(Oircuit Oourt, D. Kansas. May 16, 1890.)
REMOVAL OF CAUSES-CITIZENSHIP-FOREIGN CORPORATION DEFENDANT.
A corporation organized under the laws of a foreign country. and having its chief ofllce there, does not become a resident of a state of the United States by doing business and having an office therein. so 88 to defeat its right to remove a case against it from the state to the federal court, under the act of 1888, (25 St. U. S. 434,). § 2, providing that an action brought in a state court may be removed to the circuit court of the United States "by the defendant or defendants therein, beinl\" non-residents of that state. "
'!:hecourt having jurisdiction of the subject-matter and the parties, the right of a defendant to object to being sued in a district of which he is not an inhabitant 1& personal to himself, and he may insist upon or waive that right 88 be chooses.
John E. He88in, W. P. Douthitt, and RanTcin Mason, for plaintiff. Johnson, Martin <to Keiler and T. S. Brown, for defendant.
FOSTER, J. This case was removed to this court from the district court of Riley county, on the application of the defendant, on the ground that it is a foreign corporation and non-resident of the state; and the plaintiff, who is aeitizen of the state of Kansas, now moves for an order remanding the same to the state court. The ground on which the motion is made is that the defendant is a resident of this state, and, therefore, not entitled to remove the cause. The more formal manner of proceeding under a plea in abatement to the jurisdiction of the court is waived, and the mattersubmitterl onmotion and affidavits. The facts as to the organization and business of the defendant company are briefly these: It is a corporation organized under the laws of Great Britain and Ireland, with its head-quarters or chief office in London. It is now engaged in loaning .money on real and personal property, in Kansas, with its place of business and office at Manhattan, and under charge of Stewart J. Hogg, a subject of Great Britain. It has no other place of business in this country. The first section of the act of 1888 (25 St. U. S. 434) confers jurisdiction on this court, as follows:
Motion to Remand to State Court.
. "That tlle 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 common law or in equity, where the matter in dispute exceeds, exclusive of interest and costs, the sum or value of two thousand dollars, ... ... ... in which there shall be ... ... ... a controversy between citizens of a state . and foreign states, citizens. or subjects. ... lie lie And no civil suit shall be brought before either of said courts [circuit or district] 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 founded only on the fact that the action is bl;jtween citizens of different states, suits shall be brought only in the district of the residence of either the plaintiff or the defendant."
In section 2 the second clause of the removal act reads as follows:
. "Any other suit ofa civil nature, at law or in equity, of which the circuit courts of the United States are given jurisdiction by the preceding section,
llnd which are now pending, or which may hereafter be brought, in any state conrt, may 'oe' removed: into the.' 'Cit\mit court of the United Stlites for the proper district by the defendant or defendants therein, being non-residents of that state."
Under this provision the right of removal from the state court has two First, itmristcbe a suit of which the circuit courts are givenjurisdiction by the first seotion; 8econd, the right of removal is limiWd to the defendant who is anon-resident of the state. This is an action of wh:ich the circuit courts :are given jurisdiction, as it is Ii cona Citizen of Kansas and a Citizen or subject of a foreign state.. ' It has been judicially determined that for the purposes of jurisdicti6q;a,,'foreign corporation of the state under which it has , its· corporate e:ltistenee.: Railroad <». v. Ut8on, 2 How. 497; Terry v. Irumrance 00., 3 Dill. 408. This being a suit between a citizen and an alien, and not between citizens of. different states, the plaintiff insists, under:1:he;act of 1888, that it could not have been brought originally in this court unless the defendant is anitihabitant; hi other words, that this court could have no original jurisdiction of this case unless the defendant J js,apinhal),itantof this district;, and, if it is an inhabitant, it cannot be .t a and hence is not entitled to remove the ca.se. This argun1eut:.W;ould be quite conclusive if the inhibition against bringing suit district was jurisdictional; but it doos not ,appear to be :so, in the early ,case of ,YubaCh. v. Mining Co., B2Fed. Rep. 183, ,.the CQurt seems to, favor that view. The clause giving jurisdiction preclause fixing the Bitu80f the suit, and is general in its terms, of the locality where the suit shall be brought, and the . reIllo,ral.clause says, "any other suit· * .. *of ·which the circuit courts:oHhe United States are given jurisdiction by the preceding sectionl" n9t. the circuit court· ofa.par.ticular district. . The court having of the subject-matter and 'the parties, the right to object to :being,sued in any other district is,personal to the defendant, and he may , object !or :waive it as he chooses. ,zambrino v· Railroad 00., 38 Fed. Rep. 450; ,OQqle1fi v. McArthwl',35 Fed. Rep. 372; Meyer v; Herrera, 41 Fed. Rep. 65; ExparteScholienberger, 96 U. S. 369.. The matter of residence or inhabitancy is largely a matter of intention.. A person may live but a ciayin locality, and be ,an inhabitant. Qrresident; while he might live there many days, and become neither., The intentions of parties are not always apparent to'iheworld, but the party himself may concede"inhabitancy by sim'ply being' found in the, district. ,'fheqtiestion, then, tq,be determined on this U'lOtion is whether the is a resident or a of this state, within the meanipg.of.,t.l;l,e removal act. The useoLthe word "non-resident" in the act of congress is somewhat perplexing. If it means non-citizenship of the state, the'question here involved has been repeatedly adjudicated, for a corporatloii for judicial purposes isc(mclusively presumed to be It citizen of the state or country under the lawl:S of which itis ' created. '" Railroad . Co. v. Koonhl, 104, u. S. 12. ' In this case Mr. ChiefJustice WAITE, speak,ing for the· oourt, U8e8the following language: ., "
PURCELL, ..,. BRITISH. LAND &: MORTGAGB CO·
