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Statement of the Case.
by the counsel for the defendant in error on the point of jurisdiction a brief statement of that question is here made, referring to the opinion for more full details.
The State of New Hampshire on the 23d day of June, 1835, incorporated seven persons as the Nashua and Lowell Railroad Corporation, with power to construct a railroad from Nashua to the boundary line of the State of Massachusetts. The State of Massachusetts, on the 16th of April, 1836, incorporated three of those seven persons as the Nashua and Lowell Railroad Corporation with power to construct a railroad from Lowell to form a junction with the portion of the railroad of that company lying within the State of New Hampshire. The State of Massachusetts, on the 10th of April, 1838, enacted that the stockholders of the New Hampshire company were thereby constituted stockholders of the Massachusetts company, and that the two corporations were thereby united into one corporation of the same name; the act to take effect when the legislature of New Hampshire should have passed a similar act, and the stockholders should have accepted those acts. The legislature of New Hampshire, on the 26th day of June, 1838, enacted that the two corporations were empowered to unite; and that, after the union, the property should be the joint property of the stockholders of the two corporations. The material parts of these several statutes are printed in the margin.'
"11. CHAPTER 37, NEW HAMPSHIRE LAWS, 1835.
AN ACT TO INCORPORATE THE NASHUA AND LOWELL RAILROAD
“ SECTION 1. That Jesse Bowers, Ira Gay, Daniel Abbot, Benjamin F. French, John M. Hunt, Peter Clark and Charles J. Fox, their associates, successors and assigns, be and hereby are constituted and made a corporation by the name of the Nashua and Lowell Railroad corporation;
SECT. 2. That said corporation be and hereby is empowered to locate, construct and keep in repair a railroad from any point in the southern line of the State to some convenient place in or near Nashua village in Dunstable, in such manner as they shall deem most expedient, ..
" SECT. 12. That said corporation be and hereby is authorized to extend said railroad from its termination at the southern line of this State into and through the Commonwealth of Massachusetts, to meet the Boston and
Statement of the Case.
This suit was brought in the Circuit Court of the United States for the District of Massachusetts by the Nashua and
Lowell Railroad, whenever said Commonwealth will empower said corporation so to do, with such powers, liabilities and restrictions as may be deemed expedient; and for this purpose said corporation may increase their capital stock and create new shares as said Commonwealth may authorize them to do."
“II. CHAPTER 249, MASSACHUSETTS LAWS, 1836.
"AN ACT TO ESTABLISH THE NASHUA AND LOWELL RAILROAD CORPORATION.
“ SECTION 1. That Jesse Bowers, Ira Gay and Daniel Abbot, their associates and successors, are hereby made a corporation by the name of the Nashua and Lowell Railroad Corporation, with all the powers and privileges, and subject to all the duties, liabilities and provisions contained in that part of the thirty-ninth chapter of the Revised Statutes, passed November the fourth, in the year one thousand eight hundred and thirtyfive, which relates to railroad corporations, and in the forty-fourth chapter of said Revised Statutes; and said corporation is hereby authorized and empowered to locate, construct and finally complete a railroad from Lowell, in the county of Middlesex, to form a junction with that portion of said Nashua and Lowell Railroad, lying within the State of New Hampshire; ”
“III. CHAPTER 96, MASSACHUSETTS LAWS, 1838.
“ AX ACT TO UNITE THE NASHUA AND LOWELL RAILROAD CORPORATIONS OF
MASSACHUSETTS AND NEW HAMPSHIRE.
" SECT. 1. The stockholders of the Nashua and Lowell Raiload Corporation, incorporated by the Legislature of the State of New Hampshire in the year one thousand eight hundred and thirty-five, are hereby constituted stockholders of the Nashua and Lowell Railroad Corporation, incorporated by the Legislature of this Commonwealth in the year one thousand eight hundred and thirty-six; and the said two corporations are hereby united into one corporation by the name of the Nashua and Lowell Railroad Corporation; and all the tolls, franchises, rights, powers, privileges and property granted or to be granted, acquired or to be acquired, under the authority of the said States, shall be held and enjoyed by all the said stockholders in proportion to their number of shares in either or both of said corporations.
“SECT. 2. The said stockholders shall hold their meetings, make their by-laws, appoint their officers and transact all their business as one corporation; provided, that one or more of the officers of said corporation shall be a resident in this Commonwealth, and one or more of them in the State of New Hampshire, on whom process against said corporation may be legally served, in either State, and that said corporation shall be held to
Statement of the Case.
Lowell Company as a corporation created by and a citizen of New Hampshire; and the jurisdictional question was, whether it was entitled to sue in that character.
answer in the jurisdiction where the service shall be made and the process is returnable.”
“ SECT. 5. The said corporation, so far as their road is situated in Massachusetts, shall be subject to the general laws of the State to the same extent as the Nashua and Lowell Railroad Corporation, established by its Legislature in the year one thousand eight hundred and thirty-six, would be if this act had not been passed.
“ SECT. 6. This act shall not take effect until the Legislature of the State of New Hampshire shall have passed an act similar to this, uniting the said stockholders into one corporation, nor until said acts have been accepted by the said stockholders at a meeting duly called for that purpose, at which meeting the said stockholders may ratify and confirin all or any of their former doings, and adopt them as the acts and proceedings of the said united corporation."
