Marla Thomas v. Board of Trustees of the Ohio State University

• Decision Date: 14 November 1904
• Docket Number: No. 43,43
• Citation: 49 L.Ed. 160,195 U.S. 207,25 S.Ct. 24
• Parties: MARLA F. THOMAS and George Folsom v. BOARD OF TRUSTEES OF THE OHIO STATE UNIVERSITY
• Court: U.S. Supreme Court

195 U.S. 207

25 S.Ct. 24

49 L.Ed. 160

MARLA F. THOMAS and George Folsom

v BOARD OF TRUSTEES OF THE OHIO STATE UNIVERSITY.

No. 43.

Argued and submitted November 3, 1904.

Decided November 14, 1904.

Messrs. Lawrence Maxwell, Jr., and Joseph Olds for the Board of Trustees of the Ohio State University.

Messrs. J. E. Sater and L. F. Sater for Thomas and Folsom.

Mr. Justice Harlan delivered the opinion of the court:

This case is before us upon certified questions relating to the jurisdiction of the circuit court.

The suit is in equity, and the plaintiff is a citizen of Michigan. The defendants are George Folsom, a citizen of California, and the Board of Trustees of the Ohio State University.

The object of the bill was to effect the partition of certain lands claimed by the plaintiff and the defendant Folsom as tenants in common, but held adversely by the defendant board of trustees. The plaintiff sought to have the title determined as preliminary to partition.

The board of trustees appeared and demurred to the bill as not making a case entitling the plaintiff to any relief against it.

The demurrer was sustained, and the bill dismissed,—the decree reciting that neither the plaintiff nor the defendant Folsom had any title or interest in the lands described in the bill, or in the rents or profits thereof, but that the same belonged to the Board of Trustees of the Ohio State University. Folsom entered his appearance in circuit court, but made no defense, nor was any decree taken by default against him.

From that decree the plaintiff and the defendant Folsom prayed and perfected an appeal.

It is certified that the jurisdiction of the circuit court was wholly dependent upon diversity of citizenship, and that neither defendant objected in the circuit court that the case was not of equitable cognizance, or that the court, as a Federal court, was without jurisdiction to determine it. But in the circuit court of appeals Folsom insisted, among other things, that the circuit court 'had no cognizance of the cause because the requisite diversity of citizenship does not exist, the Board of Trustees of the Ohio State University not being a corporation of Ohio within the jurisdictional rule imputing to the members of that board citizenship of the state under whose law it is organized.'

The circuit court of appeals propound the following questions:

1. Does the bill sufficiently aver that the Board of Trustees of Ohio State University is a corporation of the state of Ohio, or does it aver facts which, in legal intendment, constitute said body a corporation of the state of Ohio, within the rule that a suit by or against a corporation in a court of the United States is conclusively presumed, for the purpose of litigation, to be one by or against citizens of the state creating the corporation?

2. If the said board of trustees be not such a corporation as is required by the jurisdictional rule referred to, may this suit be maintained against it as 'The Board of Trustees of the Ohio State University' without bringing the persons constituting the board before the court as defendants?

3. If the said board may sue or be sued in a Federal court by the name of 'The Board of Trustees of the Ohio State University,' although not constituting a corporation of the state of Ohio, within the jurisdictional rule referred to in the first question, do the facts stated on the face of the bill sufficiently show that the persons composing said board of trustees are citizens of Ohio, or should the court take notice of the law creating said board of trustees, and of other laws of Ohio defining the qualification of such trustees, and by legal intendments find that the persons constituting said board when this bill was filed were in fact citizens of Ohio, and that the requisite diversity of citizenship existed to give jurisdiction to the circuit court?

That the jurisdiction of a circuit court of the United States is limited in the sense that it has no jurisdiction except that conferred by the Constitution and laws of the United States; that a cause is presumed to be without its jurisdiction unless the contrary affirmatively appears; that such jurisdiction, or the facts upon which, in legal intendment, it rests, must be distinctly and positively averred in the pleadings, or should appear affirmatively and with equal distinctness in other parts of the record, it not being sufficient that jurisdiction may be inferred argumentatively; and that, for the purposes of suing and being sued in a circuit court of the United States, the members of a local 'corporation' are conclusively presumed to be citizens of the state by whose laws it was created, and in which alone the corporate body has a legal existence,—are propositions so firmly established that further discussion of them would be both useless and inappropriate. Brown v. Keene, 8 Pet. 112, 115, 8 L. ed. 885, 886; Louisville, C. & C. R. Co. v. Letson, 2 How. 497, 11 L. ed. 353; Marshall v. Baltimore & O. R. Co. 16 How. 314, 14 L. ed. 953; Lafayette Ins. Co. v. French, 18 How. 404, 405, 15 L. ed. 451; Covington Drawbridge Co. v. Shepherd, 20 How. 227, 15 L. ed. 896; Ohio & M. R. Co. v. Wheeler, 1 Black, 286, 296, 17 L. ed. 130, 133; Merchants' Ins. Co. v. Ritchie, 5 Wall. 541, 18 L. ed. 540; Robertson v. Cease, 97 U. S. 646, 648, 24 L. ed. 1057, 1058; National S. S. Co. v. Tugman, 106 U. S. 118, 120, 27 L. ed. 87, 88, 1 Sup. Ct. Rep. 58; King Bridge Co. v. Otoe County, 120 U. S. 226, 30 L. ed. 623, 7 Sup. Ct. Rep. 552; Parker v. Ormsby, 141 U. S. 81, 35 L. ed. 654, 11 Sup. Ct. Rep. 912; Continental Nat. Bank v. Buford, 191 U. S. 120, 48 L. ed. 119, 24 Sup. Ct. Rep. 54.

