Wilson v. Southern Ry. Co

• Citation: 64 S.C. 162,41 S.E. 971
• Parties: WILSON v. SOUTHERN RY. CO.
• Decision Date: 08 May 1902
• Court: United States State Supreme Court of South Carolina

41 S.E. 971

64 S.C. 162

WILSON

v.SOUTHERN RY. CO.

Supreme Court of South Carolina.

May 8, 1902.

FOREIGN CORPORATIONS—REMOVAL OF CAUSES.

A railroad company incorporated under the lat7s of another state is a nonresident of South Carolina for the purposes of removal of causes to a federal court, though it has complied with the requirements of Act March 19, 1896, providing that thereupon such a corporation shall become a domestic corporation, with all the rights and liabilities thereof.

Gary, A. J., Pope, J., and Townsend, Circuit Judge, dissenting.

Petition for rehearing granted. Affirmed.

For former opinion, see 36 S. E. 701.

JONES, J. For reasons stated in an opinion prepared by me in the case of Calvert v. Railway Co., 41 S. E. 963, which was heard with this case, and stated also in an opinion in this case, and reported herewith, on its original hearing, I think the circuit court committed reversible error in refusing to remove the cause to the federal court, and in proceeding with the trial. Under this view, the other questions presented by the exceptions do not properly arise and need not be considered.

Judgment reversed.

McIVER, C. J., and ALDRICH, Circuit Judge, concur.

WATTS, Circuit Judge (concurring). The question here being a federal question, the state court is bound to follow the decision thereon by the United States supreme court, the tribunal invested with power to finally determine such questions; and under my construction of the decisions of that court in the case of Railway Co. v. James, 161 U. S. 545, 16 Sup. Ct. 621, 40 L. Ed. 802, and Louisville, N. A. & C. R. Co. v. Louisville Trust Co., 174 U. S. 552, 19 Sup. Ct. 817, 43 L. Ed. 1081, and other cases quoted by Mr. Associate Justice JONES in his opinion in Calvert v. Railway Co., supra, I cannot do otherwise than concur in the opinion of Mr. Justice JONES. At the same time, I concur in so much of the opinion of Mr. Justice GARY which states that we are bound either to follow the principles announced by our supreme court in State v. Tompkins, 48 S. C. 49, 25 S. E. 982, or it should be overruled. My opinion is that these opinions quoted supra will have the effect of overruling the Tompkins Case, and that case will necessarily be overruled when properly brought before the court.

GARY, A. J. (dissenting). This is an action by the administrator of the estate of Noah Y. Wilson, deceased, a citizen of Lexington county, state of South Carolina, for damages arising from the alleged negligent killing of the deceased by the defendant, at Winnsboro, S. C, a station on the railroad of the defendant, and resulted in a judgment in favor of the plaintiff for $4,500. The corporate existence of the defendant is thus alleged in the complaint: "(2) That the defendant, the Southern Railway Company, is a corporation created and existing under the laws of this state, and was at the time hereinafter mentioned controlling and operating, as owner thereof, a railroad known as the Charlotte, Columbia & Augusta Railroad (a corporation duly created under the laws of this state), extending from Charlotte, in the state of North Carolina, through the state of South Carolina to the city of Augusta, in the state of Georgia, and haying stations along said railroad in the county of Fairfield, in the state of South Carolina, for the transaction of business; and also has, in the city of Columbia, S. C, offices where it transacts and manages its business; and the defendant owned and operated, and now owns and operates, the locomotives, cars, and other appurtenances of said railroad." The complaint also alleges that the defendant violated the ordinance of the town of Winnsboro making it a misdemeanor "for any person or persons to run, or cause to be run, any train of cars through the town of Winnsboro at a greater rate of speed than six (6) miles per hour."

The defendant answered the complaint as follows: "For the first defense: (1) Denies each and every allegation therein contained except so much thereof as is hereinafter admitted. (2) Alleges that it is, and was at the time of the commencement of this action and at the times hereinafter mentioned, a corporation duly chartered and organized under and by the laws of the state of Virginia, and a citizen thereof, with authority, under its charter, to purchase and lease railroads, both inside and outside the state of Virginia. (3) That on Or about the 10th day of July, 1894, the defendant purchased the Charlotte, Columbia & Augusta Railroad, at a foreclosure sale under decree of foreclosure and sale rendered in a suit in the United States circuit court for the Fourth circuit in the district of South Carolina, upon a mortgage made by said the Charlotte, Columbia & Augusta Railroad Company of said railroad; that said Charlotte, Columbia & Augusta Railroad was a line of railway extending from the city of Charlotte, in the state of North Carolina, through the state of South Carolina to the city of Augusta, in the state of Georgia, and a connecting link in a through line of railway owned, controlled, and operated by defendant, having termini in different states, and as such constituted part of the machinery whereby defendant carried commerce between the states; and said railroad is now owned, controlled, and operated by defendant as one of the connecting links in the said through line of railway of this defendant company. (4) That among the laws of the state of South Carolina, under and by virtue of which defendant purchased and is now operating the aforesaid railroad in the state of South Carolina, is an act of the general assembly of said state entitled 'An act to declare the terms on which foreign corporations may carry on business and own property in the state of South Carolina, ' approved December 20, 1893 (21 St. at Large, p. 409), and defendant alleges that on the ——day of July, 1894,

ft fully complied with the terms and conditions of said act, and has since said time so complied, (o) That on the——day of January, 1S97, this defendant did file in the office of the secretary of state of the state of South Carolina a copy of its charter, authenticated in the manner directed by law for the. authentication of the statutes of the state of Virginia, under whose laws it was chartered and organized, and did further, prior to the —— day of July, 1899, and prior to the alleged injury to the plaintiffs intestate, cause a copy of said charter to be recorded in the office of the register of mesne conveyances in the counties of said state in which it was carrying on its business; that said acts were done in compliance with the act of the general assembly of South Carolina, entitled 'An act to provide the manner in which railroad companies, incorporated under the laws of other states or countries, may become incorporated in this state, ' approved March 19, 1896; but defendant alleges that by such acts it did not deprive itself of the right as a citizen of the state of Virginia to remove causes and actions brought against it by the citizens of South Carolina in the courts of this state to the United States circuit courts sitting in said states under the act of congress in such case made and provided, nor did such acts done by it deprive such federal courts of the jurisdiction to hear and determine such causes when so removed." The answer also set up as a second defense that the...