Springs v. . R. R.

The court below properly refused the motion of the defendant to dismiss this action on account of its attempted removal into the Circuit Court of the United States. In no event could the court below have dismissed the action, even if it had been properly removed. In the latter event it could only have stayed further proceedings, leaving the case upon the docket to await future developments. Even if the State courts, Superior and Supreme, were to recognize the removal of an action, that would not necessarily end the question, as the right of removal is in its ultimate determination essentially a Federal question. The Circuit Court has the (192) power to remand any case, if in its opinion, it is improperly removed; and such a disclaimer of jurisdiction would at once revest the State courts with all their original jurisdiction, or rather it would conclusively show that it had not been divested. We use the term "improperly" removed merely for convenience, as indicating those cases where the petition to remove is improperly allowed. The removal takes place, if at all, by operation of law eo instanti upon a compliance with the Federal statutes.

Aside from the impropriety of this motion to dismiss, the petition for removal as presented to the court below was fatally defective, inasmuch as its only allegation of nonresidence was that the defendant was "a citizen of the State of Virginia." It failed to allege that the defendant was a corporation created under the laws of the State of Virginia, and that it was a nonresident of the State of North Carolina. The necessity for the allegation that the defendant was a nonresident of this State has been fully discussed and determined in Thompson v. R. R., ante, 140. That of itself would settle this case; but as we are anxious to aid as far as we can in the final determination of all questions relating to the removal of causes, we will proceed to consider this question as to the jurisdictional necessity for the allegation in the petition that the defendant is a corporation existing under the laws of another State.

That such an allegation is necessary, is clearly settled by the Federal decisions on this subject. In Insurance Co. v. French, 18 Howard, 404, 405, the Court says: "This is a writ of error to the Circuit Court of the United States for the District of Indiana. . . . In the declaration the plaintiffs are averred to be citizens of Ohio, and they `complain of the LaFayette Insurance Company, a citizen of the State of Indiana.' This averment is not sufficient to show jurisdiction. It does not appear from it that the LaFayette Insurance Company is a corporation; or, if it be such, by the law of what State it was (193) created. The averment that the company is a citizen of the State of Indiana can have no sensible meaning attached to it. This Court does not hold that either a voluntary association of persons or an association into a body politic, created by law, is a citizen of a State, within the meaning of the Constitution. And, therefore, if the defective averment in the declaration had not been otherwise supplied (by the pleadings), the suit must have been dismissed."

In Muller v. Dows, 94 U.S. 444, 445, the Court says: "The decree made below is assailed here for several reasons. The first is that the court had no jurisdiction of the suit in consequence of the want of proper and necessary citizenship of the parties. This objection was not taken in the Circuit Court, but it is of such a nature that, if well founded, it must be regarded as fatal to the decree. . . . The two original defendants, the Chicago and Southwestern Railway Company and the Chicago, Rock Island and Pacific Railway Company, are averred to be citizens of the State of Iowa. Were this all that the pleadings exhibit of the citizenship of the parties, it would not be enough to give the Circuit Court jurisdiction of the case." The Court here quotes from Insurance Co. v. French, supra, and continues as follows: "A corporation of itself can be a citizen of no State in the sense in which the word `citizen' is used in the Constitution of the United States. A suit may be brought in the Federal courts by or against a corporation, but in such a case it is regarded as a suit brought by or against the stockholders of the corporation; and, for the purposes of jurisdiction, it is conclusively presumed that all the stockholders are citizens of the State which, by its laws, created the corporation. It is therefore necessary that it be made to appear that the artificial being was brought into existence by the law of some State other than that of which the adverse party is a citizen." (194)

In Pennsylvania v. Quicksilver Co., 10 Wall., 553, 556, the Court says: "And the question in this case is whether it is sufficiently disclosed in the declaration that the suit is brought against a citizen of California. And this turns upon another question, and that is whether the averment there imports that the defendant is a corporation created by the laws of that State; for, unless it is, it does not partake of the character of a citizen within the meaning of the cases on this subject. The Court is of opinion that this averment is insufficient to establish that the defendant is a California corporation. It may mean that the defendant is a corporation doing business in that State by its agent; but not that it has been incorporated by the laws of the State. It would have been very easy to have made the fact clear by averment, and, being a jurisdictional fact, it should not have been left in doubt."

