doing business here and state cases interpreting that statute;
and (3) the 1953 Oregon corporation statute, which
revised and replaced the 1903 statute and enacted what
is currently codified as ORS 60.731(1). We describe each of
those sources briefly and then explain why those sources
persuade us that this court’s interpretation of the 1903
registration statute does not inform the current registration
statute’s meaning.
148 Figueroa v. BNSF Railway Co.
1. Constitutional limitations on jurisdiction over foreign
corporations
Between the enactment of the first comprehensive
Oregon corporation statute in 1903 and the first major revision
of that statute in 1953, the terms on which state courts
could constitutionally exercise personal jurisdiction over foreign
corporations changed. A brief discussion of that change
in constitutional law is necessary to put the corresponding
changes to Oregon’s registration statutes in perspective.
In 1878, the United States Supreme Court held
that the Due Process Clause places geographical limits
on a state’s exercise of jurisdiction over persons and property.
Pennoyer, 95 US at 722-23; see Burnham v. Superior
Court of Cal., Marin County, 495 US 604, 110 S Ct 2105,
109 L Ed 2d 631 (1990) (plurality) (describing Pennoyer).
Regarding personal jurisdiction, the Court recognized that
a state can adjudicate transient claims (negligence claims,
breach of contract claims, and the like) against nonresident
defendants (natural persons) if those persons were served
within the state’s geographical boundaries.4 Pennoyer, 95
US at 733; see Burnham, 495 US at 617 (plurality). Under
Pennoyer, a person’s presence within the state’s territorial
boundaries gave the state authority to adjudicate transient
claims against that person, and service while the person
was within the state’s jurisdiction perfected that authority.
Pennoyer did not consider when a state can exercise
personal jurisdiction over foreign corporations. Before
International Shoe Co. v. Washington, 326 US 310, 66 S Ct
154, 90 L Ed 95 (1945), the cases that addressed that issue
started from the proposition that a corporation was subject
to suit only in the state where it was incorporated. See
St. Clair v. Cox, 106 US 350, 354, 1 S Ct 354, 27 L Ed 222
(1882) (discussing earlier decisions). As the Court explained,
however, “[t]he doctrine of the exemption of a corporation
4 The specific issue in Pennoyer was whether Oregon could exercise quasi in
rem jurisdiction over property located in this state to determine a nonresident
defendant’s personal obligations. The Court held that Oregon had jurisdiction to
do so but service had not been proper. In Shaeffer v. Heitner, 433 US 186, 97 S Ct
2569, 53 L Ed 2d 683 (1977), the Court held that, after International Shoe, a state
could not rely on quasi in rem jurisdiction to determine a nonresident defendant’s
personal obligations, even with proper service.
Cite as 361 Or 142 (2017) 149
from suit in a State other than that of its creation was the
cause of much inconvenience and often of manifest injustice.”
Id. To avoid that problem, two related but separate theories
for acquiring jurisdiction over foreign corporations developed.
One theory was based on implied consent. See
St. Clair, 106 US at 354-55; The Lafayette Insurance Co. v.
French, 59 US (18 How) 404, 407-08, 15 L Ed 451 (1855).
Consent was implied either because the foreign corporation
was doing business in the state or because the corporation
had complied with a state statute requiring that it appoint a
registered agent in the state to receive service of process. See
William F. Cahill, Jurisdiction over Foreign Corporations,
30 Harv L Rev 676, 690 (1917); Joseph Henry Beale, The
Law of Foreign Corporations § 280 (1904) (consent implied
from merely doing business in a state). The other theory
was based on presence. A foreign corporation that was doing
business in a state was present in that state in much the
same way that a natural person was. Compare International
Harvester v. Kentucky, 234 US 579, 34 S Ct 944, 58 L Ed 1479
(1914) (continuous course of soliciting business and delivering
machines in Kentucky was sufficient to establish that
the corporation was doing business there and thus present),
with Green v. Chicago, Burlington & Quincy Ry., 205 US 530,
533-34, 27 S Ct 595, 51 L Ed 916 (1907) (soliciting business
alone in a state insufficient to establish that the corporation
was “doing business” there). If the foreign corporation’s
in-state agent was served with process while the corporation
was doing business in the state, then the state courts could
adjudicate transient claims against it. Id.