“ IV. CHAPTER 21, NEW HAMPSHIRE LAWS, 1838. "AX ACT TO UNITE TIIE VASIIUA AND LOWELL RAILROAD CORPORATIONS OF
MASSACHUSETTS AND NEW HAMPSHIRE AND FOR OTHER PCRPOSES. " SECTION 1. That the two corporations, under the name of the · Nashua and Lowell Railroad Corporation, one of which charters was granted by the Legislature of this State, the twenty-third day of June, one thousand eight hundred and thirty-five, and the other by the Legislature of the Commonwealth of Massachusetts, the sixteenth day of April, one thousand eight hundred and thirty-six, are hereby authorized, from and after the time when this act shall take effect, to unite said corporations; and all the tolls, franchises, rights, powers, privileges and property of the said two corporations shall be held and enjoyed by the stockholders in each and both, in proportion to their number of shares therein, and from and after the time said corporations shall be united, all property owned, acquired or enjoyed by either of said corporations shall be taken and accounted to he the joint property of the stockholders, for the time being, of said two corporations.
SECT. 2. That from and after the time said corporations shall be united, all the stockholders shall be entitled to the same notice, and shall enjoy the same right of voting; . . . proviiled always, that there shall be at least one officer in each State, who is an inhabitant thereof, on whom process against said corporation may be served, and that the books and registry of one corporation shall be taken to be the books and registry of the other corporation.”
"SECT. 6. That the said corporation, so far as their road is situated in this State, when united by virtue of the provisions of this act, shall be subject to the general laws of this State, to the same extent as said corporation would have been if this act had not been passed.
Argument for Appellee.
Mr. E. J. Phelps and Mr. Francis A. Brooks for appellant in support of the jurisdiction, and on the merits.
Mr. J. H. Benton, Jr., on the merits, and in opposition to the jurisdiction. On the latter point he said :
I. Plaintiff is clearly a corporation of both Massachusetts and New Hampshire. It was the intention of the legislatures of Massachusetts and New Hampshire to create a new corporation which should owe its existence to the acts of union in each State. Railroad Company v. Georgia, 98 U. S. 359; Memphis & Charleston Railroad v. Alabama, 107 U. S. 581.
The New Hampshire act provides that the original corporations “shall be one corporation by the name of the Nashua and Lowell Railroad Corporation.” The Massachusetts act provides that the “stockholders of the two corporations are hereby united into one corporation, by the name of the Nashua and Lowell Railroad Corporation.”
Each act speaks of the united corporation as one corporation, and provides that there shall be in each State at least one officer, an inhabitant thereof, on whom process against “said corporation may be served;" that the shares of any stockholder “in said company” shall be subject to attachment and execution.
Each provides that stockholders of the united corporation “shall hold their meetings, make their by-laws, appoint their officers and transact all their business as one corporation;" and that “said corporation shall be subject to the general laws of each State, so far as their road is situated therein."
The larger part of the road to be built by the united corporation was in Massachusetts, and the legislation of that State cannot possibly be treated as giving a mere license to the New Hampshire corporation to exercise in Massachusetts corporate powers conferred upon it by New Hampshire, as was held to
" SECT. 7. That after said corporations shall be united, according to the provisions of this act, they shall be one corporation, by the name of the Nashua and Lowell Railroad Corporation; and all the acts of said corporations, which are valid in said corporations severally, shall be valid in the united corporation.”
Argument for Appellee.
be the case in Pennsylvania Co. v. St. Louis, Alton &c. Railroad, 118 U. S. 290, 296; and in Goodlett v. Louisville Railroad, 122 U. S. 391, 410.
Besides, unless the Nashua and Lowell Railroad Corporation is one corporation in both States, the decree in this cause will not bind it in Massachusetts, unless it is made a party plaintiff, in which case the Circuit Court would have no jurisdiction. If the cause of action set out in the bill does not belong to the plaintiff as a corporation in both States, but to two distinct corporations by the same name, then it belongs to those corporations jointly, and either is a necessary party plaintiff with the other to any suit upon it.
It was “in truth a single corporation, with the powers of two." Covington &c. Bridge Co. v. Mayer, 31 Ohio St. 317, 325; Binney's Case, 2 Bland, 99, 147; Stute v. Northern Cent. Railroad, 18 Maryland, 193, 213; Quincy Bridge Co. v. Adams County, 88 Illinois, 615; Chicago &c. Railway v. Auditor General, 53 Michigan, 79; Mississippi Valley Co. v. Chicago &c. Railroad, 58 Mississippi, 846; State v. Metz, 32 N. J. Law, 199; Horne v. Boston & Maine Railroad, 62 N. H. 454.
The question of jurisdiction in this case is, therefore, simply whether a corporation existing under the laws of Massachusetts and New Hampshire, and which is a corporation in Massachusetts, can be treated in Massachusetts, for the purpose of giving jurisdiction to the United States Circuit Court for the District of that State, as not being a corporation of that State.
Stated in another form, the question is, Whether the shareholders of a corporation existing under the laws of two States, and having but one set of shareholders, can, for the purpose of giving jurisdiction to the Circuit Court for one of the States, be assumed to be all citizens of the other State ? To state this question, is to answer it in the negative, and it is thus answered by all the decisions of this court. Ohio & Mississippi Railroad v. Wheeler, 1 Black, 256 (1861); Railway Company v. Whitton, 13 Wall. 270 (1874); Muller v. Dows, 94 U. S. 444 (1876); and Memphis & Charleston Rail road v. Alabama, 107 U. S. 581 (1882).