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Argued October 11, 12, 1904. Decided No- views expressed in Dobbins v. Los Angeles, vember 14, 1904.

195 U. S. 223, 25 Sup. Ct. Rep. 18, 49 L. ed.

169. It was a petition for a writ of habeas IN N ERROR to the Supreme Court of the corpus to discharge Daly from custody, in

State of California to review a judgment a prosecution under the ordinance under which denied a petition for a writ of ha- consideration in the Dobbins Case. The beas corpus to discharge from custody a per- prayer of the petition was denied and the son convicted of a violation of a municipal writ discharged. Re Daly, 139 Cal. 216, 72 ordinance prohibiting the erection and main- Pac. 1097. Under the California practice, tenance of gas works except within certain in the absence of issue joined the allegations prescribed limits. Reversed and remanded of the petition are taken as true and the for further proceedings.

facts alleged therein are taken as admitted. See same case below, 139 Cal. 216, 72 Re Smith, 143 Cal. 368, 77 Pac. 180. The Pac. 1097.

petition made allegations attacking the orThe facts are stated in the opinion. dinance, which, if true, would render it in

Messrs. Lynn Helm, Edward C. valid for the reasons stated in the Dobbins Bailey, Henry T. Lee, J. R. Scott, and Case, supra, and the petitioner upon the Charles W. Chase for plaintiff in error. record made should have been discharged

Messrs. W. B. Mathews and Herbert J. from custody. Goudge for defendant in error.

It is therefore ordered that the judgment

of the Supreme Court of California be reMr. Justice Day delivered the opinion of versed and the cause remanded for further the court:

proceedings not inconsistent with the views This case is practically determined by announced in the Dobbins Case, supra.

MAS

(195 U. S._207) MARIA F. THOMAS and George Folsom Messrs. Lawrence Maxwell, Jr., and V.

Joseph Olds for the Board of Trustees of the BOARD OF TRUSTEES OF THE OHIO Ohio State University. STATE UNIVERSITY.

Messrs. J. E. Sater and L. F. Sater for

Thomas and Folsom. Federal courts-jurisdiction-sufficiency of ailegations to show diverse citizenship.

Mr. Justice Harlan delivered the opinion

of the court: 1. An allegation that the defendant, the This case is before us upon certified ques

Board of Trustees of the Ohio State Univer: tions relating to the jurisdiction of the cirsity, is a citizen of and domiciled in that cuit court. state, and was created by and exists under certain designated laws of that state, with

The suit is in equity, and the plaintiff is power to sue and be sued, will be held not a citizen of Michigan. The defendants are sufficiently to aver that such body is an Ohio George Folsom, a citizen of California, and corporation, within the jurisdictional rule the Board of Trustees of the Ohio State Uniof the Federal courts imputing to the mem

versity. bers of a corporation citizenship in the state creating it, where the statute creating the

The object of the bill was to effect the board has been upheld by the highest court partition of certain lands claimed by the of the state as not conferring and not intend- plaintiff and the defendant Folsom as tened to confer corporate powers in violation of ants in common, but held adversely by the a prohibition in the state Constitution against defendant board of trustees. The plaintiff

conferring corporate powers by special act. 2. The citizenship of the individual members sought to have the title determined as pre

of the Board of Trustees of the Ohio State liminary to partition. University does not sufficiently appear for The board of trustees appeared and dethe purpose of conferring jurisdiction on a murred to the bill as not making a case Federal circuit court of a suit against such entitling the plaintiff to any relief against board from averments that show that the

it. board, while not an Obio corporation, was created by and exists as an organized body

The demurrer was sustained, and the bill under the laws of that state, although, under dismissed,—the decree reciting that neither the Ohio Constitution, no person can be the plaintiff nor the defendant Folsom had elected or appointed to any office in the state any title or interest in the lands described unless he possesses the qualifications of an in the bill, or in the rents or profits thereof, elector, and an elector must be a citizen of but that the same belonged to the Board of the state.

