H. & S. A. RY. CO.
ZAMBRINO V. GALVESTON,
H. & S. A. Ry.
(Clwemit Cloun, W. D. Teil!as, EZ Paso D. March 19, 1889.)
FEDERAL COURTS-ACTION BETWEEN ALIEN AND CORPORATION-WHERE TAINABLE.
Act March 3, H187, provides that no civil suit shall be brought before the federal courts in any district other than that whereof defendant is an inhabitant except where jurisdiction is founded only on diverse citizenship. The act'of 1875 allowed suit to be brought also in the district in which defendan' should be found. Plaintiff is a citizen of Mexico. and defendant is a Texas railroad corporation, whose principal office is in the Eastern district out whose railroad extends into the Western district, in which it has agents to transact its ordinary business.· By Rev. St. Tex. art. 4120, defendant's public office shall be considered its domicile. By article 1198. subd. 21. defendant may be sued in any county into which its railroad extends. and process may be served on its tocal agent, (article 1223.) Held, that suit may be brought in the Western district.
At Law. On exceptions to plea in abatement. A. G. Wilcox, W. B. Sloan, and McGinnis McGinnis, for plaintiff. Davis, Beall Kemp, for defendant.
MAXEY, J. This suit was instituted by Pablo Zambrino against the Galveston, Harrisburg & San Antonio Railway Company to recover damages resulting from personal injuries received by Zambrino in El Paso county, while employed as a laborer upon a constrUction train of the railway company, which was at the time engaged in the work ofrepairing the road. Plaintiff is a citizen of the state of Chihuahua in the republic of Mexico, and the defendant is a corporation created by special acte of the legislature of this !State. Sp. Laws Tex. ·1870, p. 45et seq.; Sp. Laws 1850, p. 194 et seq. A plea in abatement is filed by the defendant, in which is asserted its immunity from suit .within this judicial district, and to this plea exceptions are interposed by the plaintiff. mainly technical in their Several points have been raised in character, which, at the request of the parties, will not be considered, and the sole question to be determined may be thus stated: Is the defendant suable in the circuit court of the United States within the Western judicial district of Texas? It is averred in the plea that the domicile and principal office of defendant is located at the city of Houston, which is within the Eastern judicial district. The pertinent facts bearing upon the issue presented are agreed upon by the parties, and will he regarded as incorporated into the plea, and thus considered by the court in connection with the question of law to he decided. They are asfollows: The plaintiff is a citizen of Mexico, and his cause of action arose in El Paso county, Tex. The defendant is a domestic railway corporation, having its principal office at the city of Houston within the Eastern judicial district, and a railway line extending from the city of Houston through the Western judicial district into the city of El Paso. At the latter place; and at other stations along the line of its road, the defendant has agents and servants through whom its usual and ordinary busi. v.38F';no.6-,-29
ness of a railway common carrier is transacted, and upon whom process may be served under the laws Of Texas. The act of congress, approved March 3, 1887, regulating the jurisdiction of the circuit courts, provides: "That the circuit courts of the United States shall have original cognizance, concurrent with the courts of the several states. of all suits of a civil nature. at law or in equity, where the matter in dispute exceeds, exclusi-ve of interest and costs. the sum or value of two thousand dollars, ... ... ... in which there shall be a controversy between citizens of different states, in which the matter in dispute exceeds, exclusive of interest and costs. the sum or value aforesaid. or a controversy between· citizens of the same state claiming lands nnder grants ofditIerent states, or a controversy between citizens of a state and foreign states. citizens, or subjects. in which the matter in dispute exceeds, exclusive of interest and costs. the sum or value aforesaid. ... ... * But no person shall be arrested in one district for trial in another in any civil action before a circuit or district court; and no civil suit shall be bronght before either of said courts against any person by any original process or proceeding in any other district than that whereof he is an inhabitant; but, where the jurisdiction .is fou.nded only on the that the action is between citizens of different states, suit shall be brought only in. the district of the residence of· either the plaintiff or the defendant." 24 St. at large. 552, 553. See. also, 25 U. S. St. (1887-1888) pp. 433. 