into a foreign State (either by building its own road or by leasing another road already built) and to carry on its business there, the railroad company does not become a corporation of that State. 13 In the same way where a bridge company chartered by Kentucky was forbidden to organize until Ohio passed an act enabling it to do business in that State, it was held (after the passing of the enabling act) to be a corporation of Kentucky alone.14 If the enabling act goes further, and permits the foreign corporation to enjoy within the State all the powers, rights and franchises conferred upon it by its charter, even this does not create it a domestic corporation. 15

13 Baltimore & O. R. R. v. Harris, 12 Wall. 65, 20 L. ed. 354; Martin v. B. & O. R. R., 151 U. S. 673, 38 L. ed. 311; St. Louis & S. F. Ry. v. James, 161 U. S. 545, 40 L. ed. 802; Williams v. Missouri, K. & T. Ry., 3 Dill. 267, Fed. Cas. No. 17,728; State Treasurer v. Auditor General, 46 Mich. 224; Illinois C. R. R. v. Sanford, 75 Miss. 862, 23 So. 355; Phillipsburg Bank v. Lackawanna R. R., 27 N. J. L. 206; Dennistoun v. New York & N. H. R. R., 1 Hilt. (N. Y. C. P.) 62. The contrary opinion prevailed in Virginia and West Virginia with regard to the Baltimore & Ohio Railroad, which had been authorized to extend its road into Virginia. Baltimore & O. R. R. v. Gallahue, 12 Grat. (Va.) 655; Baltimore & O. R. R. v. Wightman, 29 Grat. (Va.) 431; Baltimore & O. R. R. v. Noell, 32 Grat. (Va.) 394; Goshorn v. Ohio County, 1 W. Va. 308; Baltimore & O. R. R. v. Supervisors, 3 W. Va. 319. The principal point in those cases, however, was the subjection of the railroad to the laws of the State; and the result can probably be supported in all the cases. To the same effect see Alabama G. S. R. R. v. Fulgham, 87 Ga. 263, 13 S. E. 649.

14 Covington v. Covington Bridge Co., 10 Bush (Ky.), 69.

15 Pennsylvania R. R. v. St. Louis, A. & T. N. R. R., 118 U. S. 290, 30 L. ed. 83; Goodlett v. Louisville & N. R. R., 122 U. S. 391, 30 L. ed. 1230; Louisville, N. A. &. C. Ry. v. Louisville Tr. Co., 174 U. S. 552, 43 L. ed. 108 (semble); Goodloe v. Tennessee &c. R. R., 117 Fed. 348; Martin v. Mobile & O. R. R., 7 Bush (Ky.), 116; State v. Mutchler, 42 N. J. L. 461; State Board of Assessors v. Morris & E. R. R., 49 N. J. L. 193, 219, 7 Atl. 826; Daniel v. Gold Hill Min. Co., 28 Wash. 411, 68 Pac. 884.

In Railroad v. Peoples, 31 Oh. S. 537, it was held that a foreign railroad company, operating a domestic railroad by permission of the legislature, which provided that it might sue and be sued like a domestic corporation, was subject to garnishment as a resident. The court said in the course of its opinion, but obviously obiter, that it was to be deemed a domestic corporation.

If a foreign corporation complies with a statute requiring it to file a copy of its charter with the secretary of state before doing business, it does not thereby become a domestic corporation; nor does it do so by complying with the requirement of keeping a set of books within the State.17

16

But it is entirely within the power of the second State to reincorporate the foreign corporation, thus making it a corporation of both States.

"Instead of merely licensing a foreign corporation to operate a railroad or to transact any other business within its borders, a State may, for reasons of its own, adopt the foreign corporation by creating it a domestic corporation with the same franchises and powers that it exercises in the State which originally created it, or with powers that are less or more extensive." 18 Whether the second State has chosen to do this in any particular case is a matter of interpretation.19

"It may not be easy in all such cases to distinguish between the purpose to create a new corporation which shall owe its existence to the law or statute under consideration, and the intent to enable the corporation already in existence under the laws of another State to exercise its functions in the State where it is so received. . . . To make such a company a corporation of another State, the language used must imply creation or adoption in such form as to confer the power usually exercised over corporations by the State or by the legislature, and such as a State corporation owes to its creator. The mere grant of privileges or powers to it as an existing

16 St. Louis & S. F. Ry. v. James, 161 U. S. 545, 40 L. ed. 802; Chicago, I. & N. P. R. R. v. Minnesota & N. W. R. R., 29 Fed. 337; Rust v. United States Waterworks Co., 70 Fed. 129.

17 Liverpool, &c. Ins. Co. v. Assessors, 44 La. Ann. 760, 11 So. 91; Ry. v. Harrison, 73 Tex. 103.

18 Thayer, Circuit Judge, in Missouri Pac. Ry. v. Meeh, 69 Fed. 753, 759. 19 Goodlett v. Louisville & N. R. R., 122 U. S. 391, 406, 30 L. ed. 1230; Blackburn v. Selma &c. R. R., 2 Flip. 525, Fed. Cas. No. 1467; Goodloe v. Tennessee &c. R. R., 117 Fed. 348.

corporation, without more, does not do this, and does not make it a citizen of the State conferring such powers." 20

If the enabling act provides that the foreign corporation "shall be a corporation" of the enabling State, and shall possess as large powers as are possessed by certain corporations of the State, the act is one of incorporation, and the foreign corporation becomes a domestic one.21 An act authorizing a foreign railroad company to purchase the franchise and road of a domestic company, and to enjoy all the rights and privileges and to be subject to the duties and liabilities of that company makes it a domestic corporation.22 So where by statute a foreign corporation wishing to carry on business within the State must first file a copy of its charter, whereupon it shall become a domestic corporation, it of course becomes such a corporation at once upon filing its charter; 23 and if such a corporation has done business in the State it will be presumed to have complied with the law, and therefore to be a domestic corporation. 24

§ 774. Nature of the rechartered corporation.