The jurisdiction of a Federal circuit court Trustees of the Ohio State University. Folon the ground of diverse citizenship over a som entered his appearance in circuit court, suit between a citizen of Michigan end the but made no defense, nor was any decree Board of Trustees of the Ohio State Univer. taken by default against him. sity will sufficiently appear, so far as the pleadings are concerned, without bringing the

From that decree the plaintiff and the deseveral persons constituting the board be- fendant Folsom prayed and perfected an fore the court as defendants, where it is appeal. averred that the board was created by and It is certified that the jurisdiction of the exists as an organized body under the laws circuit court was wholly dependent upon of Ohio, with power to sue and be sued by diversity of citizenship, and that neither its collective name, if it is also alleged that each individual trustee is a citizen of that defendant objected in the circuit court that state.

the case was not of equitable cognizance, or [No. 43.]

that the court, as a Federal court, was with

out jurisdiction to determine it. But in the Argued and submitted November 3, 1904. circuit court of appeals Folsom insisted, Decided November 14, 1904.

among other things, that the circuit court

“had no cognizance of the cause because the ON N A CERTIFICATE from the United requisite diversity of citizenship does not

States Circuit Court of Appeals for the exist, the Board of Trustees of the Ohio Sixth Circuit, presenting questions relating State University not being a corporation of to the jurisdiction of the Circuit Court for Ohio within the jurisdictional rule imputthe Southern District of Ohio, Eastern Divi. ing to the members of that board citizenship sion, on the ground of diverse citizenship, of of the state under whose law it is organa suit in which the Board of Trustees of the ized.” Ohio State University was a defendant. The circuit court of appeals propound the Answered by holding that the Circuit Court following questions: was without jurisdiction, with a grant to the 1. Does the bill sufficiently aver that the Circuit Court of Appeals of leave to author. Board of Trustees of Ohio State University ize such amendment of the bill in the Cir. is a corporation of the state of Ohio, or does cuit Court as will show jurisdiction. it aver facts which, in legal intendment, con

The facts are stated in the opinion. stitute said body a corporation of the state

of Ohio, within the rule that a suit by or Cease, 97 U. S. 646, 648, 24 L. ed. 1057, against a corporation in a court of the 1058; National 8. 8. Co. v. Tugman, 106 United States is conclusively presumed, for U. S. 118, 120, 27 L. ed. 87, 88, 1 Sup. Ct. the purpose of litigation, to be one by or Rep. 58; King Bridge Co. v. Otoe County, against citizens of the state creating the 120 U. S. 226, 30 L. ed. 623, 7 Sup. Ct. Rep. corporation ?

552; Parker v. Ormsby, 141 U. S. 81, 35 L. 2. If the said board of trustees be not ed. 654, 11 Sup. Ct. Rep. 912; Continental such a corporation as is required by the Nat. Bank v. Buford, 191 U. S. 120, 48 L. jurisdictional rule referred to, may this suit ed. 119, 24 Sup. Ct. Rep. 54. be maintained against it as “The Board of It is equally well established that when Trustees of the Ohio State University” with jurisdiction depends upon diverse citizenship out bringing the persons constituting the the absence of sufficient averments or of board before the court as defendants ? facts in the record showing such required

3. If the said board may sue or be sued diversity of citizenship is fatal and cannot in a Federal court by the name of “The be overlooked by the court, even if the parBoard of Trustees of the Ohio State Univer- ties fail to call attention to the defect, or sity," although not constituting a corpo- consent that it may be waived. Mansfield, ration of the state of Ohio, within the juris-C. & L. M. R. Co. v. Swan, 111 U. S. 379, dictional rule referred to in the first ques- 28 L. ed. 462, 4 Sup. Ct. Rep. 510; Martin tion, do the facts stated on the face of the v. Baltimore & O. R. Co. 151 U. S. 673, 689, bill sufficiently show that the persons com- 38 L. ed. 311, 317, 14 Sup. Ct. Rep. 533; posing said board of trustees are citizens of Powers v. Chesapeake of 0. R. Co. 169 U. S. Ohio, or should the court take notice of the 92, 98, 42 L. ed. 673, 675, 18 Sup. Ct. Rep. law creating said board of trustees, and of 264. As late as in Minnesota v. Northern other laws of Ohio defining the qualifica- Securities Co. 194 U. S. 48, 62–3, 48 L. ed. tion of such trustees, and by legal intend. 870, 877, 878, 24 Sup. Ct. Rep. 598, 601, we ments find that the persons constituting said said, both parties insisting upon the jurisboard when this bill was filed were in fact diction of the circuit court: "Consent of citizens of Ohio, and that the requisite di- parties can never confer jurisdiction upon a versity of citizenship existed to give juris- Federal court. If the record does not afdiction to the circuit court?