434. Excepting. cases where jurisdiction is founded only on the fact that' the action is between citizens of different states, suit must, in pursuance of the act of 1887, be brought in the district of which the defendant is an inhabitant. Such was not the law as it aforetime existed in the act of March 3,1875, and prior judiciary acts. The corresponding provision of the act of March 3, 1875, reads as follows: " And no civil suit shall be brought before either of said courts against any person by any original process or . proceeding in any other district .than that Whereof he is an or in which he shall be found at the time of serving such processor comtuencing such proceeding." 18 St. at Large. 470; pesty, Fed. Proo.(6tbEd.) The in this was a substantial re.-enactment of the act of 1789, (Rev. St. § 739.) &.parte Schollenberger, 96 U. S. 37.5. It will thus be that an ifilportant clause of the act of 1875. is left out ofthe act :of 1887, to-wit: "Orin which he shall be found at the time ()f serving· such process or. commencing such proceeding." It follows that, if be suable in this district, such result springs only from the faot oflocal inhabitancy. Before discussing the question as. to:whether a domestic railway corporation can be an inhabitant of district other than that in which its office is located, it may be well to inquire into the general question ofjurisdiction"proper, of this court, affecting corporations, as distin.. from the mere. place of suability; for it is well unQ.erstopq. that t1;le general of the courts is not affected by an act of congress prescribing the place where a person may be The latter is in the nature of a persol?al.privilege qr exemption in favor of a defendant, and may, or may not. ,be waived, at his election. "If," say the supreme court, "the citizenship of the pl1rties sufficient, a defendant may consent to be sued anywhere he pleases." Ex parte SchoUenberger,.96 U. S. 378;
S. v. Telephone Cb., 29 Fed. 35; Fal.e4 v. Co" 32.;Fed. Re,Pn.676. '. . The act,regulating the jurisdiction of circuit. courts, provides, they shilll hare original cognizance of civil suits in which there shall . be "a controversy between citizens of a state and foreign states, citizens, or subjects." Of the jurisdiction in this case, both as to subject-matte!:' and the parties, there can be no doubt. As to subject-matter, suit is. brought to recover damages in an amount exceeding $2,000. As affect-, ing the parties, the plaintiff is a citizen of a foreign state, and the defend.. ant is a Texas corporation. Whatever doubts may have been formerly expressed by the courts, touching the citizenship of corporations for ju", risdictional purposes, (Strawbridge v. Curtiss,3 Cranch, 267; Bankv. De-veaux, 5 Cranch, 61 et 8eq.,) the question has been effectually set at rest by later cases and is no longer open to controvertly. The present dootrine, as settled by the supreme court, is, "that where So corporation is created by the laws of a state, the legal presumption is that its members are citizens of the state in which alone the corporate body has a legal existence; and that So suit by or against a corporation in its corporate name must be presumed to be a suit by or against citizens of the state which created the corporlltte body; and that no averment or evidence to thecontrary is admissible for the purposes of withdrawing the suit from the jurisdiction of a court of the United States." Steam-Ship Co. v. Tugman, 106 U. S. 120,121, 1 Sup. Ct. Rep. 58; Ra.ilroad Co. v. Koontz, 104 U. S.12; Railroad Co. y. Harris. 12 Wall. 81, 82; Paul v. Virginia, 8 Wall. 178; MuUerv. Dows. 94 U. S. 445; Cowle,sv. Mercer Co., 7 Wall. 121; Railroad Co. v. TV1I,eeler, 1 Black, 297; Marshall v. Railroad Co., 16 How. 314 et seq.; Railroad Cb. v. Letson, 2 How. 497 et 8eq. Jurisdiction in the case existing, is the suit brought within the proper district? Reference has already been made to the act of 1875 anciprior judiciary acts. Notwithstanding those acts, like the act of 1887, authorized suits againsta person in the district of which he was an inhabitant, as well (in this respect unlike the act of 1887) as where he might be found, it seems that prior to 1887, when corporation cases, involving the right of ,the corporation to be sued at a particular place, or in a state other than that of its creation, were presented to the courts for determination, they preferred to rest rather upon the ground that the corporation was" found" within a certain district than upon the groundofinhabitancYi and no decision of the supreme court has been found by me, or called to my attention, where the point was directly made and passed upon that a corporation is an inhabitant only of the state by which it is created. A similar view is expressed by Judge BLODGETT in the case of Manufacty,ring Co. v. Manufacturing Co., 34 Fed. Rep. 820.. It is a matter of somElinterest to note that, in the earlier cases, several of the circuit courts deplined to assume jurisdiction in suits against foreign (non-resident) corporations, although they were engaged in the conduct of their ordinary business in the state where the suit was brought, and had therein agents and servants upon whom process might be served. In the discussiop: of the question JQ,dge GRESHAM uses' this
REPORTER, vol. 38.
