Page 104 U. S. 10
Even conceding that the company was once a Virginia corporation
so far as its original road in that state was concerned, the most
that can be said of it now is that, in common with all citizens of
the old state residing on the ceded territory, its citizenship was
transferred by the organization of West Virginia from the old state
to the new. Consequently, if it was once a corporation of Maryland
and Virginia, it is now a corporation of Maryland and West
Virginia. Any citizenship it may have had in Virginia has been
lost.
It is not contended that this Enabling Act gave the company a
right to lease another Virginia road and operate it as a lateral
road, nor that in running the leased road the company uses any of
the franchises conferred by the original grant. The present claim
is that by using the franchises of another Virginia corporation to
run its leased road, it made itself a corporation of Virginia for
all the purposes of that business, just as the lessor was and
is.
It is well settled that a corporation of one state doing
business in another is suable where its business is done if the
laws make provision to that effect. We have so held many times.
Lafayette Insurance Co. v.
French, 18 How. 404;
Railroad Company v.
Harris, supra; Ex parte Schollenberger, 96 U. S.
369. This company concedes that it was properly sued in
Virginia. What it asks is that, being sued there, it may avail
itself of the privilege it has under an act of Congress as a
corporation of Maryland, and remove into the proper court of the
United States exercising jurisdiction within Virginia a suit which
has been instituted against it by a citizen of the latter state.
The litigation is not to be taken out of Virginia, but only from
one court to another within that state. So that the single question
presented is whether, by taking a lease of the road of a Virginia
corporation, the Maryland corporation made itself also a
corporation of Virginia for all purposes connected with the use of
the leased property.
It is not denied that the Maryland company derived all its
power, so far as the operation of the Virginia road was concerned,
from the Virginia corporation, nor that in respect of the business
of that road, it must do just what was required of the Virginia
corporation by the laws of Virginia; but that
Page 104 U. S. 11
does not, in our opinion, make it a corporation of Virginia. It
may be sued in Virginia because, with the implied assent of that
state, it does business there, but, as we said substantially in
Schollenberger's case, the question of suability and
jurisdiction is not so much one of citizenship as of
finding. If a citizen of one state is
found, for
the purposes of the lawful service of judicial process, in another,
he may ordinarily be sued there. A citizen of Maine may be sued in
California if he happens to be there in person and the proper
officer serves him personally with the lawful process of a
California court. He is still a citizen of Maine although, in the
exercise of one of the privileges of a citizen of the United
States, he has been found in California. An individual may, without
asking permission of state authorities, do business where he
pleases, and if a citizen of one state, he is entitled to all the
privileges and immunities of citizens of the several states.
Const., art. 4, sec. 2. Not so with corporations. Their rights
outside the state under the authority of which they were created
depend primarily on their charters. If the charter allows it, they
may exercise their chartered privileges and carry on their
chartered business in any other state which, by express grant or by
implication, permits them to do so. They have no absolute right of
recognition in any other state than their own.
Paul v.
Virginia, 8 Wall. 168. And the state which
recognizes them can impose such conditions on its recognition as it
chooses, not inconsistent with the Constitution and laws of the
United States. If they are recognized and permitted to do business
without limitation, express or implied, they carry with them
wherever they go all their chartered rights, and may claim all
their chartered privileges which can be used away from their legal
home. Their charters are the law of their existence, and are taken
wherever they go. By doing business away from their legal residence
they do not change their citizenship, but simply extend the field
of their operations. They reside at home, but do business
abroad.
In this case, a Maryland corporation leased the railroad and the
franchises of a Virginia corporation. Neither state legislature
acted specially on the subject, so far as the record discloses. The
Maryland corporation assumed the right to take,
Page 104 U. S. 12
and the Virginia corporation to grant, the lease which lies at
the foundation of the rights of the parties. Under this lease,
possession was given and taken without objection from the
authorities of either state, and the Maryland corporation actually
uses the franchises of that of Virginia. The question therefore
presented to us is not one of
ultra vires. No complaint is
made that Maryland has never given its corporation the right to go
to Virginia and take a lease, nor that Virginia has never
authorized its corporation to grant such a lease. For all the
purposes of these cases, we must assume that the Maryland
corporation is rightfully using the leased road, and with the
consent of both states.