firmatively show jurisdiction in the circuit That the jurisdiction of a circuit court of court, we must, upon our own motion, so dethe United States is limited in the sense clare and make such order as will prevent that it has no jurisdiction except that con- that court from exercising an authority not ferred by the Constitution and laws of the conferred upon it by statute.” United States; that a cause is presumed to So that the fact stated in the certificate, be without its jurisdiction unless the con- that neither party in the circuit court obtrary affirmatively appears; that such ju-jected to its jurisdiction, is of no conserisdiction, or the facts upon which, in legal quence. intendment, it rests, must be distinctly and Two other cases illustrating the above positively averred in the pleadings, or rules may be specially referred to. should appear affirmatively and with equal In Chapman v. Barney, 129 U. S. 677, 682, distinctness in other parts of the record, it 32 L. ed. 800, 801, 9 Sup. Ct. Rep. 426, 428, not being sufficient that jurisdiction may be which was a suit in the circuit court for inferred argumentatively; and that, for the the northern district of Illinois, by the purposes of suing and being sued in a cir- United States Express Company against a cuit court of the United States, the mem- citizen of Illinois, the declaration alleged bers of a local “corporation" are conclusively that the company was organized under and presumed to be citizens of the state by whose by virtue of the laws of New York, and was laws it was created, and in which alone the a citizen of that state. The court said: "On corporate body has a legal existence,-are looking into the record we find no satispropositions so firmly established that fur- factory showing as to the citizenship of the ther discussion of them would be both use plaintiff. The allegation of the amended peless and inappropriate. Brown v. Keene, 8 tition is, that the United States Express Pet. 112, 115, 8 L. ed. 885, 886; Louisville, Company is a joint-stock company, organC. & C. R. Co. v. Letson, 2 How. 497, 11 Lized under a law of the state of New York, ed. 353; Marshall v. Baltimore & 0. R. Co. and is a citizen of that state. But the ex16 How. 314, 14 L. ed. 953; Lafayette Ins. press company cannot be a citizen of New Co. v. French, 18 How. 404, 405, 15 L. ed. York, within the meaning of the statutes 451; Covington Drawbridge Co. v. Shepherd, regulating jurisdiction, unless it be a cor20 How. 227, 15 L. ed. 896; Ohio & M. R. poration. The allegation that the company Co. v. Wheeler, 1 Black, 286, 296, 17 L. ed. was organized under the laws of New York 130, 133; Merchants' Ins. Co. v. Ritchie, is not an allegation that it is a corporation. 5 Wall. 541, 18 L. ed. 540; Robertson v. ' In fact, the allegation is, that the company

is not a corporation, but a joint-stock com- citizen of Pennsylvania. The case was then pany,--that is, a mere partnership. And, heard upon its merits and was again brought although it may be authorized by the laws here and determined. Great Southern Fire of the state of New York to bring suit in the Proof Hotel Co. v. Jones, 193 U. S. 532, 48 name of its president, that fact cannot give L. ed. 778, 24 Sup. Ct. Rep. 576. the company power, by that name, to sue in In the light of these decisions we come to a Federal court. The company may have the question whether the jurisdiction of the been organized under the laws of the state circuit court affirmatively appears in this of New York, and may be doing business in case. If it does not, it must be held that that state, and yet all the members of it that court had no authority to take cognimay not be citizens of that state. The rec-zance of it. ord does not show the citizenship of Barney The bill alleges that the defendant the or of any of the members of the company.” Board of Trustees of the Ohio State Univer