language: "It is too plain for argument that a corporation can not be found where it can have no legal existence," (Hurne v. Railroad Co., 8 Biss. 34;) and equally emphatic is Judge WOODRUFF when he says "such corporation cannot be found out of the state wherein it is created, within the meaning of the statute, and be served by or through its officers." Myers v. DO'l"I'. 13 Blatchf. 27. That view of the question was also taken by Mr. Justice NELSON and other judges, but it was completely overthrown by the supreme court in the case of Ex parte Schollenberger, in which Mr. Chief Justice WAITE, speaking for the court, says: "We are aware that the practice in the circuit courts generally has been to decline jurisdiction in this class of snits. Upon an examination of the reported cases in which this question has been decided. we find that in almost every instance the ruling was made upon the authority of-the late Mr. Justice NELSON in Day V. Manu,j'actul'ing 00., 1 Blatchf. 628. and Pomel'oy v. Rail. road 00·· 4 Blatchf. 120. These cases were decided by the learned justice. the one in 1850, and the other in 1857. long before our decision in Railroad 00. v. Ha1'ris, supra, which was not until 1870. and are, as we think. in can· flict with the rule we there established. It may also be remarked that Mr. Justice NELSON, as a member of this court, concurred in that decision." 96
U. S. 378.
Since the case of In8'Urance Co. v. French, 18 How. 404 et seq., it has been uniformly held by the supreme court that a corporation" cannot migrate, but may exercise its authority in a foreign territory upon such conditions as may be prescribed by the law of the One of these conditions may be that it shall consent to be sued there. If it do business there, it be presumed to have assented, and will be bound accordingly." Railroad Co. v. Harris, 12 Wall. 81. And it is further held that "a corporation of one state, doing business in another, is suable in the courts of the United States established in the latter state, if the laws of that state so provide, and in the manner provided by those laws." Insurance 00. v. Woodworth, 111 U. S. 146, 4 Sup. Ct. Rep. 364. The doctrine is clearly stated in an able opinion rendered by Judge JACKSON in the Telephone Case, before cited, where the leading authorities are collected. 29 Fed. Rep. 35. The defendant, admitting the p;eneral principle, established by the courts, that a corporation created by one state may be "found" and sued in another in the manner provided by the laws of the latter, contends that the rule in no wise affects the residence or habitation of the corporation; that its residence or habitation is at the place of its principal office, and cannot be elsewhere; and that suits against it must be brought in the district in which such principal office is located, that being tha only place of which it can be an inhabitant. While Judge BLODGETT inclines to the view that a corporation must be held to be an inhabitant only of the place" where it has its principal place of where its corporate offices and records are kept, and its corporate meetings are lawfully held," he thus defines "inhabitant:" ..An ·inhabitant' of a place is one who ordinarily is personally pre"ent there. not merely in interne. but as a'resident and dweller therein. Holmes v. Rail1·oad 00.,9 Fed. Rep. 229. ·Inhabitant:' One who dwells or resides
ZAMBRUIO V. GALVESTON, H.cI: S. A.BY.