Because both implied consent and presence rested
on the premise that a foreign corporation was “doing business”
in a state, the line between the two theories was not
always distinct. See Tauza v. Susquehanna Coal Co., 220
NY 259, 115 NE 915 (1917) (reasoning that the defendant
did sufficient business within New York to be subject to its
jurisdiction under International Harvester and that it was
amenable to general jurisdiction as a result of a state registration
statute). Additionally, the cases were not always
consistent regarding the consequences of the two theories.
For example, a 1904 treatise explained that the majority
rule was that a foreign corporation that was doing business
150 Figueroa v. BNSF Railway Co.
in a jurisdiction impliedly consented to general jurisdiction.
Beale, The Law of Foreign Corporations § 280. The minority
rule was that a foreign corporation doing business in a state
was subject only to specific jurisdiction—a rule that Oregon
initially followed. Id. (noting minority rule); see Farrell v.
Oregon Gold Co., 31 Or 463, 49 P 876 (1897) (doing business
in Oregon without appointing an agent for service of process
gave rise to specific jurisdiction); Aldrich v. Anchor Coal Co.,
24 Or 32, 32 P 756 (1893) (same).5
Before 1945, whether consent was manifested by
appointing a registered agent pursuant to a state statute
varied according to the terms of the statute. In 1882, the
Court stated, as a general proposition, that foreign corporations
that appointed a registered agent as a condition
of doing business consented to specific jurisdiction. See
St. Clair, 106 US at 356 (so stating). Later, in reconciling
potentially divergent decisions, the Court explained:
“Unless the state law either expressly or by local construction
gives to the appointment [of a registered agent] a
larger scope, we should not construe it to extend to suits in
respect of business transacted by the foreign corporation
elsewhere.”
Mitchell Furn. Co. v. Selden Breck Co., 257 US 213, 216,
42 S Ct 84, 66 L Ed 201 (1921). However, if a state statute
made general jurisdiction the consequence of appointing
a registered agent, then complying with the statute would
constitute consent to general jurisdiction. Pennsylvania Fire
Insurance Co. v. Gold Issue Mining Co., 243 US 93, 37 S Ct
344, 61 L Ed 610 (1917). Finally, the Court recognized that,
even though a foreign corporation had consented to jurisdiction
by appointing a registered agent, it was not subject
to the state’s jurisdiction if it were no longer “doing business”
in the state when the action was filed. Chipman, Ltd.
v. Jeffery Co., 251 US 373, 379, 40 S Ct 172, 64 L Ed 314
(1920); see Mitchell Furn. Co., 257 US at 216 (recognizing
5 In 1907, the United States Supreme Court held that a corporation that was
merely doing business in a state was subject only to specific jurisdiction. Old
Wayne Life Ass’n v. McDonough, 204 US 8, 22-23, 27 S Ct 236, 51 L Ed 345 (1907).
The Court thus rejected the proposition stated in the 1904 treatise on foreign corporations,
cited above, that merely doing business in a state without appointing a
registered agent could subject a foreign corporation to general jurisdiction.
