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Argument for Appellee.

198 U.S.

service on the corporation of the bill of complaint and writ of subpoena by the service thereof upon Joseph H. Emery, on or about the thirteenth day of December, 1904. The complainant has appealed directly to this court from the order of the Circuit Court setting aside the service of the subpœna.

Mr. Noah C. Rogers for appellant:

The defendant is subject to the jurisdiction of the New York court by the provision in its articles of incorporation fixing its principal place of business there. People v. Geneva College, 5 Wendell (N. Y.), 211; Attorney General v. Oakland Co. Bank, 1 Walker C. L. (Mich.) 90, 97.

Having made it one of the conditions of its creation that its principal place of business should be in the city, county and State of New York, it will not be heard now to deny this jurisdiction. The defendant has not amended its charter, revoked the agency of its treasurer or withdrawn its place of business to another jurisdiction. Canada Southern R. Co. v. Gebhard, 109 U. S. 527, 537.

The service of the writ of subpoena on the defendant's treasurer was sufficient to give the court jurisdiction. Am. Locomotive Co. v. Dickson Co., 117 Fed. Rep. 972; McCord Lumber Co. v. Doyle, 97 Fed. Rep. 22; Conn. Mut. Life Ins. Co. v. Spratley, 172 U. S. 602; Merchants' Mfg. Co. v. Grand Trunk Ry. Co., 13 Fed. Rep. 358.

Mr. Benjamin N. Cardozo for appellee:

The defendant has no domicil or abode in the State of New York; it is not engaged in business in that State; and the service of the subpoena on its treasurer was ineffective to bring it into court. Conley v. Mathieson Alkali Works, 190 U. S. 406; Goldey v. Morning News, 156 U. S. 518; Construction Co. v. Fitzgerald, 137 U. S. 106; Geer v. Mathieson Alkali Works, 190 U. S. 429; Caledonian Coal Co. v. Baker, 196 U. S. 444; Sharkey v. Indiana &c. Ry. Co., 186 U. S. 479; Wabash Ry. Co. v. Brow, 164 U. S. 271; In re Keasbey, 160 U. S. 221; St. Clair v. Cox,

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106 U. S. 350; Stock Exchange v. Board of Trade, 125 Fed. Rep. 463; Martin v. Asphalt Co., 130 Fed. Rep. 394; McGillin v. Claflin, 52 Fed. Rep. 657; Good Hope Co. v. Fencing Co., 22 Fed. Rep. 635.

The cases which attribute controlling force to the designation of the place of business, as contained in the certificate of incorporation, have relation only to the question of the situs of the corporation within the State of its origin. They have no bearing upon its situs without that State. Western Transportation Co. v. Scheu, 19 N. Y. 408; Galveston R. R. v. Gonzales, 151 U. S. 496.

The question in issue is not a question of the jurisdiction of the court below within the meaning of section 5 of the act of March 3, 1891, and an appeal directly from the Circuit Court cannot be sustained. Courtney v. Pradt, 196 U. S. 89; Bache v. Hunt, 193 U. S. 523; Louisville Trust Co. v. Knott, 191 U. S. 225, 232; Blythe v. Hinckley, 173 U. S. 501; Mex. Cent. Ry. Co. v. Eckman, 187 U. S. 429.

The question that the Circuit Court decided is not one as to the jurisdiction of the Federal judiciary. That the suit is cognizable in the Circuit Court of the United States for the Southern District of New York has neither been disputed by the appellee nor denied by the court below. The complainant is a citizen of the State of New York, and a resident of the Southern District of New York; the defendant is a citizen of the State of West Virginia. Shaw v. Quincy Mining Co., 145 U. S. 444. Indisputably, therefore, there exists that diversity of citizenship which confers jurisdiction of the cause on the Federal courts. The trouble is that the defendant has not been served with process. An attempt has been made to bring it into court by service of the subpoena on an agent, and the sole question is whether that service was effective. In passing on that question, the court has been governed, not by any consideration peculiar to the jurisdiction of the Circuit Courts, but by considerations of general jurisprudence, applicable, as this court has declared, to all tribunals,

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The Circuit Court has certified no question for review. It has not disputed its jurisdiction of the subject matter of the cause. It has not suggested that the parties, if properly brought before it, are beyond its competence, or are rendered immune from prosecution in the Circuit Courts. It has merely held that the defendant has not yet been served with process. That is not a question of jurisdiction within the meaning of the statute.