permanently in a place, or bas a fixed residence. as distinguished from an 0ccasional lodger 01' Inlperial Dict. ·Inhabitant: 2. (Law.) One who has a legal settlement in a town, city, or parish; a resident.' Webst. Dict. · Inhabitant: A dweller or householder In any place.' Tomt Law Dict. " 34 Fed. Rep. l:U8, 819. "Citizenship" and "residence" are not synonymous terms, (Robertson v. Cease, 97 U. S. 648,) although ','resident" and "inhabitant" are usu· ally so regarded, (In re Wrigley, 8 Wend. 140; Rooserelt v. Kellogg, 20 Johns. 210; Broum v. Boulden, 18 Tex. 434; Bouv. Law Dict. tit. "Residence;") and while a person may be said to have but one domicile, he may have several residences, (Orawjord v. Caruther8, 66 Tex. 200; Brown v. Boulden, 18 Tex. 434.) It is said by Mr. Morse in his Treatise on Citizenship, at page 99, that"While an indIvidual can have but one domicile, he may have many residences; the residence may be constructive. * * * The word' reside' is used in two senses,--the one, constructive, technical, legal; the other, denoting the personal actual habitation of individuals." The definitions given apply properly to natural, not artificial, persons;
to individuals endowed with will and intelligence, rather than to mere
creations of law. But corporations are held to be "inhabitants." Thus, "a corporation created by and doing business in a particular state, is to be deemed to all intents and purposes as a person, although an RI'tificial person, an inha bitant of the same state, for the purposes of its incorpa. ration, capable of being treated as a citizen of that state, as much as a natural person." Railroad Co. v. Letson, 2 How. 558. By the laws of Texas, "person" includes a corporation. Rev. St. art. 3140, subd. 2: Referring to the duty of corporations, imposed upon inhabitants by the statute of HeQry VIII. to repair bridges and highways, Mr. Chief Jus· tice MARSHALL says that"Under this statute those have been construed inhabitants who hold lands within the city where the bridge to be repaired lies, although thbj reside elsewhere." And further, on the same page, it is said: "Lord COKE says: · Every corporation and body politic residing in any county, riding, city, or town corporation, or having lands or tenements in any shire, quce propriis manibu8 et sumptibus possident et habent, are said to be inhabitants there, within the purview of this statute.'" Bank v. Deveaux, 5 Cranch, 88, 89; Railroad 00. v. Letson, 2 How. 558. The English doctrine as to the competency of an American corpora. tion to acquire a residence in England is stated by Justice BLACKBURN, in Ne:wby v. Fire-Arms Co. In that case the defendant corporation had a place of business in England, and there defacto carried on its business, just as an Ellglish corporation might have done, but thE.' principal place of business 3,nd head office were in America. The court say: "Such a corporation does, for many purposes, reside both in England and in its own country. In the case of Iron 00. v. MaiJlaren, 5 H. hCas. 459. LQrd,ST. LEI)NAR:QS, taking a different view of the facts from that taken by
mrda BROUGHAM and CRANWORTH, thought theScotcbcorporation was resident in England. We think that there is great good sense in what Lord ST,' LEONA1U>8states to be thehtw!on. his view of the: facts. He says: <If the service'ori .the agent is rIght, it is because, in respect: of their house of business in England, they have a domicile in England, and in respect of their manufactory in Scotland they have a domicile there. There may be two domiciles,' and two jurisdictions; and in this case there are, as I conceive. twodomiciltlS and a double sOl'tof jurisdibtion,-one in Scotland and one in England;. and for the purpose of carrying on their business one is just as much the domicile of the as the other.' The majority of the lords a different view·of the facts" and thought that, though the corporation possessed property in England, and had agents there, they did not caITY on business there;. but we do not find that they differed from Lord ST. LEONlARDS' view of the law, if they had agreed as to his facts; and in the present case the fact is clear that the American company are carrying on trade selves in London. and therefore, we think, must be treated.as resident here." J.. R. 7 Q. B. 293, 1 Moak, Eng. R. 326, 327. The supreme court lends recognition to the view that a corporation may have "two domiciles and a double sort of jurisdiction," in the case of 11l8uranceCo. v. Woodworth. Mr. Justice BLATCHFORD, speaking