Cite as 361 Or 142 (2017) 151
that qualification). That is, the foreign corporation’s consent,
manifested by appointing a registered agent, was not sufficient
standing alone to give the forum general jurisdiction
over the corporation. Chipman, Ltd., 251 US at 379.6
In 1945, the Court recast the constitutional bases
on which a state can exercise personal jurisdiction over nonresident
defendants. See International Shoe, 326 US at 316-
19. It explained that presence within the jurisdiction was no
longer a necessary prerequisite to jurisdiction over a nonresident
defendant. Id. at 316. It reasoned that, for foreign corporations,
the “terms ‘present’ or ‘presence’ are used merely
to symbolize those activities of the corporation’s agent within
the state which courts will deem to be sufficient to satisfy
the demands of due process.” Id. at 316-17. Similarly, it recognized
that “some of the decisions holding a 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.” Id. at 318. The Court explained
that “more realistically it may be said that those authorized
acts were of such a nature as to justify the fiction.” Id.7
The Court thus shifted the federal constitutional
basis for exercising jurisdiction over foreign corporations
away from conclusory terms like “presence” and legal fictions
like “implied consent” and grounded it instead on an
assessment of “the quality and nature of the [defendant’s]
activity [within the forum] in relation to the fair and orderly
administration of the laws which it was the purpose of
6 Chipman’s holding appears to rest on the Court’s interpretation of the state
registered agent statute, although the Court explained that basing the decision
on state law did not imply that federal law would not lead to the same result. 251
US at 379.
7 After noting the legal fiction that foreign corporations had given implied
consent to service and suit, the Court cited specific parts of four of its decisions.
See International Shoe, 326 US at 318. The citations to each decision concerned
consent implied from appointing a registered agent for receipt of process. See
Washington v. Superior Court, 289 US 361, 364-65, 53 S Ct 624, 77 L Ed 1256
(1933); Commercial Mutual Accident Co. v. Davis, 213 US 245, 254, 29 S Ct 445,
53 L Ed 782 (1909); St. Clair, 106 US at 356; The Lafayette Insurance Co., 59 US
(18 How) at 407. The Court thus made clear that consent implied from appointing
a registered agent was a legal fiction that “more realistically” rested on the
extent of a corporation’s activities within a state.
152 Figueroa v. BNSF Railway Co.
the due process clause to insure.” Id. at 319. As the Court
explained:
“[T]o the extent that a corporation exercises the privilege
of conducting activities within a state, it enjoys the
benefits and protection of the laws of that state. The exercise
of that privilege may give rise to obligations, and, so
far as those obligations arise out of or are connected with
the activities within the state, a procedure which requires
the corporation to respond to a suit brought to enforce them
can, in most instances, hardly be said to be undue.”
Id. It followed, the Court explained, that courts will have
specific jurisdiction “when the activities of the corporation
[in the forum state] have not only been continuous and systematic,
but also give rise to the liabilities sued on.” Id. at 317.
The Court also recognized that “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.” Id. at 318.
With that federal constitutional background in
mind, we turn to Oregon law between 1903 and 1953.
2. Oregon law between 1903 and 1953
In 1903, the legislature enacted Oregon’s first comprehensive
statute regulating domestic corporations and
foreign corporations doing business here. Or Laws 1903,
p 39. Among other things, the 1903 act required foreign corporations
doing business in Oregon to appoint a registered
agent in this state to receive service of process. Id., pp 44-45,
§ 6. Specifically, section 6 of the 1903 act provided that, as a
condition of doing business in Oregon, foreign corporations:
“shall duly execute and acknowledge a power of attorney
* * * [which] shall appoint some person, who is a citizen
of the United States and a citizen and resident of this
state, as attorney in fact for such foreign corporation, * * *
and such appointment shall be deemed to authorize and
empower such attorney to accept service of all writs, process,
and summons, requisite or necessary to give complete
jurisdiction of any such corporation * * * to any of the courts
of this state or United States courts therein, and shall be
deemed to constitute such attorney the authorized agent of
Cite as 361 Or 142 (2017) 153
such corporation * * * upon whom lawful and valid service
may be made of all writs, process, and summons in any
action, suit, or proceeding, commenced by or against any
such corporation * * * in any court mentioned in this section,
and necessary to give such court complete jurisdiction
thereof.”
Id.