It is equally well established that when jurisdiction depends upon diverse citizenship the absence of sufficient averments or of facts in the record showing such required diversity of citizenship is fatal and cannot be overlooked by the court, even if the parties fail to call attention to the defect, or consent that it may be waived. Mansfield, C. & L. M. R. Co. v. Swan, 111 U. S. 379, 28 L. ed. 462, 4 Sup. Ct. Rep. 510; Martin v. Baltimore & O. R. Co. 151 U. S. 673, 689, 38 L. ed. 311, 317, 14 Sup. Ct. Rep. 533; Powers v. Chesapeake & O. R. Co. 169 U. S. 92, 98, 42 L. ed. 673, 675, 18 Sup. Ct. Rep. 264. As late as in Minnesota v. Northern Securities Co. 194 U. S. 48, 62-3, 48 L. ed. 870, 877, 878, 24 Sup. Ct. Rep. 598, 601, we said, both parties insisting upon the jurisdiction of the circuit court: 'Consent of parties can never confer jurisdiction upon a Federal court. If the record does not affirmatively show jurisdiction in the circuit court, we must, upon our own motion, so declare and make such order as will prevent that court from exercising an authority not conferred upon it by statute.'

So that the fact stated in the certificate, that neither party in the circuit court objected to its jurisdiction, is of no consequence.

Two other cases illustrating the above rules may be specially referred to.

In Chapman v. Barney, 129 U. S. 677, 682, 32 L. ed. 800, 801, 9 Sup. Ct. Rep. 426, 428, which was a suit in the circuit court for the northern district of Illinois, by the United States Express Company against a citizen of Illinois, the declaration alleged that the company was organized under and by virtue of the laws of New York, and was a citizen of that state. The court said: 'On looking into the record we find no satisfactory showing as to the citizenship of the plaintiff. The allegation of the amended petition is, that the United States Express Company is a joint-stock company, organized under a law of the state of New York, and is a citizen of that state. But the express company cannot be a citizen of New York, within the meaning of the statutes regulating jurisdiction, unless it be a corporation. The allegation that the com- pany was organized under the laws of New York is not an allegation that it is a corporation In fact, the allegation is, that the company is not a corporation, but a joint-stock company,—that is, a mere partnership. And, although it may be authorized by the laws of the state of New York to bring suit in the name of its president, that fact cannot give the company power, by that name, to sue in a Federal court. The company may have been organized under the laws of the state of New York, and may be doing business in that state, and yet all the members of it may not be citizens of that state. The record does not show the citizenship of Barney or of any of the members of the company.'

In Great Southern Fire Proof Hotel Co. v. Jones, 177 U. S. 449, 456, 457, 44 L. ed. 842, 845, 20 Sup. Ct. Rep. 690, 693, the bill alleged that the plaintiffs Jones and others were members of a limited partnership association, doing business, by their firm name, under the authority of a Pennsylvania statute, and that such association was a citizen of that state. Although the Constitution of Pennsylvania provided that the term 'corporation,' as used in a certain article of that instrument, should be construed as including all joint-stock companies or associations having any of the powers or privileges of corporations not possessed by individuals or partnerships, and although the supreme court of Pennsylvania had held that it would not be improper to call a limited partnership, created under its statutes, a quasi corporation, having some of the characteristics of a corporation, this court, without considering the merits of the case, said: 'When the question relates to the jurisdiction of a circuit court of the United States as resting on the diverse citizenship of the parties, we must look, in the case of a suit by or against a partnership association, to the citizenship of the several persons composing such association. . . . That a limited partnership association created under the Pennsylvania statute may be described as a 'quasi corporation,' having some of the characteristics of a corporation, or as a 'new artificial...