for the court, in a suit brought in the state of Illinois by a citizen of that state against a Massachusetts corporation. says: "In v,iew of this legislation and the policy embodied in it, when this corporation, not ol'ganized under the laws of Illinois. has by virtue of those laws a place of business in Illinois, and a general agent there, and a resident attorney there for the service of pl'ocess, and can be compelled to pay its debts there by judicial process, and has issul'd a policy payable on death to an administrator, the corporation must be regarded as having a domicile there in the sense of the rUle that the debt on the policy is assets at its domicile, so as to uphold the grant of lettel:& of there." 111 U. S. 145.4 Sup; ct. Rep. 364. It is apparent, from an examination of the Woodworth Que, that a corporation can not only have a domicile in the state of its creation, but for certain purposes, jurisdictional in their nature, it may hltve an additional one in some other state. Two domiciles being admitted, the conclusion is evident that it may be a resident or an inhabitant of two or more states. Indeed, the assumption seems to me to be unsound, which denies the existence of a dOUble habitation. "All that there is," say the supreme court, "in the legal residence of a corporation in the state of its creation consists in the fact that by its laws the corporators are associated together and allowed to exercise as a· body certain functions, with a Of succession in its members. Its officers and agents constitute all that is visible of its existence; and they may be authorized to act for it without, as well as within, the state. There would seem, theiefore, to be no sound reason why, to the extent of their agency, they should not be equally deemed to represent it in the states for which they are lippoillted, when it is called to legal responsibility for transactions," St. Clairv. Cox, 106 U. S.355, 1 Sup. Ct. Rep. 354. In his work on Removal of Causes, at page 38, Judge Speer adopts
ZAMBRINO V. GALyESTON, H. &; S. A·. BY. 00.
the view that a .corporation, while it can onlybea citizen and have its legal residence in the state which creates it, may through its agents be-. . come an inhabitant of several states, so that it may be sued." Itis alSQ said by the supreme court, speaking of a corporation: "This ideal existence is considered as an inhabitant when the general spirit and purpOl'les of the law require it." And the court propounds the question: "If it be so for the purposes of taxation, why is it not so for the purposes' of a suit in the circuit court of the United States, when the plaintiff has the pl'Oper residence?" 2 How. 559. The inquiry may be further ex-, tended. Do not the general spirit and purposes of the law require a foreign corporation to be an inhabitant of a state when it has agents who· transact its corporate business there, and when, under the lawsof that state, it may be sued there, and service of process had upon such resident agents? To deny its inhabitancy, under thecir.cumstances named,. would deprive the circuit courts of jurisdiction in an important clW$s of. cases, whicJa it is thought was never intended by congress in the enactment of the law of March 3, 1887. For example: An English land, insurance, mortgage, or cattle company, doing business in Texas through the medium of its agents, has the right to invoke the aid of the .circuit. courts to enforce its rights of propertjin a suit against a citizen of Xexas. But if the corporation be, as urged by the defendant, an inhabitant only; of England,the same courts would be powerless to extend relief to .the Texas citizen. Such seems not to be the doctrine of the English Courts,' nor of the supreme court of the United States. If I understand the decisions, in. my judgment, it is going too far to suppose that the circuit courts are stripped of their jurisdiction, in cases of that character, by the mere omission in the act of 1887 of the words, contained in the act of 1875,...;.J'oF in which he shall be found at the time of serving such pr(}ol cess, or commencing such proceeding." . The defendant, however, insists that the question has been settledt by the supreme court and several of the circuit courts in the following caSeS:· Ez parte SchoUenbcJ'ger, aupra; Railroad Co. v. Kocmtz, 104 U.S. 11; Ji'ilU v. Railroad 0>., 37 Fed. Rep. 66; Denton v. International Co., 36 Fed·. Rep. 1, and Fales v. Railway 0>.,32 Fed. Rep. 673 et seq.; and there may be added, Intmrance 00. v. Francis, 11 Wall. 216. It may bead.. mitted that the circuit court decisions go to the extent claimed for them by the defendant, but, with due respect be it said, I am unable to cur either in the reasoning ofthejudges, or in the deductions drawDiby them from the decisions of the supreme court. They rely mainly,upon the Cases of SchoUenberger and Koontz. In Filli v. Railroad Co., J LACOMBE says: Analogy would indicate that the place of its inhabitancy is to be ascer, tained in the samtl way as its citizenship, and such is the expl'essed opinion ot. the only supreme court decisions bearing upon the Ew parte: berger. 