Section 6 was written broadly. It required that the
corporation’s registered agent (its attorney in fact) be authorized
to accept process “in any action, suit, or proceeding”
that was “necessary to give [an Oregon] court complete
jurisdiction” over the foreign corporation. Building on that
statute, plaintiff contends that, in 1915, this court held
that appointing a registered agent pursuant to section 6
constituted consent to general jurisdiction in Oregon. See
Ramaswamy v. Hammond Lumber Co., 78 Or 407, 152 P
223 (1915). In our view, this court’s decision in Ramaswamy
stands for a more limited principle than plaintiff perceives.8
However, a 1928 decision, which plaintiff did not cite, provides
greater support for her position. See State ex rel. Kahn
v. Tazwell, 125 Or 528, 266 P 238 (1928), overruled in part
on other grounds, Reeves v. Chem Industrial Co., 262 Or 95,
100-01, 495 P2d 729 (1972). We accordingly describe that
decision briefly and then turn to the third contextual source
that bears on our inquiry—the revision of Oregon’s corporations
act in 1953.
In Kahn, the plaintiff (who was not a resident of
Oregon) filed an action in Oregon to recover on an insurance
policy that the defendant (a New York corporation)
had issued to the plaintiff in Germany. 125 Or at 531-32.
The defendant was doing business in this state and had
appointed a registered agent to receive process pursuant to
a statute governing foreign insurers, which was essentially
8 The question in Ramaswamy was whether, under the 1903 act, a claim
against a foreign corporation for an injury that occurred in Clatsop County should
have been brought in Clatsop or Multnomah County. 78 Or at 411. This court reasoned
that, under the 1903 act, the claim could be brought in Multnomah County,
“no matter where the cause of action arose.” Id. at 419. In making that statement,
the court did not hold that the claim could be brought in Multnomah County
even if it arose in another state. The court held only that, under the 1903 act, a
claim against a foreign corporation could be brought in Multnomah County even
though it arose in a different county in this state.
154 Figueroa v. BNSF Railway Co.
identical to section 6 of the 1903 act. See id. at 533-34 (setting
out the registration statute applicable to foreign insurance
companies).9 This court held that service on the defendant’s
registered agent in Oregon gave this state jurisdiction over
the defendant and that Oregon had “jurisdiction of the subject
matter of the action, notwithstanding the fact that the
contract of insurance was executed outside the state, and
notwithstanding the fact that the plaintiff is a nonresident
of the State of Oregon.” Id. at 542.
In reaching that holding, this court touched on a
variety of theories and sources. Among other things, it noted
that foreign corporations that do business in a jurisdiction
consent to be sued there either as a result of doing business
in the state or as a result of appointing a registered agent
as a condition of doing business. See id. at 538, 541. It also
noted cases standing for the proposition that foreign corporations
doing business in a state are present there. Id. at
537-38, 540. After citing a variety of legal sources, including
various legal encyclopedias, the court concluded that Oregon
had jurisdiction over the defendant to adjudicate a cause of
action that arose in Europe. Id. at 542.
The decision in Kahn lacks a clear analytical thread.
It consists of a compilation of theories and authorities that
reflect, in many ways, the varied theories for exercising
jurisdiction over foreign corporations that the federal and
state courts had articulated in the early part of the twentieth
century. It is difficult to say, however, that Kahn does
not stand for the proposition that, by appointing a registered
agent pursuant to a statute virtually identical to section 6
of the 1903 act, the defendant consented to general jurisdiction
in Oregon. Id. at 542. That theory and others run
through the decision. We accordingly assume, for the purposes
of deciding this case, that Kahn stands for the proposition
that appointing a registered agent pursuant to the
1903 act constitutes implied consent to general jurisdiction.
The question that remains is whether that interpretation of
9 Although the defendant was doing business here and presumably issued
other insurance policies to Oregon residents, the opinion in Kahn does not identify
any act or event in Oregon that related to the claim or policy at issue in that
case.
Cite as 361 Or 142 (2017) 155
the 1903 act continues to inform our understanding of ORS
60.731(1).10 We accordingly turn to ORS 60.731(1), the third
contextual source that bears on the inquiry.
