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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.'
§ 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 conditions 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 latter. 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 condition 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
Doyle v. Continental Ins. Co., 94 U. S. 535.
Post, § 7875, et seq.
Post, § 7880; Paul v. Virginia, 8 Wall. (U. S.) 168, 177.
soning of one Federal judge is to the effect that this doctrine is applicable even in the case of a corporation created under the laws of a foreign country.1 Unquestionably, it is a sound doctrine that it is not competent for the States in any way to limit or restrain the jurisdiction of the national courts. But legislation of this kind does not restrain the jurisdiction of the courts of the United States, but merely restrains the sphere of action of foreign corporations. It does not restrain the jurisdiction of the courts of the United States; since the States, by their grant admitting the corporation within their limits, themselves create, and at their mere pleasure, the conditions of jurisdiction if any exist; and if the States may, at their mere pleasure, make or refuse the grant which of itself creates the conditions of jurisdiction, they may make it on the condition that the jurisdiction shall not exist. Point is given to this argument by the statement of one of the applications of the jurisdictional doctrine thus laid down by the Supreme Court of the United States. A statute of Wisconsin
1 Barling v. Bank of British North America, 50 Fed. Rep. 260.
2 Orange Nat. Bank v. Traver, 7 Fed. Rep. 146; Phelps v. O'Brien County, 2 Dill. (U. S.) 518; Railway Company v. Whitton, 13 Wall. (U.S.) 270; Barling v. Bank of British North America, 50 Fed. Rep. 260; Suydam . Broadnax, 14 Pet. (U. S.) 67; Union Bank v. Jolly, 18 How. (U.S.) 506; Hyde v. Stone, 20 How. (U. S.) 170; Payne v. Hook, 7 Wall. (U. S.) 425.
There is an analogous absurdity in the decision of the Supreme Court of the United States in Railway Company. Whitton, 13 Wall. (U. S.) 270, 286. The Legislature of Wisconsin gave a right of action for damages resulting in death, such as did not exist at common law, but gave it with the proviso that "such action shall be brought for a death caused in this State, and in some court established by the constitution and laws of the same.'
The administrator of one who had been killed through the alleged negligence of a railway company brought an action under this statute, in Wisconsin, in one of the State courts, and afterwards removed it to the Circuit Court of the United States, under the act empowering such removals, on the ground of prejudice or local influence: Act Cong. March 2, 1867; 14 U. S. Stats. at Large, 558. The action having proceeded to judgment in favor of the plaintiff in the Circuit Court of the United States, it was held that the court had jurisdiction, and that, although the statute which created the right of action contained the limitation that the action could take place only in the State courts, yet this was void in so far as it restricted the jurisdiction of the courts of the United States. Thus, the court annexed an extension to the statute, by a plain piece of judicial legislation.
required foreign insurance companies, as a condition precedent to receiving a license to do business in the State, to agree not to remove into the courts of the United States any actions brought against them in the State courts, and enacted that, on a violation of such agreement by the insurance company, it should "be the imperative duty of the Secretary of State to revoke its license." It was held by the Supreme Court of Wisconsin (1) that the statute was constitutional, and (2) that the Secretary of State might be compelled by mandamus to revoke the license of such a company, in a proper case under the statute, at the relation of any person interested.' This conclusion was denied in the Circuit Court of the United States for the Western District of Wisconsin, by Mr. District Judge Hopkins, who issued an injunction to restrain the Secretary of State from revoking the license; but his decision in a similar case was afterwards reversed by the Supreme Court of the United States."
§ 7468. Right of Removal on the Ground of Prejudice or Local Influence. A statute of the United States, enacted in 1867, provides that "when a suit is brought between a citizen of the State in which it is brought and a citizen of. another State, it may be so removed on the petition of the latter, whether he be plaintiff or defendant, filed at any time
1 State v. Doyle, 40 Wis. 175; 8. o. 22 Am. Rep. 692.
though unquestionably such a distrust exists, and, in some cases, on
"Hartford Fire Ins. Co. v. Doyle, good grounds. The real protection 3 Cent. L. J. 41.