96 U. S. 377; Railroad 00. v. Koontz, 104 u.s.n. * * *To sustain any action in this district 'Plaintiff, mnstshowthat the defendant's:!!!gal habitation,is here. This he cannot do unless the rule for ascertaining the oitizenship and residence of corporations laid down by tbe supreme court in the cases dtlparted from." 37 Fed. Rep. 66. . '.i .;;
By referring to the Schellenberger Case it will be seen that the supreme court waive a decision of the question touching the inhabitancy of the corporation. 'At page 375 the court expressly say: ''It is unnecessary to inquire whether these several companies were inhabitants of the district. The requirements of the law, for all the purposes of' this case,are satisfied if they were found there at the time of the commencement of the suits." ' In Railrdad Co. v. Koontz the question was one of citizenship, and the point ruled, by the court ofappeals of Virginia , was, that the com pany was' a corporation of that state, and therefore not entitled to remove the suit to the circuit ClOurt. This ruling was reversed by the supreme court of the United States, and it was there held that the company was a :Maryland corporation, and for the purposes of jurisdiction a citizen of that state, and,hence,that the was removable. If the language of the court be taken in connection with the facts ·of the case and the question to be, depresented, it is apparent that nothing more was, or termined than to define and fix the citizenship of the railroad company for jurisdictional pUTposes. Mr. Chief Justice WAITE, delivering the opinion of the court, says: "A corporation may for the purposes of suit be said to be born where by law it is created and organized, and to reside where by or under the authority' of its charter its principal office is. A corporation, therefore, crp,ated by and organi;led undel' the laws of a parti,cular state, and having its principal office there, is, under the constitution and laws, for the purpose of suing and being sued, a citizen of that state. possessing all the rights, and having all the pow·' ers, its charter confers. It cannot inigrate nor change its residence without the consent, express or implied, of its state; but it may transact business wherevedtBcharter allows. unless prohibited by local'laws. Such has been for a long time the settled doctrine of this courh 'It must dwell in the place of its creation, and cannot migrate to another sovereignty.''' lQ!! U. S. 12.,
It appears to my mind that' by the use of the word "migrate," the same employed by Mr. Chief Justice TANEY in Bank v. Earle, 13 Pet. 588, 599, the court simply intended to convey the idea that it was incompetent for a corporation to change its statu8 of citizenship, as fixed by the state of its creation, without the consent lawfully given of proper state authority. And the same may be said of the PrancisGase, which, in essential quite similar to the Gase of Koontz. In that, the question was one of citizenship, arising upon a petition to remove the suit to the circuit court. The removing party was a New York corporation, but an effort was made to remove the suit by virtue of corporate ship in Mississippi. The court say, in denying its right to remove: .. The declaration avers that the plaintiff in error (the defendant in the court below) is a corporation created by an act of the legislature of the state of New York, located in Aberdeen, Miss., and doing business there under the laws of the state. This, in legal effect, is an averment that the defendant was a citizen of New York, because a corporation can have no legal existence outside of the sovereigonty by which it was created. Its place of residence is there, and can be nowhere else. Unlike a natural person, it cannot change its domicile at·will;and although it lllay be permitted to transact business:where its charter does not operate, 'it cannot on that account acquire a residence
ZAMBRINOtl. GALVESTON, R. & S. A.
