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foreign insurance companies doing business within the State to appoint resident agents upon whom all lawful process against them may be served, with like effect as if they were domestic companies, does not so operate that a foreign insurance company, by appointing such an agent and accepting service of process as provided by the statute, precludes itself from removing the cause to the Circuit Court of the United States in a proper case.
8 7464. Further of This Doctrine. Unquestionably, the settled doctrine is that where the domestic State endeavors, by its logislation, to make all foreign corporations domestic corporations, for the purposes of State jurisdiction, this does not operate to make them such for the purposes of Federal jurisdiction, and that such a statute is void in so far as it attempts to restrain the right of the domesticated corporation
8. c. 13 Am. Rep. 295; Amsden v. Nor- by doing business in Michigan under wich Union Fire Ins. Soc., 44 Fed. the statutes of that State, and acceptRep. 515 (disapproving Scott v. Texas ing service of process in conformity Land &c. Co., 41 Fed. Rep. 225). with the same, waives its right of trans
1 Morton v. Mutual Fire Ins. Co., fer to the Federal court. People v. 105 Mass. 141; 8. c. 7 Am. Rep. 505. Circuit Court, 21 Mich. 577; 8. C. 4 So held in Knorr v. Home Ins. Co., Am. Rep. 504. But this view has 25 Wis. 143; 8. C. 3 Am. Rep. 26; de been disaffirmed by the Supreme nying Stevens v. Phænix Ins. Co., 24 Court of the United States, whose How. Pr. (N. Y.) 517, and New York authority on the question is final and Piano Co. v. New Haven Steamboat decisive. Post, $ 7466. It was held Co., 2 Abb. Pr. (N. 8.) (N. Y.) 358, and by the Court of Appeals of Virginia, approving Dennistoun . New York that it corporation of another State, &c. R. Co., 1 Hilt. (N. Y.) 62, and leasing and operating a railway in Fisk v. Chicago &c. R. Co., 3 Abb. Pr.
Virginia, is subject to be sued in Vir(N. 8.) (N. Y.) 454; 8. C. 53 Barb.
ginia as a domestic corporation, and (N. Y.) 472. The doctrine of the text is not entitled to remove the action is also supported by Hobbs v. Man- from the State to the Federal court. hattan Ins. Co., 56 Me. 417; 8. c. 96 Baltimore &c. R. Co. v. Wightman, Am. Dec. 472. To the same effect are 29 Gratt. (Va.) 431; 8. C. 26 Am. Rep. Holden v. Putnam Fire Ins. Co., 46 384; denying Baltimore &c. R. Co. v. N. Y. 1; 8. c. 7 Am. Dec. 287; Herry- Cary, 28 Ohio St. 208, 218. But the ford v. Ætna Ins. Co., 42 Mo. 148; and contrary was held by the Supreme Amsden v. Norwich Union Fire Ins. Court of the United States, and this, Soc., 44 Fed. Rep. 515. On the con- of course, disposes of the question, trary, it has been held in Michigan Railroad Co. v. Koontz, 104 U. S. 5. that a foreign insurance company,
to remove to a Federal tribunal an action brought against it in a State tribunal.' When, therefore, an action is commenced against a foreign insurance company by the service of summons upon the person appointed by such company to receive service of process within the State, in pursuance of a statute of the State, as its agent and attorney therein, upon whom all process against the non-resident company may be served, and who is also its managing agent within the State, such agent and attorney can, upon entering appearance for the defendant, file a petition for the removal of the cause, under section 639 of the Revised Statutes of the United States, signing the same by him as such attorney and verifying it by his affidavit, in which he states that he is the defendant's general managing agent; and this will be the act of the defendant and will have the effect of removing the cause and ousting the State court of further jurisdiction.”
