Gerling v. Baltimore Ohio Co

Decision Date05 February 1894
Docket NumberNo. 67,67
PartiesGERLING v. BALTIMORE & OHIO R. CO
CourtU.S. Supreme Court

Danl. B. Lucas, for plaintiff in error.

John K. Cowen, for defendant in error.

Mr. Justice GRAY delivered the opinion of the court.

This was an action of trespass on the case, brought March 1, 1888, in the circuit court of Berkeley county, in the state of West Virginia, by John W. Martin against the Baltimore & Ohio Railroad Company, to recover damages in the sum of $10,000 for personal injuries caused to the plaintiff by the defendant's negligence at Bayview, in the state of Maryland, on May 22, 1887.

On April 12, 1888, the defendant filed in that court a petition, with proper affidavit and bond, for the removal of the case into the circuit court of the United States for the district of West Virginia, upon the ground that at the commencement of the suit, and ever since, the plaintiff was a citizen of West Virginia, and the defendant a corporation and citizen of Maryland. On April 24, 1888, the plaintiff was permitted by the state court, against the defendant's objection, to file an answer to the petition for removal, denying that the defendant was a nonresident corporation, and alleging that it was, for all the purposes of this suit, a resident of West Virginia, and therefore not entitled to remove the case; and the court, upon a hearing on that petition and answer, 'taking judicial notice of the statutes incorporating the defendant in Virginia and in this state, and being of opinion that said Baltimore & Ohio Railroad Company is not a nonresident corporation,' refused to allow the removal.

But the circuit court of the United States, on June 11, 1888, upon the production by the defendant of a duly-certified copy of the record of the above proceedings, ordered the case to be docketed in that court, and on July 23, 1888, ordered it to be removed into that court.

On December 13, 1888, the plaintiff filed in that court a plea (called in the record a 'plea in abatement') that it ought not to take further cognizance of the action, because, before and at the time of the removal, the defendant 'was, and is now, a resident of the district of West Virginia, and is therefore not entitled to remove said action' to that court. A demurrer to that plea was filed by the defendant, and sustained by the court. 'And thereupon,' as the record stated, 'the plaintiff moved to remand this action to the circuit court of Berkeley county, which motion the court overruled.'

The defendant then pleaded not guilty. Upon the issue joined on this plea, the case was tried by a jury, the plaintiff and other witnesses testified in his favor, a verdict was rendered for the defendant under instructions of the court, and judgment was rendered upon the verdict.

The plaintiff duly excepted to those instructions, and sued out this writ of error, which was entered in this court on January 13, 1890, together with an assignment of errors, in which the only error assigned to the sustaining of the demurrer to the plaintiff's plea, or to the denial of his motion to remand, was as follows: 'The circuit court erred in sustaining the demurrer of the said defendant in error to the plaintiff's plea in abatement, and in overruling the motion of the plaintiff in error to remand the said cause to the state court, whence it had been removed to said circuit court of the United States; thus deciding, both in sustaining said demurrer and in overruling said motion, that the Baltimore & Ohio Railroad Company was a nonresident of West Virginia, and entitled to remove.'

The other errors assigned were in rulings and instructions at later stages of the case, which it will not be necessary to consider.

At the present term of this court, the plaintiff's death was suggested, and Gerling, his administrator, appointed by the county court of Berkeley county in West Virginia, came in to prosecute in his stead; and the defendant moved to dismiss the writ of error, because an action for personal injuries abated by the death of the plaintiff.

It was argued, in behalf of the administrator, that the removal from the state court gave the circuit court of the United States no jurisdiction of this case, for two reasons: (1) That the Baltimore & Ohio Railroad Company was a resident corporation of the state of West Virginia; (2) that the application to the state court for removal was not made in time.

The consideration of this argument naturally takes precedence, because, if the courts of the United States never lawfully acquired jurisdiction of the case, they have no rightful power to determine any question of the liability of the defendant, or of the right of the original plaintiff in his lifetime, or of his administrator since his death, to maintain this action, but all such questions can only be determined in the courts of the state in which the action was brought; and, therefore, if the circuit court of the United States had no jurisdiction of the case, its judgment should be reversed, for want of jurisdiction, with directions to remand the case to the state court, without passing upon the right to maintain the action in a competent tribunal.