there. As, therefore, the declaration is on its face bad in not showing that one of the parties to the snit was a citizen of Mississippi, it follows that the tranRfer of the cause was not authorized by law." 11 Wall. 216. . It will be observed that ,the exact question in the case was whether ·the corporation was a citizen, not resident, of Miesissippi, for the fact of ·residence was entirely immaterial,as citizenship, not residence, confers jurisdiction upon the circuit courts. The settlement of a disputed question by the supreme court should always find ready acquiescence on the part of the inferior courts; and, in this instance, the court would cheerfully yield to superior authority if that authority had decided the point at issue. "But," employing the .language of Judge SAWYER in treating of another controverted question, "I cannot, after a full consideration of the case, satisfy myself that 'the supreme court designed the decision to be so far-reaching in its effects." Holmes v. Railroad Co., 9 Fed. Rep. 242. The precise point invqlved here was not passed upon by the supreme court in any of the cases to ,which reference has been made, and although some of the general language employed by the court, considered by itself, lends partip,l sanctiolil to. the view urged by counsel, still the rule is recognized that "the language of a judicial opinion must be considered with reference to th'e caSe decided," (Id,. 243;) and, thus considered, it is perfectly clear the supreme court has pot decided that a corporation, owing its corporateex\::tence to the laws of a single state, may not, for jurisdictional purpOSes, be an inhabitant ora state other than that of its creation. The decisions, it is well. to remark, upon which counsel rely, treat-of foreign cOl:poratipns, and reference will now be made to a different line of authorities,where the rule is applied as to domestic corporate bodies. Thus it is said by Judge BLATCHFORD, in Tl"uckCo. v. Railroad Co.:. II Although this suit is one not of a local nature,-,-that is, is what, if it ·a suitat law, wouldbe a transitory actioo,-yet the act has no application to a case where a single defendant resides as fully in all the In the state as in anyone of them. .A corporation, if it can be properly said to 'reside' at all, resides in all the districts of the state creating it." 10 Blatchf.
The supreme court of New York say: "lL is only upon the notion that the corporation might be treated as an inhabitant of Washington county that he (the justice) could entertain jurisdiction at all. In my judgmenta railroad corporation, whose road passes through two or more counties, ma)? be sued before a justice in either county, provided ·the process can be served on the proper officer in such county. A railroad company must be trlc'ated as an inhabitant and freeholder in each county its track is laid." Sherwood v. Rail1'oad 00., 15 Barb. 652. ' . In Bristol v. Railroad Co. the supreme court of Illinois apply a similar rule as to the residence of a corporation: "The residenoo of a corporation-if it can be said to have a residence-is' necessarily where it exercises corporate functions. It dwells in the place where its business is done. It is located where its fraochises are exercised. It is present where it. is engaged in the prosecution of the corporate enterprise. · This corporation has a legal residence in allY county in which it operates the road, or exercises corporate powers aud ,pri vileges. In legal contemplation.
it resides in the counties through' which its road passes, and in which it
acts Its business. " 15 Ill. 437.
rule is thus stated by the supreme "Tbere"can be no doubt that, wltbin the limits of the state which grants the chatter, a corporation may have 8 special constructive residence in more places than one, so as to be ;cbarged with taxes and dues, and be subjected to tbe local jurisdiction where its officers and are actually present in the. of its franchises and in carrying on its business; and the legal to the locality of its residence of a corporation is not necessarily principal. office or place of businesl!. It depends on the official exhibition of legal and 'local existence. and its 'place of residence may be wherever its corporate business is done." Oity of st. Lou'is v, Fe1'ry 00., 40 Mo. 586, 5l:17; citing GlaizB v. Railway 00.,1 Strob; 70; Oromwell v. Insurance 00.,2 Hich. Law, 512. · " Thesanie court, in Slavens v. Railroad Co", following the rule announced in the foregoing case, use the language: ,i It seems to me upon a fair constI:uction, of the statute that a corporation isa resideIit of the county through Which its line of road passes. and in which it has an agent upon whom process cailbe served, and Where suits are authorIt is 'true, upon this question tberehave been eontra-ized to be decisions." 51 Mo. 309. ., · At page'S10 the court refAr to Baldwin v. Railroad Co., 5 Iowa, 518, and .Richardaoo v. Railway Co., 8 Iowa, 260, as having 'followed and affirmed ,the doctrine. RailroadCo.v. Cooper, 30 Vt. 476, and ThOrn v. Railroad 0,.,26 N. J. Law, 121, 124, seem to hold a different rule, either directly or inferentially. The exact points decided by those cases,however, may be easily ascertained by referring to the decisions themselves. There' is no fixed meaning attached, by the laws of this state, to the term "residence" or "habitation" of a railway corporation. "Every rail':toad or otheroorporation, organized or doing business in this state under :the thereof, have a public office or place mthls state for the trana,actlOn of Its bUSIness, where transfers of , stock shall be made," etc. .const. art. 10, § And by statute it is declared, that" every railroad corporation shan have and maintain a public office at some place upon the line ofits road in this state," (Rev. St. art. 4115;) &nd" public offica of'a railroad corporation shall be considered domlctIeq(s1;lch corporation," (Id. art. 4120.) The public office may be changed "at pleasure" by publication of notice for a stipnlated 'time. Id. art. 4118. While the laws do not provide that a railroad ootporationniaybe a resident or inhabitant of any particular county, (otherwise than py declaring the public office to be its domicile,lt is, by statute, made suable "in any county through or into which the railroad "ofauch 'corporation extends oris operated,"(Rev. St. art. 1198,subd. 21,) and" citation may be served on the president, secretary, or treasurer of " such company orassociation, (incorj>orated company orjoint-stock dation,) or upon the local agent representing such company or 'tiQuin the county in which suit is brought, or byll:laving a copy of the at the princjpal offieeof the company during office hours," (Id. art. .,1223.)