3. Oregon law after 1953
Fifty years after it passed the 1903 corporations act,
the Oregon legislature undertook a major revision of that
act. See Or Laws 1953, ch 549. In 1953, it enacted the Oregon
Business Corporation Act, which it modeled on the 1950
Model Business Corporation Act drafted by the American
Bar Association (ABA). See Meyer v. Ford Industries, 272 Or
531, 535, 538 P2d 353 (1975) (so noting). The 1953 Oregon
Business Corporation Act addressed domestic and foreign
corporations separately. See Or Laws 1953, ch 549, §§ 98-116
(setting out provisions for foreign corporations separately
from the previous provisions that had addressed domestic
corporations).
Unlike the 1903 corporations act, the 1953 act
required both domestic and foreign corporations to appoint a
registered agent in this state. That is, the 1953 act included
virtually identically worded provisions requiring domestic
and foreign corporations to appoint a registered agent
and specified that the agents for both types of corporations
would serve the same function. On the latter issue, section
13 of the 1953 act provided that for domestic corporations:
“The registered agent so appointed by a corporation
shall be an agent of such corporation upon whom any process,
notice or demand required or permitted by law to be
served upon the corporation may be served.”
Id. § 13; see ORS 60.121(1) (codifying section 13). Section
107 provided that for foreign corporations:
“The registered agent so appointed by a foreign corporation
authorized to transact business in this state shall be
an agent of such corporation upon whom any process, notice
or demand required or permitted by law to be served upon
the corporation may be served.”
10 As explained below, we conclude that Kahn is no longer good law after the
enactment of the 1953 Oregon Business Corporation Act. In reaching that conclusion,
we express no opinion on whether, under International Shoe, the Oregon
courts could have exercised specific jurisdiction over the defendant in Kahn.
156 Figueroa v. BNSF Railway Co.
Or Laws 1953, ch 549, § 107; see ORS 60.731(1) (codifying
section 107). The only difference between the two provisions
is that the latter applies to “a foreign corporation authorized
to transact business in this state” while the former applies
to domestic corporations. Although the 1953 act has been
amended since its enactment more than 60 years ago, the
terms of ORS 60.121(1) and ORS 60.731(1) have remained
unchanged.11
With that context in mind, we turn to whether
this court’s interpretation of the 1903 act (or its counterpart
for insurers) in Kahn informs our understanding of
ORS 60.731(1). We draw three inferences from that context.
First, the text of ORS 60.731(1) differs significantly from
the text of the 1903 act, which suggests that the 1953 legislature
had a different goal in mind. Second, those textual
changes correspond with the shift in 1945 of the constitutional
basis for exercising jurisdiction over foreign corporations
from implied consent to the nature and quality of the
corporation’s contacts with the forum state. Third, by specifying
that service of process on the registered agents for
domestic and foreign corporations serves the same function,
Oregon’s 1953 corporation act negates the proposition that
appointing a registered agent constitutes implied consent to
jurisdiction.
a. Textual differences between the 1953 and 1903
acts
ORS 60.731(1) lacks the terms that persuaded this
court in Kahn that section 6 of the 1903 act gave Oregon
courts general jurisdiction over foreign corporations.12 The
1903 act directed foreign corporations to execute a written
power of attorney appointing an attorney in fact as the
agent for the corporation. Or Laws 1903, pp 44-45, § 6. It
then provided that
11 In 1987, the legislature renumbered the provisions in the 1953 corporation
act. See Or Laws 1987, ch 52. However, except for being renumbered, the terms of
ORS 60.121(1) and ORS 60.731(1) have remained the same since 1953.
12 As noted above, the foreign insurer in Kahn appointed a registered agent
pursuant to a statute governing foreign insurers that is essentially identical to
section 6 of the 1903 act. For ease of reference we refer only to the 1903 act, which
Kahn cited interchangeably with the specific statute at issue in that case.
Cite as 361 Or 142 (2017) 157
“such appointment * * * shall be deemed to constitute such
attorney the authorized agent of such corporation * * * upon
whom lawful and valid service may be made of all writs,
processes, and summons in any action * * * in any court
commenced * * * against any such corporation, * * * and necessary
to give such court complete jurisdiction thereof.”
