SCOTT". TEXAs LAl!i'D, 4: CATTLE CO.

226, .

"

SCOTT v.TExAS LAND & CATTJ,E CO., Limited.
(Oircuit Oourt, W. D. Texas. December 21, 1889.)
RBKOVAL Oll CAUSllS-NoN-RESIDENTS-FOREIGN CORPORATIONS.

A foreign corporation doing business in Texas through localage'ntll, and being, under Gen. Laws Tex. 1887, p. 132, subject to suit by service on the local agents, iB not a nOJ;l-resident, and entitled to remove a cause to the federal courts, under Aot Cong. Aug. 13, 1888, 3 2, 'prOViding for removal by non-resident dllielldanta.

,

On Motion to 'Remand to State Court. Ho'U8ton Bro8., for plaintiff. Ogden & .[ohnacrn, for defendant. MAXEY, J. This suit was originally instituted by the plaintiff against the defendant in the district courtofNueces county, Tex. It involves the title to several tracts of llind"and the amount in controversy is in excel:lS of The defendant filed a petition and bond to remove the suit to this court, January 25, 1889, and on the succeeding day an order of removal was duly entered by the district court, and the record was here filed on April 24th following. A motion to remand is made by the plaintiff, the principal grounds of which are: "(1) It appears from petition of defendant for removal, and the pleadings in the district court of Nueces county, the defendant is a corporation, resident and doing business in the state of Texas. (2) Said petition does not allege or show that the defendant is a non-resident of the state of 'rexas." , .The motion is accompanied by a plea in abatement, but, to obviate the necessity oian inquiry into the facts affecting the question at issue, the partieS have filed the following stipulation: "It is agreed that the court, in considering and passing upon th,e motion to remand and plea to the j urisdictlon, shall consider these agreed facts, The defendant is a cOl'porationchartered under the laws of the kingdom of Great Britain; that said defendant has complied with the statutes of Texas by filing its charter the secretary of state of the state of Texas, and taken out a permit to do business in Texas; that said defendant does do business in Texas, w1Jereit has agents for the and where it claIms to own property and land." ' The law ofthe state, under which was granted to defendant the permit to do business within the state, went into effect after the removal proceedings were filed in this court, and it is not regarded as having application to this suit. The statute of Texas fixing the venue of suits against corporations provides: "That foreign, private, or public corporations, joint-stock companies or associations, not incorporated by the laws of this state, and doing business within this state, may be sued in any court within this state haVing jurisdiction over the Subject-matter, in any county where the cause of action or a part thereof accrued, orin any county where such company may have an agency or representati ve, or in the county in Which the principal office of snch company may be situated; or, when the defendant corporation has 110 agent or repra-sentative in the state, then in the county where the plaintiffs, or either of them. reside." Gen. Laws 'rex. 1887. p.132. v.41F.no.o-15

"In any a foreign, private, orpublic corporation, company or associ!Ltion,.o,r acting or association, citation or other process may beserved on the'president, vice-president, secretary, or treasurer, or general manager, or upon any local agElnt within the state, of such corpora-. tion, joint-sto,*coIl}parij or association, or acting corporation or associa-' twn." Gen. Laws 1885, p. 79.

As to the

of l.3erving process <:>n

it is provided that:

From the removal, the stipulation of counsel, and the statutes of the state regulating the venue of suits against, foreign corporations, and the mode of service in such cases, it appears: (1) That defendant is a foreign corporation, by the laws of Great Britain. (2) It transacts its business in this state, where it claims to own propbusiness is. transacted in the state through the erty and lands. (3). medium of resident agents. (4) It is amenable to suit under the laws of Texas, and citation or other process'may be served upon any of its loca1agElnts within the state. . . . The second ground of the moti'onto remand presents the objection that, inthe absence of averment c;>f ric;>n-residence on the part of the defendant, the petition fails to disclose a cS;1,lse removable under the act of congress. A. determination of that question is not rep;arded as absolutely essential in this case, but it may be said that the objection has been as fatal to' the right of removal in Walker v. O'Neill,38 Fed. Rep. 374. See, also, Jiree1l1a1lv·. Butler, 39, Fed. Rep. L The petition for removal contai ns·t4e general averment of diverse citizenship, and alleges th!lt defendant is "a corporation incorporated and existing under the laws and authority of the kingdom of Great Britain," but is silent as 'to the Considered in connection with the agreement of counsel, the first ground of .the motion suggests the. material questions for' determination: Is, the defendant a resident of this state? and, if a resident, is it entitled to remove the suit under the act of congress? ,As to the first point· the circuit court of the wesf;tJrn district of Penns,lvania, Judges McKENNAN and ACHEsON concurring, held thll;t a railroitd company; incorporated 'under the Iaws of New York, was an inhabRiddle v. Railroad Co., 39 . itant of the western district of Fed. Rep. 290. My views of that question, growing out of facts quite similarto those in this case, are fully stated in the case of Zambrino v. Rail'UJaY Co., 38 Fed. Rep. 449 et seq'., and it would be an idle ceremony to repeat the argument upon which the' conclusion there reached was predicated. As a result of the view taken in the ZamlJrirw (Jase, I hold, under the facts of this case, tbe defendant to be a resident of this state, within themeaniog of the law; and the question recurs, is the/luit re:rUpvable by a defendant under the present1.3tatute?' That, un.the act of March 3, 187 the removable, there is no doubt; as d:hat .act, in "a between citizens of a state and foreign states, Qitizens or subjects, n 'permitted either party, without reference to the question of residence, to remove the suit. 18 St. at Large, 470, 471. The law, howe\'er, is now different, and it will be seen that the right of

,removal, in, of thi", k\nd, is li!;ll1ted toa dj3fEn1l,dant being a non,. resident;of state., Right of removllJ of this suit is claimed onth!, ground of diverse ;citizenship,-:-the being, a citizen of Texas, and the defendant, in legal contemplation, a citizen of Great 13rij;ain; and the second clause of section 2 of the act of Aug\lst 13, 1888, is' in,voked as authority for the exercise of the right. That clause provides that "any other suit of a civil nature, ,at law or in equity, of whicl1 tpe circuit courts of the United, States are given jurisdiction by the preceding section, and which are now pending, or which· mayhe;reaJter be brought, in any state court, may be removed.into the circuit court of .the United States for the proper district, by the defendant or defEmdants therein, being non-residents of that state." 25 St. at Large, 434. Two limitationl\! are attached, by the clause quoted, to the right ofremoyal: (1) Thesuits must bethose of a civil nature, etc., of which the circuit courts are given original jurisdiction by the preceding section of the /lct. (2) The right is expressly limited to the non-resident defendant. Without here reproducing the first (preceding) section of the act, it is only necessary to say that a suit between a citizen of a state and an alien is one of which by that section the circuit court has original jurisdiction, (Zambrino v. Railway Co., supra,) subject in such cases to the right of the defendant to insist upon or waive his privilege of being sued in the district of which he is an inhabitant. Meyer v. Herrera, ante, 65, (decided at present termj) Cooley v. McArthur, 35 Fed..Rep. 373. But, as to the second limitation, it has been uniformly held, as far as the court is advised, that the of the defendant is a'prerequisite to the right of removal. Gavin v. Vance, 33 Fed. Rep. 87 , 88; Cudahy v. McGeoch, 37 Fed. Rep. 2; Walker v. O'NeiU, supraj Freeman v. But4r, supra. Many other authorities might be cited, but it is deemed useless to multiply them, in view of the plain and unambiguous language of the statute. Walker v. O'NeiU was a suit between a citizen and an alien, (natural person,) and in the discussion of the questionJ,u,dge BARR says: construction deprives an alien of the right to hay!! a removal of his suit from, a state court into a federal court at all, except. perhaps. in the instance stated in Cooley v. McArthur. 35 Fed. Rep. 372; because,by the provisions of the Ilrst section, no original suit could be brought in the federal courts against an alien ·in any other district than that whereof he is an inhabitant;' and an alien being an inhabitant of the district, and thel'efore not a non-resident, is depriVed, by the language of the second section, from-the right of removal from the state court of the state of which he is a resident." 38 Fed. Rep. 376. The distinguishing feature between Walker v. O'NeiU and the case before the court is that in the former the suit was between two individuals, -natural persons,-and here the defendant is a corporation,-an· artificial person; and it may be said that the existing diversity of opinion between the trial courts has 'grown out of the difficulty of locating the· residence or habitation of these artificial persons. One line of deeisions C,Onfines the corporate residence to the state of the creation of the