The road of defendant extends into and 'through this district. It has local agents, here, Who transact its, or9inarycorp9rate business. It may ,be sued here under the laws of this state, nnd process is authorized to be served upon agents representing it here.. Thefac(that it has its principal office in the Eastern district, and 'that, is constructively an inhabitant thereof, should not exempt it from suit in this district. In my judgment the general spirit and intent of the; law require the defendant, for jurisdictional purposes, to be an inhabitant of this district; and I hold that it must be so regarded within the meaning of the act of congress. The exceptions to the plea in abatement will therefore be sustained.. It is a matter of regret that the amount in con. troversy is not sufficient to authorize a revision of the judgment by the supreme court, whose decision of the question is essential to the establishment of a fixed and uniform rule.
DUNLEVY 11. DUNLEVY et' Ill.
March 14, 1889.)
L EQUITY-BILL OF REVIEW.. . · A bill to set aside a decree filed after the lapse of a. greater period thaD that allowed for a writ of error or appeal from snch decree cannot be treated as a bill of review. It is no excuse,for the del ay that. after entry of the decree. suit to enforce the same eqnitiellclaimed in the first suit was brought in a state court. On such bill. errors which may have been committed in the entry of the decree cannot be inquired into. ·
BAME-PRAOTICB- SERVICE OF,PAPllIRB·.
A rule to plead to a cross-bill was presented personally to the ber of the firm. of,the solicitors 'of the defendant in the cross-bill. and service was admitted by his clerk by his directions. A clerk of such firm had told d,efendantln the cross-bill that he (the clerk) would not acknowledge sel'Vlce of tbe cooss-bill. and. if defendant was served. suc1l clerk would attend 'to it. but it did not appear that complainant iii the cross-bill. or bis solicitor, knew of such conversation orunrlerstanding. A non-resident solicitor had-also been retained by defendant in the cross-bill. and had appeared in the case. Defendant knew of the filing of the cross bill. and expected to be by notice on process to make defense. Held, that the service wassufficieni.
Tbpugh it were Insufficient to attempt to compel the appearance of defendant in the cross bill by anything less than personal service of the suppoona, and a decree on the cross bill was entert:d by default, the error could be rem,,': : edied only by bill of review or appeal.
Defendant's. solicitor testified that he dld-,not think a notice served on contained a clause that a final decree would be asked for. and that he would not have admitted service had the clause been included. The letter-book of the solicitor serving the notice showed an, Impression copy of tbe notice. with the. clause copied as part of it. and the solicitor testified that, an im.pressio!1 copy was served. Two impression copies were taken. The clause was evidently written after the notice had been otherwise completed. but in the hand. and with the ssme Ink. JieUJ. that it. sufficiently Appeared: that the clause was,in the notice served. Defendltnt aDd his co-defendant In the cross-bill, an attorney, occupiedhds· it Was the common intetest of such co-defendant aud com-