..A corporation. therefore, <1reated by and organized under the laws of a particuJarstate. and havIng its principal office there, is, under the constItution and Jaws, for the purpose of suing and being sued, a citizen of that state. possessIng all the rights and ha.ving all the powers its chartllr confers. It cannot migrate nor chang!lIts residenC!l wIthout the consent, express or implied, of its state, but It may transact business wherever its charter allows, unless prohibited by local laws. Such has been for a long time the settled doctrine of this court. 'It must dwell in the place of its creation, and cannot migrate to another sovereignty. '" Steam-Ship 00. v. Tu.gmnn, 106U. S. 118,1 Sup. Ct. Rep. 58; Railroad Co. v. Letwn, supra; Railroad ('.a. v. Harris, 12 Wall. 65; Terryv.lnsurance 00., sttpra. The cases on this subject are legion, but it is too familiar to require further citations. It ie very doubtful whether the term "nonresident" is used in the removal act in auy different sense than that of "non-citizenship." In that sense it would be in harmony with antecedent legislation on this subject. In that sense the single compound word "non-resident" would include the right of removal to defendants, whether citizens of another state or citizens or subjects of a foreign state. It has been repeatedly decided that the words "citizen" and "resident" are not synonymous terms. Parker v. Orerman, 18 How. 137. So, a citizen of a state may be a non-resident of the state; but no one would seriollsly contend that a non-resident citizen of a state, when sued in the courts of his own state by a citizen of another state for over $2,000, could remove the case to the United States court on the ground of diverse citizenship. And yet a literal and restricted following of the term "non-resident" must lead to such a result; for, certainly, the case is one of which the circuit courts of the United States jurisdiction, and the defenclant is a non-resident of the st\\te. The use of. the terms "inhabitant" in the first, an4 "non-resident" in the second, section of the act of 1888, are exceedingly perplexing, as applied to foreign corporations; and the more I study on it the more I am convinced that there is but one rational solution of this question, and that is to return to the old, fixed landmarks, and apply the rule enunciated by the authorities before cited. A corporationis,a'citizen or subject of the etate under whoselaws it is created, and it does not become a resident of another state by doing business therein, 80 as to deprive it of the right to remove its case from the state to the federal .court under the act of 1888. Fales v. Railway Co., 32 Fed. Rep. 675. I reach this conclusion after full consideration of the Ghse of Zambrino, supra. In that Case the railway company wasa citizen of Texas, with its principal office in the eastern district of that state, and it was sued in the western district, where it also operated its road. The only qnestion was whether it was an inhabitant of the western district so as to make it liable to be sued in that district. Judge MAXEY held it was; and again, inS<;oU v. Cattle 00.,41 Fed. Rep. 225, the same court applied the rule to a foreign corporation doing business in Texas. In Riddle v. Railroad Q:I·· 89 Fed. Rep. 290, the circuit court,of Pennsylvania followed the rule laid down in the 24mbrino Case. With the question involved in 1 am not nowdealin.g. It is, not impl'oba,ble that a citizen
FEDERAL RE:PORTE'R t
of bne state or country, whether an individual or a corporation, may at the same time be an inhabitant of another state or country, and, as such, subject to be sued in the federal courts.. What I do hold in this case is simply this: that it was not the purpose of the removal act to make the question of residency, if the defendant corporation could acquire a resi· dence here, override that of citizenship. If so, it is inconsistent with all former legislation and the constitution itself, and leads to the absurdity of allowing a citizen temporarily non-resident, and sued in the courts of his own state by a citizen of another· state, to remove the 'case to the federal court, which he could not do if in his own state. Mills v. Newell, 41 Fed. Rep. 529. The motion to·remand this case to the state court must be overruled.
NEW YORK & N. E. R. Co. v. WOODRUFF et al., Commissioners.
(Circuit Oourt, D. Oonneclw\l-t.
May 22, 1&90.)
CIRCUIT COURTS-JURISDICTION-QUESTION PENDING IN SUPREME COuBT.
After mnnaamu8 proceedings had been commenced in a state court, defendant .filed a petition for removal to the circuit court of the United States on the ground that it was a civil suit arising under the constitution of the, United States. The petition was deniea, and the judgment of the lower court was affirmed by the high. est state court. A writ of error was ailowed by the supreme court of the United States. After the decision of the state court, a bill was filed in .the circuit court of the United States to enjoin the enforcement of the peremptory mananmu8 issued by the statl;l court. H,ela, upon demurrel' to the bill, that, since thl;l same questions were before the supreme court as were raised by the bill in the circuit court, a decision bvthe latter was unnecessary, the demurrer 'was overruled pro forma.
In Equity. Demurrer to bill. Edward D. Rohbins and S. E. Baldwin, for plaintiff. Wm. F. Henney and H. C. Robinson, for defendants. SHIPMAN, J. This isa demurrer to a bill in equity of thaNew York
& New England Railroad Company, a Connecticut corporation, against
the members of the commission appointed by the general assembly of said state in the matter of the grade crossing at Asylum street, in the city of Hartford. The bill prays for an injullction to prevent the defendants from taking measures to enforce a peremptory mandamus against said company, for which it was anticipated that application would be made to the superior court for the county of Harttord, and which has since been granted by said court. After the application fol" mandamus had been brought in said state court against the railroad company , and within the time prescribed by the statute of March 3, 1887, said com" pany filed ill said court its petition and bond for a removal of said cause to this court, upon the ground that it was a suit at law of a civil nature, arising under the constitution of the United States. No question of factarisitlg upon said petition, but the questions being exclusively of law; which were apparent upon the recorddhe superior