Id. (emphasis added). As the court observed in Kahn, the
terms that the 1903 legislature used were “ ‘broad and comprehensive.’
” 125 Or at 538 (quoting Ramaswamy, 78 Or at
419). Not only did the 1903 act provide that appointing a
registered agent for service of process would give Oregon
courts “complete jurisdiction” over a foreign corporation, but
it specified that it would do so “in any action * * * in any
court” in this state.
The current statute, by contrast, is worded more
modestly. As discussed above, ORS 60.731(1) refers only to
service. It omits any reference to jurisdiction, and certainly
any reference to “complete jurisdiction.” Indeed, because
ORS 60.731(1) provides that the registered agent be authorized
to accept only that process that is “required or permitted”
by another law, it makes clear that ORS 60.731(1)
is not itself a source of jurisdiction, as Kahn concluded the
counterpart to section 6 of the 1903 act was.
b. Changing due process limitations on jurisdiction
As discussed above, in 1856 and again in 1882,
the United States Supreme Court recognized that foreign
corporations that appointed an agent to receive service of
process impliedly consented to the state court’s jurisdiction.
St. Clair, 106 US at 356; The Lafayette Insurance Co., 59
US (18 How) at 407. Implied consent was one way of avoiding
the immunity from suit that foreign corporations otherwise
would enjoy outside the state of their incorporation. See
St. Clair, 106 US at 356. When Oregon enacted its registration
statute for foreign corporations in 1903, it joined
a growing number of states seeking to make foreign corporations
amenable to suit within their state. See Cahill,
Jurisdiction over Foreign Corporations, 30 Harv L Rev at
690 n 31 (listing Oregon as one of 37 jurisdictions that, by
1917, had adopted such statutes).
158 Figueroa v. BNSF Railway Co.
Oregon’s 1953 corporations act and the 1950 model
act on which it was based were written after the Court
decided International Shoe in 1945. That decision grounded
jurisdiction on the foreign corporation’s contacts within the
state instead of basing jurisdiction on fictions like implied
consent. After International Shoe, a state need not resort
to statutes, like Oregon’s 1903 act, that provided that service
on the foreign corporation’s registered agent would lead
to “complete jurisdiction” over the corporation. Given that
shift in understanding, it should come as no surprise that
the 1950 model corporation act adopted by Oregon in 1953
omitted any reference to service conferring jurisdiction over
a foreign corporation. That is, International Shoe provides a
complete explanation for the shift in wording between the
1903 and the 1953 corporate registration statutes.
c. Equivalent provisions for domestic and foreign
corporations
A third contextual clue points in the same direction.
As noted, Oregon’s 1953 act requires both domestic and
foreign corporations to appoint a registered agent. It also
defines, in provisions that are essentially identical, the function
that the registered agent serves for both domestic and
foreign corporations. The 1953 act provides that a corporation’s
registered agent, whether appointed by a domestic or
by a foreign corporation, “shall be an agent of such corporation
upon whom any process, notice or demand required or
permitted by law to be served upon the corporation may be
served.” ORS 60.731(1) (foreign corporations); ORS 60.121(1)
(domestic corporations).
Because a state already has jurisdiction over
domestic corporations, there is no need to require a domestic
corporation to appoint a registered agent in order to obtain
jurisdiction over the corporation, nor is there any reason to
assume that, in appointing such an agent, a domestic corporation
impliedly consents to jurisdiction. It follows that,
when the 1953 Oregon legislature required that registered
agents appointed by domestic corporations be authorized to
receive “any process, notice or demand required or permitted
by law to be served upon the corporation,” it presumably
did so for the sole purpose of having an easily identifiable
Cite as 361 Or 142 (2017) 159
person within the state upon whom process could be served.
Unless the model act and the Oregon legislature intended to
require an unnecessary act, requiring a domestic corporation
to appoint a registered agent for receipt of service does
not constitute consent to jurisdiction.