As has been seen, the corporation of each State is in its origin independent of the other; and yet in many ways this double corporation is the same body in the two States. It has for instance been held that where the legislature of a State adopts a foreign corporation as a corporation of its own

20 Miller, J., in Pennsylvania R. R. v. St. Louis, A. & T. H. R. R., 118 U. S. 209, 30 L. ed. 83.

21 Indianapolis & S. L. R. R. v. Vance, 96 U. S. 450, 24 L. ed. 752; Memphis & C. R. R. v. Alabama, 107 U. S. 581, 27 L. ed. 518; Uphoff v. Chicago, S. L. & N. O. R. R., 5 Fed. 545; Granger's L. & H. Ins. Co. v. Kamper, 72 Ala. 325; McGregor v. Erie Ry., 35 N. J. L. 115; Layden v. Knights of Pythias, 128 N. C. 546, 39 S. E. 47.

22 Clark v. Barnard, 108 U. S. 436, 27 L. ed. 780; Graham v. Boston, H. & E. R. R., 118 U. S. 161, 30 L. ed. 196; Angier v. East T. V. & G. R. R., 74 Ga. 634.

23 James v. St. Louis & S. F. Ry., 46 Fed. 47.

24 Young v. South Tredegar Iron Co., 85 Tenn. 189, 2 S. W. 202. See Illinois B. & L. Assoc. v. Walker, (Tenn. Ch.) 42 S. W. 197. !

State, there is no need of an acceptance of this charter or of a separate organization; the existing organization of the foreign corporation was adopted bodily. So where a bridge corporation was created by precisely similar acts of Pennsylvania and New Jersey, neither to take effect till the other act was passed, it was held that the capital stock and property belonged in its entirety to each corporation, and was taxable as a unit in New Jersey. The court said:

26

"The prosecutors are a private corporation of this State, but of a peculiar character. So far as their corporate authority in Pennsylvania is concerned, that is foreign to this State, and vice versa. The private corporation of this State is blended with the foreign corporation of the other State. Their mode of organization blends the foreign element or quality with the domestic here. Yet for all the purposes of law, it is a corporation of this State. It is also in Pennsylvania. It is not a corporation of Pennsylvania, owing its existence, as a body, to that State, and merely recognized for certain purposes here. It is no more created in that State than in this. It was not formed by the independent act of either State. It has a dual organization, and when organized it becomes capable of acting as one body in either State, and liable to be treated as such. Its objects of taxation could be reached either here or in Pennsylvania, or both.”

The idea here expressed, though logically difficult, is quite in accordance with the commercial conception of such a corporation. This mercantile conception is constantly struggling for recognition in the decisions; and the result is an certainty and inconsistency of legal theory, which now tends toward the legal conception of the corporations as distinct,

25 Blackburn v. S. M. & M. R. R., 2 Flip. 525, Fed. Cas. No. 1467; Louisville Tr. Co. v. Louisville & N. R. R., 75 Fed. 433. But see Phila. W. & B. R. R. v. Kent County R. R., 5 Houst. (Del.) 127, where it was held in such case that if the corporation did nothing under its new charter it did not become a corporation of the second State.

26 State v. Metz, 32 N. J. L. 199.

now toward the mercantile conception of identity and dual organization.

§ 775. Legal result of rechartering.

The most important and the most firmly established result of the commercial theory of quasi-identity of the two corporations is that they may have a single stock book and body of stockholders, may hold meetings in either State to bind the corporation in all States, and may at such meetings elect officers who can act as such in all the States which have chartered the corporation. This doctrine, first put forward in the case of Bridge Company v. Mayer, 27 was firmly established by the Supreme Court of the United States. 28 A mortgage of the property of a railroad company created by the laws of Massachusetts, Rhode Island, Connecticut and New York had been authorized at a stockholders' meeting held in New York; and this vote was held sufficient to bind the property of the company everywhere. The court said:

"The Boston, Hartford and Erie Company, therefore, though made up of distinct corporations, chartered by the legislatures of different States, had a capital stock which was a unit, and only one set of shareholders, who had an interest, by virtue of their ownership of shares of such stock, in all of its property everywhere. In its organization and action, and the practical management of its property, it was one corporation having one board of directors; though in its relations to any State, it was a separate corporation, governed by the laws of that State as to its property therein. It, therefore, had a domicil in each State, and the corporators or shareholders could, in the absence of any statutory provision to the contrary, hold meetings and transact business in any one State, so as to bind the corporation in respect to its property everywhere."

In other ways the same doctrine has been applied. So where a corporation was chartered by both North Carolina 27 31 Oh. St. 317, 325.

28 Graham v. Boston, H. & E. R. R., 118 U. S. 161, 30 L. ed. 196.