In Great Southern Fire Proof Hotel Co. sity "was created by, and exists under and v. Jones, 177 U. S. 449, 456, 457, 44 L. ed. by virtue of, a law duly passed and enacted 842, 845, 20 Sup. Ct. Rep. 690, 693, the bill by the legislature of said state of Ohio, on alleged that the plaintiffs Jones and others March 220, 1870, and now known and desig. were members of a limited partnership as- nated as 88 4105-9 and following, of the sociation, doing business, by their firm name, Revised Statutes of said state of Ohio, and under the authority of a Pennsylvania stat- the subsequent acts amendatory of and supute, and that such association was a citizen plementary thereto;" that said board, “under of that state. Although the Constitution of and by virtue of the aforesaid laws and Pennsylvania provided that the term "cor- enactments, and at all times since its creaporation,” as used in a certain article of that tion and establishment, is fully authorized instrument, should be construed as including and empowered to sue and be sued, to conall joint-stock companies or associations

or associations tract and be contracted with, to make and having any of the powers or privileges of use a common seal, and to alter the same at corporations not possessed by individuals or its pleasure, and to adopt by-laws, rules, and partnerships, and although the supreme regulations for the government of said colcourt of Pennsylvania had held that it would lege, and to have the general supervision not be improper to call a limited partner of all lands, buildings, and other property ship, created under its statutes, a quasi cor- belonging to said college, and of receiving by poration, having some of the characteristics gift, devise, or bequest, moneys, lands, and of a corporation, this court, without con other properties for its benefit and for the sidering the merits of the case, said: "When benefit of those under its charge, subject, the question relates to the jurisdiction of a however, to the provisions, exceptions, and circuit court of the United States as resting restrictions contained in section twenty and on the diverse citizenship of the parties, we five thousand nine hundred and fifteen of must look, in the case of a suit by or against the Revised Statutes of the state of Ohio;" a partnership association, to the citizenship and is “a citizen of and domiciled in the of the several persons composing such asso- state of Ohio.” 67 Ohio Laws, 20; 75 Ohio ciation. · That a limited partnership Laws, 126; Ohio Rev. Stat. $$ 4105 et seq. association created under the Pennsylvania Do those averments, taken in connection statute may be described as a 'quasi corpo- with the statutes of Ohio relating to the deration,'having some of the characteristics of fendant board,-of the provisions of which a corporation, or as a 'new artificial person,' statutes judicial notice may be taken (Hanis not a sufficient reason for regarding it as ley v. Donoghue, 116 U. S. 1, 6, 29 L. ed. a corporation within the jurisdictional rule 535, 537, 6 Sup. Ct. Rep. 242),-sufficiently heretofore adverted to. That rule must not show that the circuit court was entitled to be extended. We are unwilling to extend it so take cognizance of this case ? as to embrace partnership associations.

If the defendant board had been specificalWe therefore adjudge that, as the bill does ly averred to be, and was in fact, a corponot make a case arising under the Constitu- ration created by and existing under the laws tion and laws of the United States, it was of Ohio, then, within the meaning of the adnecessary to set out the citizenship of the judged cases, the controversy would have individual members of the partnership asso- been one between citizens of different states, ciation of Jones & Laughlins, Limited, which and consequently within the jurisdiction of brought this suit.” The judgment was re- the circuit court; for, in that case, the legal versed upon the ground that the jurisdiction presumption would be that the trustees were of the circuit court did not affirmatively ap- citizens of the state by which the corporapear from the record. Upon the return of tion was brought into existence, and no the cause to the court of original jurisdic- averment or evidence to the contrary would tion the bill was amended, and it was alleged be admissible for the purpose of withdraw. that each member of the partnership was a 'ing the suit from the jurisdiction of the cir.