After a careful examination, we fail to find any case in which the above cases have been overruled, modified or doubted. In Drawbridge Co. v.Shepherd, 20 How., 227, the Court, after drawing the somewhat acute distinction between the allegations that "a corporation is a citizen" and "a corporation are citizens" of a State, expressly reaffirms Insurance Co.v. French.

In Frisbie v. R. R., 57 Fed., 1, where the petition alleged (in words almost exactly similar to the case at bar) that the petitioner "was at the time of the bringing of this suit and still is a citizen of the State of Virginia," the Court said: "An averment that a corporation is a citizen of a particular State is insufficient. A corporation is not a citizen of a State within the meaning of the Constitution. The averment should be that it was a corporation created by the laws of a particular State."

In Lonergan v. R. R., 55 Fed., 550, it was held that (quoting (195) the syllabus) "in showing diverse citizenship for the purpose of sustaining Federal jurisdiction, it is not sufficient to merely allege that a corporation is a citizen of a given State, for corporations are not strictly citizens. The averment must be to the effect that the corporation was created under the laws of the State named."

In view of the uniform trend of Federal decisions, it is useless to cite text-books upon a Federal question.

The absolute necessity for an averment that the petitioner is a corporation created under the laws of a certain State clearly appears from the consideration of the grounds upon which the Supreme Court of the United States bases its jurisdiction, and the method of reasoning by which it has arrived at its legal conclusions. The Constitution in defining the extent of the jurisdiction of the courts of the United States makes no allusion whatever to corporations. Section 2 of article III, which is the sole source of Federal jurisdiction, is as follows: "The judicial power shall extend to all cases in law and equity arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority; to all cases affecting ambassadors, other public ministers and consuls; to all cases of admiralty and maritime jurisdiction; to controversies to which the United States shall be a party; to controversies between two or more States; between a State and citizens of another State;between citizens of different States; between citizens of the same State claiming lands under grants of different States, and between a State or the citizens thereof and foreign States, citizens or subjects." The first time that the question of Federal jurisdiction in cases of foreign corporations came before the Supreme Court seems to have been in the cases of Insurance Co.v. Boardman, 5 Cranch, 57, and Bank v. Deveaux, ibid., 61. These cases were heard and decided together at February Term, (196) 1809, the decision in the former being based upon that in the latter. The Court held that "the right of a corporation to litigate in the courts of the United States depended upon the character (as to citizenship) of the members which compose the body corporate, and that a body corporate as such can not be a citizen within the meaning of the Constitution." Boardman's case, supra. It proceeds upon the theory that in such cases it is not the corporation which is the real party, but that "the controversy is substantially between aliens, suing by a corporate name, and a citizen, or between citizens of one State, suing by a corporate name, and those of another State." Bank v. Deveaux, supra, page 91. The result of this ruling was that where it did not appear on the record that all the stockholders were citizens of a different State from the adverse parties, or the contrary was shown, in spite of the averment, the jurisdiction did not attach. This remained the settled ruling of the Supreme Court until overruled by R. R. v. Letson, 2 Howard, 497, decided at January Term, 1844. The opinion in this case is remarkable not only from its radical departure from long-standing precedents, but also from its great influence upon future decisions, as well as certain allusions to Chief Justice Marshall, which we are compelled to say are rather at variance with our estimate of his character. That case sustained the jurisdiction upon two grounds. It first holds, perhaps rather inferentially, that all the stockholders of a corporation will be conclusively presumed to be citizens of the State under whose laws the corporation was created. This is the doctrine that has since been uniformly followed, and is now too firmly settled to admit of controversy.