The same terms that apply to domestic corporations
in ORS 60.121(1) apply to foreign corporations in ORS
60.731(1). Ordinarily, we assume that, when the legislature
uses the same terms throughout a statute, those terms have
the same meaning. PGE v. Bureau of Labor and Industries,
317 Or 606, 611, 859 P2d 1143 (1993); accord ORS 60.714(1).13
That is, we assume that the 1953 legislature intended that
ORS 60.731(1) would serve the same purpose for foreign corporations
that ORS 60.121(1) serves for domestic corporations.
Both statutes require foreign and domestic corporations
to designate a person upon whom process “required or
permitted by law to be served upon the corporation may be
served.” If the legislature intended that appointing a registered
agent pursuant to ORS 60.731(1) would constitute consent
to jurisdiction while appointing a registered agent pursuant
to ORS 60.121(1) would not, it picked an odd way of
saying so. Rather, the more reasonable inference from that
context is that, under the 1953 act, neither a domestic nor a
foreign corporation consents to jurisdiction by appointing a
registered agent for service of process.
For the reasons discussed above, the text and the
context of ORS 60.731(1) persuade us that the 1953 Oregon
legislature required domestic and foreign corporations to
designate a registered agent only so that there would be an
easily identifiable person on whom any process required or
permitted by law to be served on the corporation could be
served. The legislature did not intend that, in appointing a
registered agent, a foreign corporation also would impliedly
consent to the jurisdiction of the Oregon courts.
13 ORS 60.714(1) provides that a foreign corporation authorized to do business
in Oregon shall have the same rights and obligations as a domestic corporation,
except as otherwise provided. In this instance, ORS 60.731(1) does not
provide that appointing a registered agent for a foreign corporation will have a
different effect than the same act will have for a domestic corporation. Rather, it
provides that the act will have the same effect. Given ORS 60.714(1), we interpret
the effect of complying with ORS 60.731(1) the same way that we interpret the
effect of complying with ORS 60.121(1).
160 Figueroa v. BNSF Railway Co.
C. Legislative history
There is little Oregon-specific history for the 1953
corporations act. We know that, in 1951, the Oregon State
Bar committee on corporation law was studying the ABA’s
1950 Model Business Corporation Act. Oregon State Bar,
Committee Reports 11 (1951). The committee hoped to present
“a draft of a Revised Corporation Code” to the 1952 Bar
Convention. Id. We also know that, in 1953, the Oregon legislature
adopted the Oregon Business Corporation Act based
on the ABA’s model act. Beyond that, there are no records
of the legislative proceedings that led to the adoption of the
1953 Oregon Business Corporation Act.
Previously, this court has looked to the comments to
the model act to determine the legislature’s intent in enacting
the Oregon Business Corporation Act. See Meyer, 272
Or at 536 & n 5 (looking to that source); cf. Datt v. Hill,
347 Or 672, 680, 227 P3d 714 (2010) (considering, as legislative
history, the comments to a uniform act that Oregon
adopted).14 We follow that course here. Section 11 of the
model act requires domestic corporations to “have and continuously
maintain” a registered office and a registered
agent. American Law Institute, Model Business Corporation
Act § 11 at 12 (revised 1950). Section 13 provides that the
registered agent appointed by a domestic corporation “shall
be an agent of such corporation upon whom any process,
notice or demand required or permitted by law to be served
upon the corporation may be served.” Id. at 13. The comment
to those sections explains:
“Any notice or process required or permitted by law may
be served upon the registered agent (Section 13). The
name and address of the initial agent must be stated in the
articles of incorporation (clause (j) of Section 48) and any
14 The Model Business Corporation Act was initially drafted in 1946 and
revised in 1950. Ray Garrett, Model Business Corporation Act, 4 Baylor L Rev
412, 424-25 (1952). The revised version of the act was published initially in 1950
and republished with comments by the American Law Institute in 1951. Id. We
rely on those comments, which would have been available to the 1953 Oregon
legislature. We note that the comments to the model act were supplemented when
a three-volume annotated edition of the act was published in 1960. See American
Bar Foundation, Model Business Corporation Act Annotated (1960). Although the
supplemented comments are consistent with our conclusion, they would not have
been available to the 1953 legislature. For that reason, we do not rely on them.