298

I'EDERAL REPORTEB,

vol. 41.

corporation; the other gives the corporation a residepce in a state where it has agents who transact its corporate business there, and where, under thelll.ws of that state, it may beaued, and service of process had upon such resident Being impressed with the correctness of the latter view, and holding the defendant to be a resident of this state, it necessarily follows that it is precluded from removing the suit under the act of August 13,1888. To hold otherwise would"deprive the alien natural person who is a resident of the right to remove, and confer such right alone upon an'aliellcorporation similarly situated. The statute is equally applicable to both classes of persons, and, without inquiring into the status of defendant touching its residence elsewhere,-nothing appearing in respect of it in the petition for removal,-'-the court is of opinion that,owing to the fact of the defendant's residence being within this state, it is not entitled to remove the suit. The motion will be sustained, and the cause remanded to the district court of Nueces county.

STATE OF TEXAS 11. DAY LAND

&

CATTLE CO.

(Oireutt 001/,rt, W. D.TBXa8. February 5, 1890.)
RBMOVAL Oll' CAUSES-FEDBRAL QUUSTION-GRAZING PUBLIC LANDS-CRllIflNAL PROSBOUTION. ,. ,

Gen. Laws Tex. 1884, c. 83, § 6, provides that it shall be unlawful for any person, firm, or cory,oration to herd or oatUe on any vacant publio or school lands, , unless,leased from proper authority. Section'j provides that the viotation of the P,reCeding's,ection hall oonstitu,t,e,a ml,sdem,eanor, and sha,ll be PuniShed, by a fixed ,fine. SectiQu8 fUf1jher that tue owner of any cattle so herded or grazed shall be Hable in a certain sum l to be recovered in a civil action, without affecting the criminal pr6lJeedings proVided iIi the foregoing sections. In an action by the it was alleged in the petition that defendlHlt unlawfully iuld knowingly fenced in a certa1Ii tract of the pu blic and school lands of the state, and unlawfully used the same for grazing and herding purposes, without any lease; that by reason of this unlawfUl inclosure of land, and unlawful herding and grazing on saidllll1dl'defendantwss liable to plaintiff in the amount fixed. by the statute. 8S penalty. , HeW that, according,w the allegations of the petition, the action was a oriminal aotion, under section 7 of the act, and, as suoh, was not subject to rllmoval to the oircuit oourt. , i
8"

,West &: McGou'1l.. Rnd Mr. F'i8her, for defendant.
attorney,

8

I.H. RobertBan,Dist. Atty., andJ. ,S. .Hogg, Atty. Gen., for plaintiff.

On motion to remand.

state of Texas"by its. f\.ttorney general and district suit in the district court of Travis county, Tex., the following are the subst!J.ntjal allegations of the petition: ", "That heretofore, to-wit, on or abOut the first day of September, 1885, the unlawfully and knOWingly made, constructed, and built a certain wire fence, consisting of posts at cou,venient intervals, with barbed wire stretched around said posts, upon,an,d,inlillosing 203,000 acres, more or less, of the pUblic domain of the state of Texas, situated in Greer county, Texas;