87465. This Right of Removal Extends to “Tramp Corporations.” — By analogy to the doctrine elsewhere referred
Rece v. Newport News &c. Co., setts, within the meaning of the 32 W. Va. 164; 8. c. 5 Ing. L. J. 515; acts relating to the removal of causes 3 L. R. A. 572; 5 Rail. & Corp. L. J. to the Federal courts. 3. That the 515; 9 S. E. Rep. 212; post, § 7466. joinder in the action, as defendants,
: Shaft o. Phenix Mut. Ins. Co., of the drawers of the check, would 67 N. Y. 514; 8. c. 23 Am. Rep. 138. not deprive the bank of the right See, further, Insurance Company v. alone to apply for the removal of the Dunn, 19 Wall. (U.S.) 214; Farmers'
cause to the Federal court, the causes Loan &c. Co. v. Maquillan, 3 Dill. of action being distinct and only (U. S.) 379; Minnett v. Milwaukee properly joined by virtue of a State &c. R. Co., 3 Dill. (U. S.) 460. In
statute. A fourth proposition was Cooke v. State Nat. Bank, 52 N. Y, ruled by a divided court, which was, 96; 8. c. 11 Am. Rep. 667,- the action
that the cause could not be removed was brought by a citizen of New York, by the bank into the Federal court in a State court in New York, against under the Act of Congress of March a national bank located in Boston. 2, 1867, on the ground of local prejuIt was held: 1. That the court was dice, by reason that, being a corponot ousted of jurisdiction by section ration, it had not the power to make 57 of the National Currency Act (13 the atfidavit prescribed by the statU. S. Stat, at Large, 99), that statute ute. But the case has been overruled being permissive, and not mandatory on this last point, as already stated, as to the courts in which a national by Mix v. Andes Ins. Co., 74 N. Y, bank may be sued. 2. That the den
53; 3. c. 30 Am. Rep. 260. fendant was a citizen of Massachu
to, that a corporation is conclusively presumed, for the purposes of Federal jurisdiction, to be a "citizen” of the State under whose laws it is created, no matter whether it has an actual domicile in that State or not, and no matter where its actual business domicile may be, and no matter what the citizenship of its members may be,' -- it is the doctrine that, within the meaning of the removal acts, a corporation is a citizen and resident of the State under whose laws it is created, although it may be organized for the purpose of doing business chiefly in other States. Under this theory, a corporation aggregate, composed, we will say, entirely of citizens of New York, created for the purpose of carrying on business in the State of New York, and nowhere else, under a charter procured by the aid of an attorney in West Virginia, under the laws of that State, becomes a citizen of the State of New York; so that whenever an action is brought against it by another citizen of that State, for an amount within the jurisdiction of the Circuit Court of the United States, it is entitled to remove the action into that court, thus defrauding the State court of its rightful jurisdiction over its own citizens.
8 7466. Invalidity of Stipulations not to Remove. It is a general principle of law that an agreement in advance in which an attempt is made to oust the ordinary jurisdiction of the courts, is illegal and void. Misapplying this principle, the courts of the United States hold that a statute of a State imposing upon a foreign insurance company, as a condition upon which the State grants to it the right to do business within its limits, that it will file an agreement that it will not
· Ante, $ 7448, et seq.; Louisville Works Co., 46 Fed. Rep. 4; Myers &c. R. Co. v. Letson, 2 How. (U. S.) 0. Murray, 43 Fed. Rep. 695. 497; Railroad Company v. Harris, 12
3 The writer is here referring to Wall. (U. S.) 65; Railway Company actual, and not to imaginary, cases. v. Whitton, 13 Wall. (U. S.) 270;
* Nute v. Hamilton &c. Ins. Co., 6 Muller v. Dows, 94 U. S. 444; Myers Gray (Mass.), 174; Cobb v. New Engv. Murray, 43 Fed. Rep. 695; Will
land Mut. Ins. Co., 6 Gray (Mass.), iams v. Missouri &c. R. Co., 3 Dill.
192; Hobbs v. Manhattan Ins. Co., 56 (U. S.) 267.
Me. 417, 421; Stephenson v. Piscata• Baughman v. National Water
qua Ing. Co., 54 Me. 55, 70; Scott t.