Cite as 361 Or 142 (2017) 161
change of the name or address of the agent must be filed
with the Secretary of State (Section 12). Failure to appoint
and maintain such an agent subjects the corporation to
involuntary dissolution (clause (d) of Section 87).”
Id. at 12.
The comment to sections 11 and 13 is brief. As the
committee that drafted the act noted, the primary function
of the comments is to “explain the interrelations of [the]
Sections to other Sections of the Model Act, with a minimum
of editorial comment.” Id. at x (preface). The committee
explained that it “consider[ed] that in all other respects
the provisions speak for themselves.” Id. Taking the committee
at its word, we conclude from the text of sections 11
and 13 and the comment to them that the purpose of requiring
domestic corporations to appoint and maintain a registered
agent was to provide an easily identifiable person
upon whom process could be served. Nothing in the text of
those provisions or the comment suggests that, by requiring
domestic corporations to appoint a registered agent for service
of process, the corporation consented to jurisdiction.
The model act imposes the same requirements on
foreign corporations. Section 106 requires that foreign corporations
authorized to transact business in a state “have
and continuously maintain” in that state a registered office
and a registered agent. Id. at 92-93. Section 108 provides for
foreign corporations, as section 13 provided for domestic corporations,
that the registered agent so appointed “shall be
an agent of such corporation upon whom any process, notice
or demand required or permitted by law to be served upon
the corporation may be served.” Id. at 94. As with domestic
corporations, the comment on those sections is brief. It
states: “A foreign corporation is required to designate and
maintain a registered office and agent in the State (Section
106) for service of process (Section 108).” Id. at 91.
The comment identifies the same purpose for
requiring foreign corporations to appoint a registered agent
that it does for domestic corporations—foreign corporations
are required to designate a registered agent “for service
of process.” We draw two inferences from that comment.
First, if domestic corporations do not impliedly consent to
162 Figueroa v. BNSF Railway Co.
jurisdiction by appointing a registered agent, then neither
do foreign corporations. Second, the only reason that the
comment identifies for requiring foreign corporations to
designate a registered agent is “for service of process.” The
comment does not say that appointing a registered agent in
a state constitutes implied consent to jurisdiction.
As we read the comments to the model act, they
support and are consistent with the conclusion that we draw
from the text and context of Oregon’s Business Corporation
Act—appointing a registered agent for service of process
serves the same purpose for foreign corporations that it
serves for domestic corporations: It designates an easily
identifiable person upon whom service may be made. It does
not constitute implied consent to jurisdiction.

* * *

15 In the trial court, plaintiff did not contend, in response to BNSF’s motion
to dismiss for lack of general jurisdiction, that the trial court could exercise specific
jurisdiction over BNSF. As in Barrett, we express no opinion on whether the
failure to raise specific jurisdiction in the trial court forecloses plaintiff from
doing so when this case returns to that court. The parties have not briefed that
issue in this court, and we leave the issue initially to the trial court.

Outcome: Considering the text of ORS 60.731(1) together with
its context and history, we conclude, as a matter of state law,
that the Oregon legislature did not intend that appointing a
registered agent pursuant to that subsection would constitute
consent to the jurisdiction of the Oregon courts. For the
reasons set out above and in Barrett, the trial court erred in
ruling that it had general jurisdiction over BNSF.15
Peremptory writ to issue.
WALTERS, J., concurring.
Giving effect, as I must, to the court’s decision in
Barrett v. Union Pacific Railroad Co., 361 Or 115, __ P3d __
(2017), I concur in the court’s decision in this case.
Brewer, J., joins in this concurring opinion.

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