cuit court. Ohio od M. R. Co. v. Wheeler, 1 and as not intended to confer, corporate Black, 286, 296, 17 L. ed. 130. Here the powers on the board. averment is only that the defendant board This question was presented in Neil v. of trustees is a citizen of and domiciled in Ohio Agricultural & Mechanical College Ohio; not that the trustees themselves are (1876) 31 Ohio St. 15, 21, which was the citizens of that state. That averment alone original name of the Ohio State University. is not sufficient. In Lafayette Ins. Co. v. The validity of the act creating the board French, 18 How. 404, 405, 15 L. ed. 451, 452, was there brought in question as having, to which was a suit brought in the circuit all intents and purposes, created a corporacourt of the United States for the district tion, and clothed it with corporate powers of Indiana, the declaration alleged that the and privileges. But the supreme court of plaintiffs were citizens of Ohio, and that the Ohio said: “We are not able to yield our defendant, the Lafayette Insurance Com- assent to this construction of the statute. pany, was a citizen of Indiana. This court, The act is entitled 'An Act to Establish and speaking by Justice Curtis, said: “This aver- Maintain an Agricultural and Mechanical ment is not sufficient to show jurisdiction. College in Ohio.' It creates a board of trusIt does not appear from it that the Lafayette tees, to be appointed by the governor, by and Insurance Company is a corporation, or, if with the advice and consent of the senate; it be such, by the law of what state it was and commits to such board the government, created. The averment that the company control, and general management of the afis a citizen of the state of Indiana can have fairs of the institution; and while the statno sensible meaning attached to it. This ute authorizes the board to make contracts court does not hold that either a voluntary for the benefit of the college, and to mainassociation of persons, or an association into tain actions, if necessary, to enforce them, a body politic, created by law, is a citizen of and to exercise other powers similar to a state within the meaning of the Constitu- those conferred on bodies corporate, it does tion.” It is vital that the corporate char- not assume to, nor does it in fact, create acter of the collective body should be aver or constitute such board of trustees a corred or shown.

poration; and hence does not clothe it with The fundamental inquiry, therefore, is corporate functions or powers. State ex rel. whether the defendant board of trustees is Atty. Gen. v. Davis, 23 Ohio St. 434. The a “corporation” within the jurisdictional college is a state institution, designed and rule that admits of a corporation being re- well calculated to promote public educagarded, for purposes of suing and being suedtional interests, established for the people in the courts of the United States, as a citi- of the whole state, to be managed and conzen of the state under and by the laws of trolled by such agencies as the legislature, which it was created. The pleadings, we in its wisdom, may provide. Similar powers, have seen, do not in terms aver the board but perhaps less extensive, because less reto be a corporation; only that it is a citizen quired, are conferred on the trustees of the of and domiciled in Ohio, and to have been various hospitals for the insane (73 Ohio created as a collective body by the laws of Laws, 80), and on the board of managers that state, with power to sue and be sued of the Ohio Soldiers' and Sailors' Orphans' by the name of the Board of Trustees of the Homes (67 Ohio Laws, 53), and other instiOhio State University. Those laws must tutions of the state. The powers thus contherefore be examined in order to ascertain ferred are essentially necessary to accomwhether, for purposes of suit in the circuit plish the objects for which these institutions court of the United States, the board may be were established. The power to establish deemed a corporation of Ohio within the them is found clearly granted in the 7th

article of the Constitution." The article meaning of the above cases. In determining this question we are con

here referred to gave the legislature power

to establish benevolent and other state infronted with the fact that the statute cre

stitutions. ating the defendant board was clearly a

Thus, upon an issue distinctly made, the special, as distinguished from a general, act, and that the Constitution of Ohio forbade supreme court of Ohio has adjudged that the

defendant board is not, and was not intended the passage of any special act conferring to be made, a corporation of the state, but corporate powers. Ohio Const. art. 13, § 1. only an agency to manage and control a So that the board of trustees cannot be held state institution as the state may direct or to have been made a corporation or endowed provide. And the interpretation of the state with corporate powers without holding that constitution upon which that judgment rests the act by which it was created was invalid has never been modified by that court. under the Constitution of Ohio; whereas, While the state court may not conclusivethe supreme court of Ohio have adjudicated ly determine for this court what is and what that the act was valid, as not conferring,' is not a corporation within the meaning of

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