We can hardly believe if an individual, a citizen of a state
other than Virginia, went into that state and leased the property
of a Virginia corporation, to use as the corporation did, it would
be claimed that he made himself thereby a citizen of Virginia
within the meaning of the Constitution and laws of the United
States. Citizenship in this connection has a special signification.
All persons born or naturalized in the United States and subject to
the jurisdiction thereof are citizens of the United States and of
the state wherein they reside. Amend. 14, sec. 1. A corporation may
for the purposes of suit be said to be born where by law it is
created and organized, and to reside where, by or under the
authority of its charter, its principal office is. A corporation,
therefore, created by and organized under the laws of a particular
state and having its principal office there is, under the
Constitution and laws, for the purpose of suing and being sued, a
citizen of that state possessing all the rights and having all the
powers its charter confers. It cannot migrate nor change its
residence without the consent, express or implied, of its state,
but it may transact business wherever its charter allows unless
prohibited by local laws. Such has been for a long time the settled
doctrine of this Court. "It must dwell in the place of its
creation, and cannot migrate to another sovereignty, . . . but its
residence in one state creates no insuperable objection to its
contracting in another."
Bank of Augusta v.
Earle, 13 Pet. 519,
38 U. S. 520.
With a long line of authorities in this Court to the same effect
before us, we cannot hesitate to say, with all
Page 104 U. S. 13
due respect for the Court of Appeals of Virginia, that the
Maryland corporation, by taking from the Virginia corporation, with
the unconditional assent of Virginia, a lease of a railroad which
could only be operated by the use in Virginia of the corporate
franchises of the lessor, did not make itself a corporation of
Virginia, or part with any of the rights it had under the
Constitution and laws of the United States as a corporation of
Maryland. The State of Virginia has not granted to it any special
powers or privileges beyond allowing it to transact its corporate
business in Virginia. Its powers within the state come from its
Maryland charter and the Virginia corporation. That corporation had
certain franchises and privileges which it held by grant from its
state. These franchises and privileges were a species of property
which, we must presume for all the purposes of this case, it had
the right to allow the corporation of another state to use. The
Virginia authorities have impliedly assented to all that has been
done. This assent having been given and the contract entered into
between the companies, all Virginia can now require is that the
Maryland company, in carrying on its business under the contract
and using the franchises of the Virginia company, shall be subject
to all obligations which the charter imposes on that corporation.
The Maryland corporation simply occupies the position of a company
carrying on an authorized business away from its home, with the
consent of its own state and of that of the state in which its
business is done. For these reasons, we must hold that the Court of
Appeals erred in deciding that the removal of the suit to the
circuit court was properly refused, because the company, by taking
the lease and using the road in Virginia, became, for all the
purposes of that lease, a corporation of Virginia.
The only remaining question is whether the company can now claim
a reversal of the judgments below on account of this error, since
it does not appear that copies of the records in the state court
have been entered in the circuit court. The state court of original
jurisdiction directly decided, in accordance with the claims of the
several defendants in error, that upon the showing made, the
company was not entitled to a removal, but must remain and defend
the suits in that court.
Page 104 U. S. 14
It was conceded on the argument that if the judgment had been
rendered before the first day of the next term of the circuit court
of the United States, there could be a reversal if the case was in
fact removable. The position of the defendants in error seems to be
that as the company appeared and went on with the causes in the
state court after the next term in the circuit court, without
showing that the copies of the records had been entered in that
court, it in effect waived its right to a removal and submitted
itself again voluntarily to the jurisdiction of the state
court.
We have uniformly held that if a state court wrongfully refuses
to give up its jurisdiction on a petition for removal and forces a
party to trial, he loses none of his rights by remaining and
contesting the case on its merits.