Avery, 5 H. L. Cas. 811.
remove suits from the courts of the State into the courts of the United States, is void.' The doctrine, as generally formulated, is that a State is powerless to confer upon an artificial being, of its own creation, the faculty of exercising any power in a foreign State; and, conversely, that a State may impose upon a foreign corporation any terms, conditions, and restrictions which it may see fit, upon which, alone, it will be permitted to enter the domestic jurisdiction for the purpose of engaging in business there;but that a qualification of this principle is that such terms, conditions, and restrictions shall not be repugnant to the constitution and laws of the United States. For this reason an agreement exacted of a corporation, as a condition precedent to its right to engage in business in the State, that it will not remove any suit for trial into the Federal courts, is illegal, and a statutory provision imposing such an agreement is unconstitutional, as being an attempt to oust the Federal courts of their lawful jurisdiction. But, on the other hand, the correlative propositions that the laws of one State creating and empowering a corporation can have no force, ex proprio vigore, in another State, and consequently that another State may refuse all recognition to such a corporation, and exclude it from its limits, except where it is engaged in interstate commerce, or is an agency of the United States, carry with them the conclusion that when a foreign corporation enters the domestic State under its license, it is there by sufferance, and that the State may at any time revoke the permission and expel it from its limits. Therefore, the contradictory
1 Insurance Company v. Morse, 20 Wall. (U. S.) 445; reversing 8. c. 30 Wis. 496; 11 Am. Rep. 580, and overruling New York Life Ins. Co. v. Best, 23 Ohio St. 105; Southern Pac. R. Co. o. Denton, 146 U. S. 202; Barron v. Burnside, 121 U. S. 186. Compare Doyle v. Continental Ins. Co., 94 U.S. 535. This holding was, of course, followed in the inferior Federal courts. Barling 0. Bank of British North America, 50 Fed. Rep. 260. And it was, of course, followed by the State
judicatories: Texas Land &c. Co. o. Worsham, 76 Tex. 556; 8. C. 13 S. W. Rep. 384; Rece v. Newport News &c. Co., 32 W. Va. 164; 8. C. 9 S. E. Rep. 212; 3 L. R. A. 572; 5 Rail. & Corp. L. J. 515.
? Bank of Augusta v. Earle, 13 Pet. (U. S.) 519; Lafayette Ins. Co. v. French, 18 How. (U. S.) 484; Ducat v. Chicago, 10 Wall. (U.S.) 410; Paul v. Virginia, 8 Wall. (U. S.) 168.
3 Insurance Company v. Morse, 20 Wall. (U. S.) 445.
conclusion has been arrived at, that, although such an agree ment, as above referred to, is void, yet the State may, when the corporation refuses to be bound by it, recall the license granted to it, and expel it from its limits, and the judicial power of the United States does not extend to preventing it from so doing.'
8 7467. Further of This Subject. The misapplication of the principle will appear when it is considered that it has always been held by the Supreme Court of the United States that it is competent for the States to exclude from their limits foreign corporations entirely, and, a fortiori, to impose any con. ditions which they may see fit as the terms on which they shall be admitted to enter for the purpose of doing business therein. The former proposition necessarily includes the late ter. The absolute power of exclusion which is conceded to the States, except in so far as it interferes with interstate commerce, or with the agencies of the Federal government,' necessarily includes the right to impose any conditions of admission which the State may see fit, no matter how absurd, oppressive, or impossible of performance. No condition can be excepted out of the category which the State may impose, without denying its right to exclude the foreign corporation from its limits. When, therefore, the Supreme Court of the United States holds in one breath that a State may exclude altogether from its limits a foreign corporation, such as an insurance company, which is not engaged in interstate commerce, and in the next breath that it cannot impose the con. dition of admission that the corporation shall agree to litigate controversies only in the courts of the State, and not to remove them to the courts of the United States, it is guilty of a reductio ad absurdum, and one which illustrates, in a pitiable degree, the extent to which judges are greedy of jurisdiction, and the general incapacity of judges to reason calmly and sensibly on the question of their own jurisdiction. The rea
1 Doyle v. Continental Ins. Co., 94 U. S. 535. • Post, $ 7875, et seq.
8 Post, $ 7880; Paul v. Virginia, 8 Wall. (U. S.) 168, 177.