The order should be affirmed or the appeal dismissed.

MR. JUSTICE PECKHAM, after making the foregoing statement, delivered the opinion of the court.

It is objected, in the first place, by the appellee that the appellant had no statutory right to appeal directly to this court from the order setting aside the service of the subpœna. It is asserted that the case does not involve the jurisdiction of the court below within the meaning of section 5 of the act of March 3, 1891, inasmuch as the jurisdiction of the Circuit Court as a Federal court is not questioned, the jurisdiction being denied upon grounds alike applicable to any other judicial tribunal, state or Federal, under the same circumstances. This case is, however, on that point governed by that of Board of Trade v. Hammond Elevator Co., decided this day (ante p. 424), where it is. held that the order is reviewable by this court under the section above mentioned.

Regarding the case as properly here, the question is whether the service made upon the treasurer of the appellee corporation was a valid service upon the corporation itself. We think it was not. It is perfectly apparent that the corporation was, at the time of the service on the treasurer, doing no business whatever within the State of New York, and that it had never done any business there since it was incorporated in the State of West Virginia. While we have lately held that, in the case of a foreign corporation, the service upon a resident director of the State where the service was made was a good service

198 U. S.

Statement of the Case.

where that corporation was doing business within that State, Pennsylvania Lumbermen's &c. Co. v. Meyer, 197 U. S. 407, yet such service is insufficient for a court to acquire jurisdiction over the corporation where the company was not doing any business in the State, and was situated like this company at the time of the service upon the treasurer. Conley v. Mathieson Alkali Works, 190 U. S. 406.

The order of the Circuit Court was right, and is

Affirmed.

LOUISVILLE AND NASHVILLE RAILROAD COMPANY 1. WEST COAST NAVAL STORES COMPANY.

CERTIOF RI TO THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT.

No. 225. Submitted April 25, 1905.-Decided May 29, 1905.

A common carrier may agree with such other carrier as it may choose to forward beyond its own line goods it has transported to its terminus; and, if it has adequate terminal facilities at a sea port, sufficient for all freight destined for that place, it is not obliged to allow other and competing carriers to load and discharge at a wharf owned by it and erected for facilitating the transportation of through freight to points beyond that place.

The fact that a wharf is built by a railroad company on what might be the extension of a public street, under permissions of the municipality, does not, in the absence of express stipulations, make it a public wharf, or affect the company's right of sole occupancy, or power of regulation, thereof.

CERTIORARI to the Circuit Court of Appeals for the Fifth Circuit to review a judgment of that court affirming one in favor of the West Coast Naval Stores Company (hereinafter called the plaintiff), against the Railroad Company (hereinafter called the defendant), for damages for refusing to permit the plaintiff to use the wharf of defendant at Pensacola for the

Statement of the Case.

198 1. S.

transportation of plaintiff's property, as stated in the declara

tion.

The action was brought in the Circuit Court of the United States for the Northern District of Florida.

The plaintiff's declaration contains two counts, which are substantially the same, and it is therein averred that the plaintiff is a citizen of Florida and the defendant is a citizen of Kentucky, and that the latter is a common carrier, and carries goods into Pensacola over its railroad, and among them the goods of the plaintiff. The course of business between the two companies has been for the plaintiff to obtain transportation of its turpentine and rosin from its yard near Pensacola, and its warehouse in that city, by means of a switch, built for that purpose by the defendant, to defendant's main line, and thence to the wharf of defendant (which plaintiff alleged was a public wharf), by means of the cars and upon the railroad of the defendant. The wharf extended into the bay of Pensacola, and was used by defendant (and by persons bringing goods over the defendant's railway to and into Pensacola) for the purpose of shipping such goods from the wharf to vessels destined for other ports. After defendant had transported the goods of the plaintiff to the wharf of defendant, the plaintiff had been accustomed to ship to other ports by vessels, with the managers of which plaintiff had contracts of carriage; that in the midst of the prosecution of such business defendant had notified plaintiff that it would thereafter refuse, and it did thereafter refuse, to allow plaintiff to transport its goods to the wharf for the purpose of there loading them on such vessels as above mentioned, and refused to permit the wharf and railway of defendant to be used in the prosecution of plaintiff's business, in so far as the prosecution would involve the use of the vessels chosen by the plaintiff for the shipment of the goods from Pensacola, to the damage of the plaintiff, as set forth in the declaration.

The defendant filed several pleas to this declaration and the plaintiff demurred to them, which demurrer was overruled

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