Insurance
Company v. Dunn, 19 Wall. 214;
Removal
Cases, 100 U. S. 457;
Railroad Company v. Mississippi, 102 U.
S. 135. It is also a well settled rule of decision in
this Court that when a sufficient case for removal is made in the
state court, the rightful jurisdiction of that court comes to an
end and no further proceedings can properly be had there unless in
some form its jurisdiction is restored.
Gordon v.
Longest, 16 Pet. 97;
Kanouse v.
Martin, 15 How. 198;
Insurance Company v. Dunn,
supra; Railroad Company v. Mississippi, supra. The entering of
the copy of the record in the circuit court is necessary to enable
that court to proceed, but its jurisdiction attaches when, under
the law, it becomes the duty of the state court to "proceed no
further." The provision of the act of 1875 is in this respect
substantially the same as that of the twelfth section of the
Judiciary Act of 1789, and requires the state court, when the
petition and a sufficient bond are presented, to proceed no further
with the suit, and the circuit court, when the record is entered
there, to deal with the cause as if it had been originally
commenced in that court. The jurisdiction is changed when the
removal is demanded in proper form and a case for removal made.
Proceedings in the circuit court may begin when the copy is
entered. Such is clearly the effect of the cases of
Gordon v.
Longest and
Kanouse v. Martin, where it does not
appear that the record was ever entered in the circuit court. In
Insurance Company
Page 104 U. S. 15
v. Dunn and
Railroad Company v. Mississippi,
the records were entered, but no point was made of this in the
opinion. We are aware that in
Removal Cases, supra, and
Kern v. Huidekoper, 103 U. S. 485, it
is said in substance that after the petition for removal and the
entering of the record the jurisdiction of the circuit court is
complete, but this evidently refers to the right of the circuit
court to proceed with the cause. The entering of the record is
necessary for that, but not for the transfer of jurisdiction. The
state court must stop when the petition and security are presented,
and the circuit court go on when the record is entered there, which
is in effect docketing the cause. The question then is whether, if
the state court refuses to let go its jurisdiction and forces the
petitioning party to trial, he must, in order to prevent his
appearance from operating as a waiver, show to the state court that
he is not in default in respect to entering the record and
docketing the cause in the circuit court on the first day of the
next term following the removal.
As has just been seen, when the state court has once lost its
jurisdiction, it is prohibited from proceeding until in some way
jurisdiction has been restored. The right to remove is derived from
a law of the United States, and whether a case is made for removal
is a federal question. If, after a case has been made, the state
court forces the petitioning party to trial and judgment and the
highest court of the state sustains the judgment, he is entitled to
his writ of error to this Court if he saves the question on the
record. If a reversal is had here on account of that error, the
case is sent back to the state court with instructions to recognize
the removal and proceed no further. Such was in effect the order in
Gordon v. Longest, supra. The petitioning party has the
right to remain in the state court under protest, and rely on this
form of remedy if he chooses, or he may enter the record in the
circuit court and require the adverse party to litigate with him
there, even while the state court is going on. This was actually
done in
Removal Cases. When the suit is docketed in the
circuit court, the adverse party may move to remand. If his motion
is decided against him, he may save his point on
Page 104 U. S. 16
the record, and after final judgment bring the case here for
review if the amount involved is sufficient for our jurisdiction.
If in such a case we think his motion should have been granted, we
reverse the judgment of the circuit court and direct that the suit
be sent back to the state court to be proceeded with there as if no
removal had been had. If the motion to remand is decided by the
circuit court against the petitioning party, he can at once bring
the case here by writ of error or appeal for a review of that
decision, without regard to the amount in controversy.
Babbitt
v. Clark, 103 U. S. 606. If
in such a case we reverse the order of the circuit court to remand,
our instructions to that court are, as in
Relfe v. Rundle,
103 U. S. 222, to
proceed according to law, as with a pending suit within its
jurisdiction by removal. Should the petitioning party neglect to
enter the record and docket the cause in the circuit court in time,
we see no reason why his adversary may not go into the circuit
court and have the cause remanded on that account. This being done
and no writ of error or appeal to this Court taken, the
jurisdiction of the state court is restored and it may rightfully
proceed as though no removal had ever been attempted.