1. The act of March 3, 1887, c. 373, which was in force at the time of the removal of this case, authorized any civil action brought in a court of a state between citizens of different states, and in which the matter in dispute exceeded, exclusive of interest and costs, the sum or value of $2,000, to be removed into the circuit court of the United States 'by the defendant or defendants therein, being nonresidents of that state.' 24 Stat. 552. In order to be a 'nonresident of that state,' within the meaning of this statute, the defendant must be a citizen of another state, or a corporation created by the laws of another state. Machine Co. v. Walthers, 134 U. S. 41, 10 Sup. Ct. 485; Shaw v. Mining Co., 145 U. S. 444, 12 Sup. Ct. 935; Southern Pac. Co. v. Denton, 146 U. S. 202, 13 Sup. Ct. 44; Martin v. Snyder, 148 U. S. 663, 13 Sup. Ct. 706.

A railroad corporation created by the laws of one state may carry on business in another, either by virtue of being created a corporation by the laws of the latter state also, as in Railroad Co. v. Vance, 96 U. S. 450; Memphis & C. R. Co. v. Alabama, 107 U. S. 581, 2 Sup. Ct. 432; Clark v. Barnard, 108 U. S. 436, 2 Sup. Ct. 878; Stone v. Farmers' Co., 116 U. S. 307, 6 Sup. Ct. 334, 388, 1191; and Graham v. Railroad Co., 118 U. S. 161, 6 Sup. Ct. 1009; or by virtue of a license, permission, or authority, granted by the laws of the latter state, to act in that state under its charter from the former state. Railroad Co. v. Harris, 12 Wall. 65; Railroad Co. v. Koontz, 104 U. S. 5; Pennsylvania R. Co. v. St. Louis, etc., R. Co., 118 U. S. 290, 6 Sup. Ct. 1094; Goodlett v. Railroad Co., 122 U. S. 391, 7 Sup. Ct. 1254; Marye v. Railroad Co., 127 U. S. 117, 8 Sup. Ct. 1037. In the first alternative, it cannot remover into the circuit court of the United States a suit brought against it in a court of the latter state by a citizen of that state, because it is a citizen of the same state with him. Memphis & C. R. Co. v. Alabama, above cited. In the second alternative, it can remove such a suit, because it is a citizen of a different state from the plaintiff. Railroad Co. v. Koontz, above cited.

Whether the Baltimore & Ohio Railroad Company had the right to remove into the circuit court of the United States this action, brought against it by a citizen of West Virginia in a court of that state, therefore, depends upon the question whether this company was a corporation created by the laws of Maryland only, or by the laws of West Virginia also.

This company, as is admitted, was originally incorporated by the statute of Maryland of February 28, 1827, (1826, c. 123,) entitled 'An act to incorporate the Baltimore and Ohio Railroad Company,' by which subscriptions to its capital stock were to be received by commissioners therein appointed rights to subscribe for certain amounts of stock were reserved to the state of Maryland and to the city of Baltimore, and, as soon as a certain amount had been subscribed for, it was to become a corporation by the name of the Baltimore & Ohio Railroad Company, capable of purchasing, holding, and selling real and personal property, and of suing and being sued by that name, and to enjoy all the powers, rights, and privileges of a corporation. Its general meetings were to be held and derectors chosen annually in Baltimore, and the president chosen by the directors; and the president and directors were authorized to increase the capital stock, to declare dividends, and to construct and maintain a railroad from the city of Baltimore to the Ohio river, and to purchase or take property for this purpose, making compensation to the owners.

In support of the proposition that this company had no right to remove the case into the circuit court of the United States, several legislative acts and judicial decisions of Virginia and West Virginia were relied on, which require examination.

In West Virginia, statutes of that state, or of the parent state of Virginia, creating railroad corporations, or licensing and authorizing them to exercise their franchises within the state, are deemed public acts, of which the courts of the state take judicial notice, without proof. Hart v. Railroad Co., 6 W. Va. 336, 349-358; Mahany v. Kephart, 15 W. Va. 609, 624; Henen v. Railroad Co., 17 W. Va. 881, 899; Bank v. Macher, 18 W. Va. 271. Doubtless, therefore, such statutes must be judicially noticed by the circuit court of the United States, sitting within the state of West Virginia and administering its laws, and by this court on writ of error to that court. Drawbridge Co. v. Shepherd, 20 How. 227, 232.

By the statute of Virginia of March 8, 1827, c. 74, entitled 'An act to confirm a law, passed at the present session of the general assembly of Maryland, entitled 'An act to incorporate the Baltimore...

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