Morton v. Mutual Life Insurance , 105 Mass. 141 ( 1870 )

Chapman, C. J.

The defendant is a corporation created and doing business in the state of New York; and as such it must be regarded as a citizen of that state, -within the judiciary act of the United States. Louisville, Cincinnati & Charleston Railroad Co. v. Letson, 2 How. 497. Marshall v. Baltimore & Ohio Railroad Co. 16 How. 314. Covington Drawbridge Co. v. Shepherd, 20 How. 227. Cowles v. Mercer County, 7 Wallace, 121. When sued in a state court, it may, as such citizen of another state, remove the cause to the circuit court of the United States, if there is nothing in the legislation of the state to prevent it. Hobbs v. Manhattan Insurance Co. 56 Maine, 417.

It is contended by the plaintiff in this case, that the provisions of the Gen. Sts. c. 58, §§ 68, 69, were intended by the legislature to compel foreign insurance companies to submit to the jurisdiction of the courts of this state, and to prohibit them from removing a cause from the courts of the state to those of the United States. The question thus presented is one of interpretation merely. We must take it for granted that all that was intended is expressed; and we cannot derive any essential aid from considerations of what legislative policy would be likely to be in respect to the matter. By § 68, foreign insurance companies are required to appoint, in writing, a citizen resident in the state, a general agent, upon whom all lawful processes against the company may be served, with like effect as if the company existed in this state; and the writing is to stipulate for the legal force and validity of the service. Service on this agent is to be deemed legal service upon the principal. Section 69 provides that the agent shall give bond to the treasurer of the Commonwealth, with condition that he will accept service of all lawful process against the company.

But all this relates to the service of process, and contains no restriction upon the company after it comes into court. The clause providing that the service “ shall be of the same legal force and effect as if served on said company ” does not imply a restriction upon the right to remove the cause, as the plaintiff contends it does; for the right of removal cannot be affected by the mere fact that the process has been perfectly served. It would not be safe to attribute to the legislature an intent not expressed either directly or indirectly. In the case of Hobbs v. Manhattan Insurance Co. 56 Maine, 417, the supreme court of Maine gave a similar construction to á similar statute of that state.

The question whether a state legislature would have power to impose such a restriction upon a foreign corporation does not arise.

Petition granted.