guish this from corporations in general. "When a government becomes a partner in any trading company, it divests itself, so far as concerns the transactions of that company, of its sovereign character and takes that of a private citizen. Instead of communicating to the company its privileges and its prerogatives, it descends to a level with those with whom it associates itself, and takes the character which belongs to its associates, and to the business which is to be transacted."1

As

§ 7456. Manner of Pleading Federal Jurisdiction. the jurisdiction of the courts of the United States is special and limited, the rule of procedure in those courts is that the jurisdiction should be made to appear upon the face of the declaration or complaint, or elsewhere on the record, whether the jurisdiction depends upon diverse citizenship, or upon a Federal question being involved in the litigation. It being also a rule of Federal jurisdiction founded upon diverse citizenship, that a corporation is a citizen of the State under whose laws it is created, and that all its members are to be conclusively presumed to be citizens of such State,' it is necessary, in pleading the jurisdictional facts in a declaration at law or bill in equity, where one of the parties is a corporation, either to state that it is a citizen of the State under whose laws it has been created, or to state the same fact by an equivalent averment, as by averring that it was created under the laws of such State. For instance, an allegation

1 Marshall, C. J., in Bank v. Planters' Bank, 9 Wheat. (U. S.) 904, 907. See also Louisville &c. R. Co. t. Letson, 2 How. (U. S.) 497, 551.

"Mexican Cent. R. Co. v. Pinkney, 149 U. S. 194; Wolfe v. Hartford &c. Ins. Co., 148 U. S. 389; Menard v. Goggan, 121 U.S. 253; Continental Ins. Co. v. Rhoades, 119 U. S. 237; Brown v. Keene, 8 Pet. (U. S.) 112, 115; Brock v. Northwestern Fuel Co., 130 U. S. 341; Provident Sav. Soc. v. Ford, 114 U. S. 635, 651.

'Metcalf v. Watertown, 128 U. S. 586; Colorado Cent. Min. Co. v. Turck,

150 U. S. 138; Southern Pac. Co. v. Denton, 146 U. S. 202.

Louisville &c. R. Co. v. Letson, 2 How. (U. S.) 497; Marshall v. Baltimore &c. R. Co., 16 How. (U. S.) 314, 328; Covington Drawbridge Co. v. Shepherd, 20 How. (U. S.) 227, 233; Ohio &c. R. Co. v. Wheeler, 1 Black (U.S.), 286, 296; Muller v. Dows, 94 U. S. 444; Steamship Co. v. Tugman, 106 U. S. 118, 121; Memphis &c. R. Co. v. Alabama, 107 U. S. 581, 585; Shaw v. Quincy Min. Co., 145 U. S. 444, 451.

that a corporation is "doing business in the State of Iowa," does not necessarily import that it was created by the laws of that State, and is not a sufficient allegation to show Federal jurisdiction founded upon diverse citizenship, within the meaning of this rule.' And so, under the Federal Removal Act of March 2, 1867, giving a right of removal from the State to the Federal courts, on the ground of prejudice and local influence, in suits in any State court" in which there is a controversy between a citizen of the State in which the suit is brought, and a citizen of another State," it is necessary that this diverse State citizenship should be shown, either on the face of the declaration, or in the petition or affidavit for removal.

Under the rule estab

§ 7457. Further of This Subject. lished in Bank v. Deveaux, it was necessary, in actions by or against a corporation aggregate, prosecuted in the Federal courts, that it should appear from the pleadings that all the members of that corporation were citizens of some State of the United States other than that State of which the opposing party or parties were citizens. But with the overthrow of this case as authority, allegations to this effect were no longer

1 Brock v. Northwestern Fuel Co., 130 U. S. 341.

14 U. S. Stat. 558.

A declaration, in an action brought in Mississippi by a citizen of Illinois, did not show this fact, which merely averred that the defendant was a corporation created by an act of the legislature of the State of New York, located and doing business in the State of Mississippi. Insurance Co. v. Francis, 11 Wall. (U. S.) 210. So, in an action by a State, against a corporation, brought in the Supreme Court of the United States, an averment that the defendant is a "body politic under the law of and doing business in" another State, does not exhibit jurisdiction, under that clause

of the Federal constitution (Const. U. S., art. 3, § 2), by which the Federal jurisdiction extends to controversies between a State and citizens of another State." Pennsylvania v. Quicksilver Min. Co., 10 Wall. (U. S.) 553. The reasoning was that, for aught that appeared, the corporation may have been created by the laws of Pennsylvania, and the Supreme Court of the United States has no original jurisdiction of a suit brought by a State against its own citizens.

5 Cranch (U.S.), 61; ante, § 7447. Sullivan v. Fulton Steamboat Co., 6 Wheat. (U. S.) 450; Breithaupt v. Bank, 1 Pet. (U. S.) 238; Bank v. Willis, 3 Sumn. (U. S.) 472.

necessary. "The persons who act under these faculties and use this corporate name," said Mr. Justice Grier, "may be justly presumed to be resident in the State which is the necessary habitat of the corporation, and where alone they can be made subject to suit; and should be estopped in equity from averring a different domicil, as against those who are compelled to seek them there, and can find them there and nowhere else."1

§ 7458. Manner of Averring Citizenship. It must not be inferred from the foregoing that, in an action by or against a corporation, it is sufficient, in order to give jurisdiction, to aver that the corporation is "a citizen" of the State where the suit is brought. Such an averment does not show that this body is a corporation, or by the law of what State it was created. "This court does not hold," said Mr. Justice Curtis, "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." Corporations are regarded as citizens for the purpose of suing and being sued; and it is sufficient to aver the place of creation and business of the corporation. However, an averment of incorporation in one State and residence in another does not show the corporation, for the purposes of suit, to be a citizen of the latter State. Such an averment shows that, for the purpose mentioned, the corporation is a citizen of the State first named.'

