FEDERA;L REPORTER, . , .
vol. 46. .
if they do not approve, it cannot. No issue is defined for them to try, or guide laid down for them to follow, in determining whether they shall grant or refuse their approval. All questions as to what shall be taken into consideration are left wholly to them. They render no judgment, but merely declare their own approval or disapproval of further proceedings. The state, in the exercise of its right of eminent domain, has pro"ided this check in favor of land-owners against taking land by railroads, and nothing else can be substituted for it. This court is to proceed with suits removJd here as if they had been brought here by original process. Rev. St. U. S. § 639. This petition to the railroad commissioners could not be brought here, and cannot be proceeded with here. Issues of fact here, except in equity or admiralty, are to be tried by jury, unless a jury is waived. Rev. St. §§ 648,649. The approval of a jury, or of the court on waiver of a jury, would not be the approval of the railroad commissioners, and neither could decide whether the railroad commissioners approve or not. The question of their approval does not seem to be "a dispute or controversy properly within the jurisdiction of" this .court. Upshur Co. v. Rich, 135 U. S. 467, 10 Sup. Ct. Rep. 651. NOlle of the cases cited in behalf of the removing parties was confined to such a narrow and merely preliminary question as this. In all of them a final question of pecuniary compensation was to be tried, upon which judgment could be rendered. Boom Co. v. Patterson, 98 U. S. 403; Pacific Rnilroad Removal Oases, 115 U. S. 2, 5 Sup. Ct. Rep. 1113; Searl v. School-Dist., 124 U. S. 197,8 Sup. Ct. Rep. 460; Railway Co. v. Jones, 29 Fed. Rep. 193; Kansas City, etc., R. Co. v. Interstate Lumber Co., 37 Fed. Rep. 3. For this reason this proceeding, as now considered, cannot properly be retained here, but must be remanded.
et al. v.
(CirCUit Court, E. D. Missouri, E. D.
FEDERAL COURTS-RESIDENCE OF CORPORATIONS.
June 20, 1891.)
A corporation cannot be a resident, within the meaning of Act Congo 188'l, of a state other than that in which it was incorporated.
Paul Bakewell, for plaintiff'. Silas B. Jones, for defendant.
THAYER, J. Complainant, a citizen of Indiana, sues the defendant, a Connecticut corporation, for infringement of letters patent. The defendant maintains an office and agency in this district for the transaction of business, and service has been had according to state laws. On appearance day defendant ?btained leave to enter a special appearance for
GLENN V. M'ALLISTER'S EX'Ra.
the purpose of moving to quash the service and contesting complainant's right to sue it in this district. The question raised il:l not a new one in this circuit. Justice BREWER decided it in Booth v. Engine, etc., C,o., 40 Fed. Rep. 1. He held, in effect, that a corporation cannot be a resident, within the meaning of the judiciary act of 1887, of a state other than that in which it was incorporated. The same conclusion harl prior thereto been reached after careful consideration by Judge SHIRAS in Fales v. Railway Co., 32 Fed. Rep. 673. I understand the doctrine to be settled, for the present, at least, in this circuit, that a corporation can only be a resident and inhabitant of the state which creates it, and that it cannot change its residence or inhabitance by doing business or maintaining an office and agency in a foreign state, although it may be found there for the purpose of the service of process. And the same doctrine is adhered to in other circuits. National Typographic Co. v. New York Typographic Co., 44 Fed. Rep. 711, and citations. See, also, v. Murray, 43 Fed. Rep. 695; Bensinger S. A. Cash Register Co. v. National Cash Register Co., 42 Fed. Rep. 81, and Baughman v. Water- WOl'ks Co., 46 Fed. Rep. 4. I am aware tnat the question has been decided differently in other circuits, (Riddle v. Railroad Co., 39 Fed. Rep. 290; Zambl'ino v. Railmad Co., 38 Fed. Rep. 449; Miller v. J}Iining Co., 45 FecI. Rep. 345;) but I must adhere to the rule that has thus far been followed in this circuit. Undoubtedly, the present case is one in which the defendant might, by a general appearance, have waived its right to be sued in Connecticut, but it has not done so. Let the motion be sustained.
(Circuit Court, W. D. Virginia.
February 17, 1891.)