The Court also said, on page 557: "But there is a broader ground upon which we desire to be understood, upon which we altogether rest our present judgment, although it might be maintained upon the narrower ground already suggested. It is, that a corporation created by and doing business in a particular State is to be (197) deemed to all intents and purposes as a person, although an artificial person, an inhabitant of the same State for the purposes of its incorporation, capable of being treated as a citizen of that State, as much as a natural person. Like a citizen, it makes contracts, and though in regard to what it may do in some particulars it differs from a natural person, and in this especially, the manner in which it can sue and be sued, it is substantially, within the meaning of the law, a citizen of the State which created it, and where its business is done, for all the purposes of suing and being sued." This doctrine appears to us to be the more tenable of the two, but seems to have been subsequently abandoned. Both, however, lead to the same result. The result of that and subsequent decisions is to substitute in place of the citizenship of the stockholders, which can not now be inquired into, the averment of the particular State under whose laws the corporation is created and existing, as the essential jurisdictional fact, which must affirmatively appear either in the petition or the pleadings. Being jurisdictional and not modal in its nature, the want of its proper averment leaves the cause completely within the jurisdiction of the State courts.

But it is contended that the amendment to the petition, subsequently allowed by the Circuit Court of the United States, cured this defect. We do not think so. The Superior Court could pass only on what was before it; and if the record and petition, as presented to it, did not make out a proper case for removal, it was its duty to retain the cause and proceed therein according to law. If the Superior Court had allowed the petition to be amended, or a new petition had been filed within the time prescribed by law, a different question would be presented; but neither of these things was done. After the Superior Court (198) had acted upon the petition in due course of procedure, the question of removal was then settled, one way or the other; and no subsequent amendment could affect it. Certainly, an amendment made in the Circuit Court, after the cause had been carried to a final judgment in the Superior Court, could not invalidate all that had been lawfully done. That a substantial amendment to a jurisdictional averment can not be made in the Circuit Court appears to be well settled by the Federal decisions. In other words, an amendment can not be allowed in the Circuit Court so as to show jurisdiction where it does not already affirmatively appear. If it were permitted, it would result in the intolerable confusion so clearly pointed out by Sawyer, J., in MacNaughtonv. R. R., 19 Fed., 883, of having two distinct cases between the same parties and involving the same subject-matter, carried on simultaneously in two independent courts, and resulting in distinct and separate judgments. The method of procedure, with its underlying principles, is so clearly stated by Waite, C. J., in R. R. v. Dunn, 122 U.S. 513, 516, that we quote from it at some length. The Court says: "The theory on which it rests is that the record closes, so far as the question of removal is concerned, when the petition for removal is filed and the necessary security furnished. It presents, then, to the State a pure question of law, and that is whether, admitting the facts stated in the petition for removal to be true, it appears on the face of the record, which includes the petition and the pleadings and proceedings down to that time, that the petitioner is entitled to a removal of the suit. That question the State court has a right to decide for itself, and if it errs in keeping the case, and the highest court of the State affirms its decision, this Court has jurisdiction to correct the error, considering, for that purpose, only the part of the record which ends with the petition for removal. But even though the State court should refuse to stop proceedings, the petitioning party may enter a copy of the record of that court, as it stood on the filing of his (199) petition, in the Circuit Court, and have the suit docketed there. If the Circuit Court errs in taking jurisdiction, the other side may bring the decision here for review, after final judgment or decree, if the value of the matter in dispute is sufficient in amount. In that case, as in the writ of error to that State court, the question will be decided on the face of the part of the record of the State court which ends with the petition for removal, for the Circuit Court can no more take a case until its jurisdiction is shown by the record than the State court can be required to let it go until the record shows that its jurisdiction has been lost. The questions in the two courts will be identical, and will depend on the same record, namely, that in the State court ending with the petition for removal. The record remaining in the State court will be the original, that in the Circuit Court an exact copy."

In Cameron v. Hodges, 127 U.S. 322, 326, Miller, J., speaking for the Court says: "In this instance there has been a removal from a tribunal of a State into a Circuit Court of the United States, and there is no precedent known to us which authorizes an amendment to be made, even in the Circuit Court, by which the grounds of jurisdiction may be made to appear which were not presented to the State court on the motion for removal."

In Crehore v. R. R., 131 U.S. 240, it was held, quoting the syllabus, that "a fatal defect in the allegation of diverse citizenship in the petition for the removal of a cause from a State court for that reason, can not be corrected in the Circuit Court of the United States."