1 Marshall v. Baltimore &c. R. Co., 16 How. (U. S.) 314, 328. See also Dodge v. Woolsey, 18 How. (U. 8.) 331; Covington Drawbridge Co. v. Shepherd, 20 How. (U. S.) 227; 8. c. 21 How. (U.S.) 112; Ohio &c. R. Co. v. Wheeler, 1 Black (U.S.), 286; Paul v. Virginia, 8 Wall. (U. S.) 168, 178; Hatch v. Chicago &c. R. Co., 6 Blatchf. (U. 8.) 105; Coal Co. v. Blatchford, 11 Wall. (U. S.) 172; The Sewing Machine Companies' Case, 18 Wall. (U.S.) 553, 574; Railroad Co. v. Harris, 12 Wall. (U. S.) 65, 82; Railway Co. v. Whitton, 13 Wall.

371

(U. S.) 270; Cowles v. Mercer Co., 7 Wall. (U.S.) 118, 121; Express Co. v. Korentze, 8 Wall. (U. S.) 342, 351; Insurance Co. v. Morse, 20 Wall. (U.S.) 445, 453.

Lafayette Ins. Co. v. French, 18 How. (U. S.) 404, 405; Paul v. Virginia, 8 Wall. (U. S.) 168; Warren Man. Co. v. Etna Ins. Co., 2 Paine (U.S.), 501.

See Marshall. Baltimore &c. R. Co., and other cases cited to the preceding section.

• Insurance Co. v. Francis, 11 Wall. (U. S.) 210.

5921

ARTICLE III. REMOVAL OF SUCH ACTIONS FROM THE STATE TO THE FEDERAL COURTS.

§ 7462. Right of Foreign Corporations to Remove on the Ground of Diverse Citizenship. Since the Supreme Court of the United States took the departure of holding that a corporation aggregate is a "citizen" of the State under whose laws it is created, for the purposes of Federal jurisdiction founded upon diverse citizenship,' it has been held, by analogy, that corporations are "citizens" within the meaning of acts of Congress providing for the removal of suits from the State to the Federal courts; and such is now the settled law. Thus, under the statute of the United States giving a right of removal on the ground of prejudice or local influence, which provided that, when an action is brought in any State court "in which there is a controversy between a citizen of the State in which the suit is brought, and a citizen of another State," etc.,". . . . . such citizen of another State, whether he be plaintiff or defendant, if he will make and file, in such State court, an affidavit stating," etc., may have the cause removed to the Circuit Court

Ante, § 7448.

'Herryford v. Etna Ins. Co., 42 Mo. 148; Stanley v. Chicago &c. R. Co., 62 Mo. 508; Farmers' Loan &c.

Co. v. Maquillan, 8 Dill. (U. S.) 379.

Act Cong. March 2, 1867; 14 U.S. Stat. 558; Rev. Stat. U. S., § 639.

of the United States for final hearing, -it has been held that a corporation, resident of another State, may make such an affidavit and effect a removal of the cause to the Federal court.' When, therefore, a corporation makes an application for the removal of a cause in which it is impleaded as defendant, from a State court to a Circuit Court of the United States, in the manner prescribed by the act of Congress, it is error in the State court to proceed further in the matter, and any subsequent step is coram non judice.2

§ 7463. Submission to Local Jurisdiction does not Preclude Right of Removal. Although a foreign corporation may have submitted to the jurisdiction of the domestic State, by complying with the conditions upon which alone it is permitted to do business therein, yet such a corporation, in every case, remains a "citizen" of the State of its creation, within the rule of Federal jurisdiction already referred to; and consequently it retains, in all such cases, its right to remove to the Circuit Court of the United States any action brought against it in a State court, which otherwise comes within the terms of the act of Congress authorizing such a removal by a non-resident citizen. For instance, a State statute requiring

1 Mix v. Andes Ins. Co., 74 N. Y. 53; 8. c. 30 Am. Rep. 260. In Cooke v. State Nat. Bank, 52 N. Y. 96; 8. c. 11 Am. Rep. 667, — the contrary was held, on the ground that a corporation could not make the affidavit required by the statute; but this holding was expressly overruled in the case just cited. To the contrary of the text, see Mahone v. Manchester &c. R. Co., 111 Mass. 72; 8. c. 15 Am. Rep. 9; Quigley v. Central Pac. R. Co., 11 Nev. 350; 8. c. 21 Am. Rep. 757. The above text is supported throughout by Federal cases hereafter cited in this chapter. What controversy deemed a "suit" within the removal acts: proceeding for condemnation of land is. Patterson v.

Mississippi &c. Broom Co., 3 Dill. (U.S.) 465.

Herryford v. Etna Ins. Co., 42 Mo. 148.

• Ante, § 7448.

Herryford v. Etna Ins. Co., 42 Mo. 148; Morton v. Mutual Fire Ins. Co., 105 Mass. 141; 8. c. 7 Am. Rep. 505; Myers v. Murray, 43 Fed. Rep. 695; s. c. 11 L. R. A. 216; 32 Am. & Eng. Corp. Cas. 25; Henning v. Western Union Tel. Co., 43 Fed. Rep. 97; Baughman v. National Water Works Co., 46 Fed. Rep. 4; Taylor Co. v. Baltimore &c. R. Co., 35 Fed. Rep. 161, 170; Fisk v. Chicago &c. R. Co., 2 Abb. Pr. (N. s.) (N. Y.) 453; 8. c. 53 Barb. (N. Y.) 472; Western Union Tel. Co. v. Dickinson, 40 Ind. 444;