SECTION.

ARTICLE III.-REMOVAL OF CAUSES.

317. Status as Foreign Company.

318. Loss of Status as Foreign Company.

319. Removal under Act of March 3, 1887.

320. Application-Affidavit.

§ 317.

Status as Foreign Company.-But a corporation, by doing business in, a foreign State and becoming liable to suit there, both in State and Federal courts, does not lose its right to claim, for the purposes of Federal jurisdiction, a citizenship in the State by which it was created. Consequently when sued in the foreign State by a citizen of that jurisdiction, it may, if it see fit, remove the cause into the Federal court.' Nor does the foreign company, by filing its articles of incorporation with the secretary of State, in accordance with the statute admitting it to do business, or otherwise complying with the statutory conditions, or subjecting itself to the visitorial power of the State, thereby lose its status as a foreign corporation. The fact that it comes into the local

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1 Railroad Co. v. Koontz, 104 U. S. 5, reversing s. c. sub-nom. Baltimore, etc. R. Co. v. Wightman, 29 Gratt. 431; Railway Co. v. Whitton, 13 Wall. 270; Wilkinson v. Delaware, etc. R. Co., 22 Fed. Rep. 353; Hatch v. Chicago, etc. R. Co., 6 Blatchf. 105; Baltimore, etc. R. Co. v. Cary, 28 Ohio St. 208; Western Union Tel. Co. v. Dickinson, 40 Ind. 444.

2 See ante, §§ 57-58.

3 Chicago, etc. R. Co. v. Minnesota, etc. R. Co., 29 Fed. Rep. 337. See to the same effect, Stevens v. Insurance Co., 41 N. Y. 149; Holden

State under special enabling acts of the legislature, instead of under the general rule of comity, will not make it a domestic company,' unless such acts have effect to confer a corporate privilege upon the foreign company under the laws of the local State. If such franchise is conferred, the company is equally a citizen of both States, and, of course, cannot claim a removal in an action with a citizen of the local State.' And even where an enabling act of the legislature of Tennessee was entitled "An act to incorporate the Louisville and Nashville Railroad Company," but the act itself nowhere contained terms conferring corporate powers upon the company, but simply authorized it to acquire a right of way and construct a track in the State, it was held that the company did not lose its right of removal when sued in a State court in Tennessee.' As we shall see hereafter it is simply a question of legislative intent whether a foreign company is adopted as a domestic company or is simply licensed as a foreign company to do business in the State." § 318. Loss of Status as Foreign Company.— The right of removal, where the Federal jurisdiction arises out of the citizenship of the parties, depends upon their status at the time the petition for removal was filed, and the subsequent consolidation of a defendant foreign corporation, with another corporation within the State, whereby it becomes a

v. Putnam F. Ins. Co., 46 N. Y. 1; Kranshaar v. New Haven Steamboat Co., 7 Robt. (N. Y.) 356; Hobbs v. Manhattan Ins. Co., 56 Me. 417; Morton v. Mutual Ins. Co., 105 Mass. 141.

1 Williams v. Missouri, etc. R. Co., 3 Dill. 267; Railroad Co. v. HarCompare Railroad Co. v. Koontz, 104 U. S. 5.

ris, 12 Wall. 65.

2 Post, Ch. X.

3 Callahan v. Louisville, etc. R. Co., 11. Fed. Rep. 536.

domestic company within that State, will not affect the pre-existing right of removal.'

§ 319. Under this statute a further question has arisen as to the right of removal into the Federal courts, as to which there is a want of uniformity among the decisions. The second section of the act authorizes the removal of "any other suit of a civil nature, at law or in equity, of which the Circuit Courts of the United States are given jurisdiction by the preceding section." It was held under this statute by the Circuit Court for the Northern District of California in County of Yuba v. Pioneer Gold M. Co.,' in an opinion by SAWYER, J., in which MR. JUSTICE FIELD and JUDGE SABIN concurred, that a foreign corporation, sued in a State court in a district of a State other than that from which it received its charter, cannot have a removal into the Federal court, because the case is not one of which the Circuit Courts are given jurisdiction. A different view was taken by JUDGE SHIRAS of the Northern District of Iowa, in Fales v. Chicago, etc. R. Co., where he held that the provisions of section 1 of the Act of March 3, 1887, as to the place of bringing suit, by original process in the United States Circuit Court, do not apply to the question of jurisdiction on removal of causes from the State courts; that Federal jurisdiction under the statute rests upon two general grounds, diverse citizenship and subject-matter; and that it is to such provisions that the language quoted above from the second section, "of which the Circuit Courts of the United States are given

Removal under Act of March 3, 1887.—

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1 Chicago R. Co. v. Minnesota & N. W. Co., 29 Fed. Rep. 337.

2 32 Fed. Rep. 183.

332 Fed. Rep. 673.

jurisdiction," must be taken to refer; and that a corporation, when sued in a State court of a State other than that of its creation may, if the other jurisdictional facts exist, remove the cause into the Federal court.

§320. Application-Affidavit.-The affidavit of prejudice or local influence, required under the Act of 1867,' when on behalf of a corporation, has been held to be properly made by the president, or manager, or other proper, officer, or by some person authorized to control the case. The authority of the person assuming to represent the company by making the affidavit must be made to appear.

1 U. S. Rev. St. § 639, subd. 3.

2

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2 Dillon Rem. of Causes, § 127; Anon. 1 Dill. 298, note; Trust Co. v. Maquillan, 3 Dill. 379; Minett v. Milwaukee, etc. R. Co., 3 Dill. 460.

3 Mahone v, Manchester, etc. R Co., 111 Mass. 72; Quigley v. Central Pac. R. Co., 11 Nev. 350.

ARTICLE IV.-STATE STATUTES REQUIRING WAIVER OF THE RIGHT TO INVOKE FEDERAL JURISDICTION.

SECTION.

325. Strife for Jurisdiction Between Federal and State Courts. 326. Statutory Waiver of Right of Removal.-View of the State Courts.

327. Such Waiver Cannot be Required-View of the Federal Courts. 328. But a Foreign Company's License may be Revoked.

329. 330.

Revocation of License-Federal View.

Same-Barron v. Burnside.

331. Same-Doyle v. Continental Insurance Co.

332. Conclusion: Right of Removal a Constitutional Privilege. 333. Scope of These Decisions.

§ 325. and State Courts. The tendency of the Federal courts, in conformity with the habit of all courts, in passing upon jurisdictional questions, to apply the maxim, ampliare jurisdictionem, and resolve every doubt in favor of the jurisdiction, is distinctly apparent in the cases cited and discussed in the preceding sections, as well as in other which are not pertinent to this subject. This tendency, made effective by the commanding position of the Federal courts in the jurisprudence of the country, has had the effect of greatly enlarging the jurisdiction of those courts. The views of the State judiciary are made apparent in a line of cases which seek to resist this tendency by a more narrow and rigid construction of the laws which vest the Federal

Strife for Jurisdiction Between Federal