In Jackson v. Allen, 132 U.S. 27, 34, Fuller, C. J., speaking for the Court, says: "It appears from the record that the citizenship of the parties at the commencement of the actions, as well as at the time the petitions for removal were filed, was not sufficiently shown, and that therefore the jurisdiction of the State court was never (200) divested. This being so, the defect can not be cured by amendment."

In Gerling v. R. R., 151 U.S. 673, 690, the Court says: "The incidental suggestion in that opinion (Ayers v. Watson, 113 U.S. 594) that the petition for removal might be amended in the Circuit Court as to the form of stating the jurisdictional facts, assumes that these facts are already substantially stated therein, and accords with later decisions by which such amendments may be allowed when, and only when, the petition, as presented to the State court, shows upon its face sufficient ground for removal."

In Powers v. R. R., 169 U.S. 92, the Court, while holding that the petition may be amended in certain particulars where sufficient grounds for removal are shown upon the face of the petition and record as presented tothe State court, decides that it can not be amended in the Circuit Court where jurisdictional facts are not so shown. It says, on page 101: "A petition for removal, when presented to the State court, becomes part of the record of that court, and must doubtless show, taken in connection with the other matters on that record, the jurisdictional facts upon which the right of removal depends; because, if those facts are not made to appear upon the record of that court, it is not bound or authorized to surrender its jurisdiction, and, if it does, the Circuit Court of the United States can not allow an amendment of the petition, but must remand the case." The decisions of the Circuit Court of the United States are, of course, to the same effect. The rule is clearly stated in the recent case of Fife v.Whittell, 102 Fed., 537, 540.

We wish to be clearly understood. We hold, upon what we believe to be the authority of the Supreme Court of the United States, that the petition, when passed upon by the State court, must contain in (201) an affirmative form all the jurisdictional averments necessary for removal; that the State court has the right, subject to review, to pass upon the sufficiency of the petition as a question of law; that the simple averment, that a corporation was created under the laws of another State, does not negative the fact that it may have been reincorporated under the laws of this State; and that there must be an affirmative averment or admission, somewhere in the record, that a corporation seeking to remove a cause is not a domestic corporation of the State of North Carolina.

We think these requirements are lawful, and are certainly not unreasonable, in view of the fact that the records and decisions of this Court show that the defendant now seeking to remove its cause has become a domestic corporation by complying with the provisions of the act of 10 February, 1899, known as the "Domestication Act."

We are not seeking jurisdiction, but simply prescribing for ourselves the rule of conduct laid down by Chief Justice Marshall in Bank v. Deveaux, 5 Cranche, 61, where he says, on page 87: "The duties of this Court, to exercise jurisdiction where it is conferred and not to usurp it where it is not conferred, are of equal obligation. The Constitution, therefore, and the law are to be expounded, without a leaning the one way or the other, according to those general principles which usually govern in the construction of fundamental or other laws."

The merits of the case have nearly been lost sight of in the dominating question of removal. In fact, the recent cases of Coley v. R. R.,129 N.C. 407; Thomas v. R. R., 129 N.C. 392, and Cogdell v. R. R.,129 N.C. 398, all decided since the case at bar was tried in the court below, practically answer the defendant's exceptions. We see no error in the admission or rejection of evidence. It was competent for the plaintiff to show that he had complained of the road engines, and had been promised a safer engine on which to work. On the other hand, to show that the engineer had a book of rules does not of itself tend to prove that the plaintiff had any knowledge of (202) its contents.

All the defendant's prayers for instructions that were not given were properly refused or modified, as they practically amounted to a direction of the verdict.

In the absence of error, the judgment of the court below is

Affirmed.

Cited: Mott v. R. R., 131 N.C. 236; Beach v. R. R., ibid., 401; Lewisv. Steamship Co., ibid., 653; Biles v. R. R., 143 N.C. 87; Bissell v.Lumber Co., 152 N.C. 125; Herrick v. R. R., 158 N.C. 311; Cox v. R. R.,166 N.C. 662.