It is contended, however, that if the petitioner fails to enter
the record and docket the cause in the circuit court on the first
day of the next term, the jurisdiction of that court is lost and
there can be no entry on a subsequent day. Such we do not
understand to be the law. The petitioner must give security that he
will enter the record on that day, but there is nothing in the act
of Congress which prohibits the court from allowing it to be
entered on a subsequent day if good cause is shown. In
Removal
Cases, supra, we used this language:
"While the act of Congress requires security that the transcript
shall be filed on the first day of the next term, it nowhere
appears that the circuit court is to be deprived of its
jurisdiction if, by accident, the party is delayed until a later
day in the term. If the circuit court, for good cause shown,
accepts the transfer after the day and during the term, its
jurisdiction will, as a general rule, be complete and the removal
properly effected."
This was as far as it was necessary to go in that case, and in
entering, as we did then, on the
Page 104 U. S. 17
construction of the act of 1875, it was deemed advisable to
confine our decision to the facts we had then before us. Now the
question arises whether, if the petitioning party is kept by his
adversary, and against his will, in the state court and forced to a
trial there on the merits, he may, after having obtained in the
regular course of procedure a reversal of the judgment and an order
for the allowance of the removal, enter the cause in the circuit
court, notwithstanding the term of that court has gone by during
which, under other circumstances, the record should have been
entered. We have no hesitation in saying that in our opinion he
can. As has been already seen, the jurisdiction was changed from
one court to the other when the case for removal was actually made
in the state court. The entering of the record in the circuit court
after that was mere procedure, and in its nature not unlike the
pleadings which follow service of process, the filing of which is
ordinarily regulated by statute or rules of practice. The failure
to file pleadings in time does not deprive the court of the
jurisdiction it got though the service of process, but inexcusable
delay may be good ground for dismissing the cause for want of
prosecution. So here, if the petitioning party, without sufficient
cause, fails to enter the record and docket the cause, the suit may
be properly remanded for want of due prosecution under the removal;
but if sufficient cause is shown for the delay, there is nothing in
the statute to prevent the court from taking the case after the
first day of the term and exercising its jurisdiction. Clearly it
is within the judicial discretion of every court, on good cause
shown, to set aside a default in filing pleadings on a statutory
rule day and allow the omission to be supplied. This case seems to
be analogous to that. Undoubtedly promptness should be insisted on
by the courts of the United States, and no excuse should be
accepted for delay in entering a record after removal, unless it
amounts to a clear justification or a waiver by the opposite party.
It seems to us manifest that if the petitioning party is forced by
his adversary to remain in the state court until he can in a proper
way secure a reversal of the order which keeps him there, the
requirement of the law for entering the record in the circuit court
at any time before the reversal
Page 104 U. S. 18
actually takes place must be deemed to have been waived, and
that for all the purposes of procedure in that court the time when
the state court lets go its jurisdiction may be taken as the time
according to which the docketing of the cause is to take place.
Certainly the petitioning party ought not to be required to carry
on his litigation in two courts at the same time. He may do so if
he chooses, but if he elects to go on in the state court after his
petition for removal is disregarded, and take his chances of
obtaining a reversal of any judgment that may be obtained against
him because he was wrongfully kept there, he ought not to be
deprived of a trial in the proper jurisdiction because of the
unwarranted act of his adversary or of the state court.
The judgment of the Court of Appeals in each of these cases will
be reversed, and the causes remanded to the Supreme Court of
Appeals of Virginia with directions to reverse the judgments of the
circuit court of the county, and transmit the cases to that court
with instructions to vacate all orders and judgments made or
entered subsequently to the filing of the several petitions for
removal and approval of the bonds, and proceed no further therein
unless its jurisdiction be restored by the action of the circuit
court of the United States or this Court.
So ordered.