Wilson v. Southern Ry. Co.

• Decision Date: 02 August 1900
• Citation: 36 S.E. 701,64 S.C. 162
• Parties: WILSON v. SOUTHERN RY. CO.
• Court: South Carolina Supreme Court

36 S.E. 701

64 S.C. 162

WILSON v. SOUTHERN RY. CO.

Supreme Court of South Carolina

August 2, 1900

Appeal from common pleas circuit court of Fairfield county; O. W Buchanan, Judge.

Action by John Wilson, administrator of the estate of Noah Y Wilson, deceased, against the Southern Railway Company. From a judgment in favor of plaintiff, defendant appeals. Reversed.

Pope J., dissenting.

B. L Abney, for appellant.

G. T. Graham and Ragsdale & Ragsdale, for respondent.

JONES J.

This action was brought in the court of common pleas for Fairfield county for damages for the alleged negligent killing of plaintiff's intestate by the defendant corporation, and resulted in a judgment in favor of the plaintiff for $4.500. A petition and bond for the removal of the cause to the circuit court of the United States for the district of South Carolina on the ground of diverse citizenship was duly filed, and on the call of the case for trial the court (Hon. O. W. Buchanan, presiding) was asked to proceed no further, except to pass an order for removal. This was refused, and notice of appeal and exceptions was immediately served. After judgment on the verdict of the jury, exceptions were taken to the order refusing to remove, to the ruling compelling defendant to proceed to trial, and to the judgment and rulings of the court.

The first question presented is whether there was error in refusing to remove the cause to the United States court. The plaintiff was a citizen of South Carolina, and alleged in the complaint that the defendant was a corporation under the laws of this state. The petition for removal alleged that the defendant, at the commencement of the suit and at the filing of the petition, was a citizen and resident of the state of Virginia being a corporation created under the laws of that state. It is not disputed that the defendant was originally created a corporation under the laws of Virginia, and thereafter complied with the act of the general assembly of this state approved March 19, 1896, 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." This act was construed, in connection with section 8, art. 9, of the constitution, in the case of Railway Co. v. Tompkins, 48 S.C. 52, 25 S.E. 982, wherein the court, speaking by Judge J. D. Witherspoon, said: "A state, by its legislature, may impose upon foreign corporations, which seek to come within its limits to conduct their business, the condition that they shall be subjected to the duties and obligations of domestic corporations; in short, that they shall be, when so acting within the territorial limits of the state, domestic corporations, for the purpose of jurisdiction. The question whether the legislature of a state has adopted and domesticated a corporation created by another state is in any case purely a question of legislative intent. 6 Thomp. Corp. § 7890; Murfree, Foreign Corp.§ 455. It was competent for the legislature of this State to provide by the act under consideration for the adoption of foreign corporations as domestic corporations, without violating the section of the constitution above quoted [section 8, art. 9]. The title of the act under consideration, and the third section thereof, clearly show that such was the intention of the legislature. Under the third section of said act, a foreign corporation complying with the provisions of said act ipso facto becomes a domestic corporation, enjoying the rights and subject to the liabilities of domestic corporations as fully as if it were originally created under the laws of this state." In that case it was also held that the Southern Railway Company had complied with said statute. Thereafter, in the case of Mathis v. Railway Co., 53 S.C. 257, 31 S.E. 240, this court held that the said Southern Railway Company, having become a domestic corporation by compliance with said act, was not entitled to the benefit of those provisions of the act of congress of the United States governing the removal of causes from the state courts to the United States circuit court because of diverse citizenship. We have been induced to review the case of Mathis v. Railway Co., supra, and, after careful consideration, have reached the conclusion that it is not in harmony with the recent decisions of the United States supreme court, by which this court must be controlled on questions of this kind. The Mathis Case was supposed to be in harmony with the decision in Memphis & C. R. Co. v. Alabama, 2 Sup. Ct. 432, 27 L.Ed. 518, wherein it seemed to hold that the Memphis & Charleston Railroad Company, previously incorporated in Tennessee, and afterwards made an Alabama corporation by the statutes of Alabama, could not remove into the circuit court of the United States a suit brought against it in Alabama by a citizen of Alabama. But this court failed to observe the distinction between the creation of a new corporation out of natural persons, and the mere adoption of a foreign corporation as a domestic corporation for local purposes. A corporation is indisputably presumed to be composed of citizens of the state creating it, and for purposes of federal jurisdiction the citizenship of its corporators is imputed to the corporation. In the case of Railway Co. v. James, 16 S.Ct. 627, 40 L.Ed....