Doyle v. Continental Ins. Co., 94 U. S. 535 (Bradley, Swayne, and Miller, JJ., dissenting). Compare Barron v. Burnside, 121 U. S. 186, where the preceding case is distinguished. It ought not to escape attention, especially in the case of a State of wide territorial limits, like the State of Wisconsin, that the enacting of laws of this kind by no means implies a local or popular distrust of the Federal judicatories in actions between citizens and foreign corporations, —
to the local citizens intended by such statutes is to prevent them from being dragged long distances from their homes to litigate controversies with foreign corporations, where the action has been originally brought in their own county. By forcing them to submit to a removal of the cause to a Circuit Court of the United States, sitting in a distant city, the expense and burden of the litigation is often increased to such an extent as to amount to a denial of justice to indigent citizens.
before the trial or final hearing of the suit, if, before or at the time of filing said petition, he makes and files in said State court an affidavit, stating that he has reason to believe and does believe that, from prejudice or local influence, he will not be able to obtain justice in such State court." Although this statute extended the right of removal to a "citizen," provided "he" should make a certain affidavit, yet, by analogy to the other Federal holdings that a corporation aggregate is a "citizen" for the purposes of Federal jurisdiction, it is held that the right of removal here given extends to corporations.2 One or two of the State courts hesitated at first upon this question, upon the difficulty that a corporation aggregate cannot make an affidavit. But the difficulty that a corporation aggregate can be referred to in a statute as a "citizen," and that the legislature can call such a body "he," and that the entity thus described as "he" has no capacity to take an oath, did not cause the Federal tribunals to hesitate; and the settled construction of the statute is, that it applies to corporations as well as to natural persons.
1 Act Cong. March 2, 1867; 14 U.S. Stat. at Large, 558; Rev. Stat. U. S., § 639, cl. 3.
'Burch v. Davenport &c. R. Co., 46 Iowa, 449; s. c. 26 Am. Rep. 150.
'Minnett v. Milwaukee &c. R. Co., 3 Dill. (U. S.) 460; Farmers' Loan &c. Co. v. Maquillan, 3 Dill. (U. S.) 379. In giving the opinion of the court in this case, Mr. Justice Miller says: "My impression in favor of the jurisdiction in this particular class of cases was so strong that I should have overruled the motion at once, but for the circumstance that a decision of the Court of Appeals of New York, and a decision of the Supreme Court of Minnesota, were produced, the former doubtfully, the latter positively, denying the corporations the right to remove cases under the act of March 2, 1867 (14 Stat. at Large, 550). I have con
It next became nec
sidered the opinions in those cases, and, with great respect for the courts whose judgments they pronounce, I think their views upon the subject are not sound, and that, not unnaturally, perhaps, they incline too much to narrow and cripple the Federal jurisdiction. The history of the State court decisions on the subject of Federal jurisdiction, from the case of Cohens v. Virginia, 6 Wheat. (U. S.) 264, shows that, if the State courts could have defined the limits of that jurisdiction, the fabric of Federal jurisprudence, as it exists to-day in this country, would have been shorn of its beauty and symmetry, and the system of its efficacy and usefulness." Ibid. 380. These observations are undoubtedly true. On the other hand it is equally true that if the courts of the United States are allowed, without restraint from Con
essary to settle how this incorporated "he" can make the affidavit of prejudice or local influence demanded by the statute. Of course, as a corporation can act only through its agents, it was necessary that some one should make the affidavit for it, and in order that the affidavit should be the affidavit of the incorporated "he" named in the statute, it was necessary that the person making it should be duly authorized to make it. There was also a difficulty in getting over the stumbling-block of interpretation found in the words 'stating that he has reason to believe and does believe." Who is the incorporated "he" that has reason to believe and does believe? Is it the president, the secretary, the treasurer, the manager, the retained attorney, the agent acting in the par
gress, to be the exclusive judges of
act of August 13, 1888, § 2, paragraphs 4, 5, and 6; 1 Supp. to Rev. Stat. U. S. (2d ed.), p. 612. Clause 4 states the conditions of citizenship as in the original act, and gives the right of removal to "any defendant"; whereas the statute, as originally enacted and embodied in the Revised Statutes of the United States, gave it to the non-resident citizen "whether he be plaintiff or defendant." Clause 5 of the statute of 1888 authorizes the United States court to remand the cause in respect of parties as to whom there is no prejudice or local influence, where no party will be prejudiced by a severance. Clause 6 makes the statute incongruous by providing that, at any time before the trial in the United States court of a cause which has been removed to the court from a State court on the affidavit "of any party plaintiff," etc., the court shall, on application of the other party, examine into the truth of the affidavit of removal, and remand the cause, unless it shall appear to the satisfaction of the court that the party will not be able to obtain jus. tice in the State court.