On writ of error or appeal, the first and fundamental question
is that of jurisdiction, first of this Court and then of the court
from which the record comes. This question the court is bound to
ask and answer for itself, even when not otherwise suggested, and
without respect to the relation of the parties to it.
A limited partnership, doing business under a firm name and
organized under the Act of the General Assembly of Pennsylvania
approved June 2, 1874, entitled
"An act authorizing the formation of partnership associations in
which the capital subscribed shall alone be responsible for the
debts of the association, except under certain circumstances,"
is not a corporation within the rule that a suit by or against a
corporation in a court of the United States is conclusively
presumed, for the purposes of
Page 177 U. S. 450
the litigation, to be one by or against citizens of the state
creating the corporation. It is not sufficient that the association
may be described as a
quasi-corporation or as a "new
artificial person." The rule does not embrace a new artificial
person that is not a corporation.
Under the circumstances disclosed by the record, the circuit
court should allow an amendment of the pleadings upon the subject
of the citizenship of the parties, and the case should proceed to a
final hearing on the merits in the event the pleadings as amended
show a case within the jurisdiction of the court.
The case is stated in the opinion of the court.
MR. JUSTICE HARLAN delivered the opinion of the Court.
The bill in this suit, commenced in the Circuit Court of the
United States for the Southern District of Ohio, Eastern Division,
describes the plaintiffs Benjamin F. Jones, George M. Laughlins,
Henry A. Laughlins, Jr., and Benjamin F. Jones, Jr., as
"members of the limited partnership association doing business
under the firm name and style of Jones & Laughlins, Limited,
which said association is a limited partnership association
organized under an Act of the General Assembly of Pennsylvania
approved June 23d [2d], 1874, entitled 'An Act Authorizing the
Formation of Partnership Associations in Which the Capital
Subscribed Shall Alone be Responsible for the Debts of the
Association, except under Certain Circumstances,'"
"and who 'Have Their Office and Principal Place of Business in
the City of Pittsburgh,' and which association is 'a Citizen of the
Pennsylvania.'"
Penn.Laws, 1874, p. 271.
The defendant first named in the bill is the Great Southern Fire
Proof Hotel Company, a corporation of the State Ohio, and some of
the defendants are corporations and citizens of states other than
the State of Pennsylvania.
The remaining defendants are thus described in the bill:
"Taylor, Beall & Company is a partnership doing business
in
Page 177 U. S. 451
the City of Columbus and State of Ohio, the individual partners
thereof being William D. Taylor, James P. Beall, and William J.
Keever."
"Sturgeon, Ford & Company is a partnership doing business in
the City of Columbus and State of Ohio, the individual partners
thereof being unknown to your orators."
"Meacham & Wright is a partnership doing business in the
City of Columbus and State of Ohio, the individual partners thereof
being Floras D. Meacham and Frank S. Wright."
"Sosman & Landis is a partnership of Chicago, Illinois,
doing business in the State of Ohio, the names of the individual
partners thereof being unknown to your orators."
"Dundon & Bergin is a partnership doing business in the City
of Columbus, State of Ohio, the individual partners thereof being
Thomas J. Dundon and Matthew J. Bergin."
"H. C. Johnson & Company is a partnership doing business in
the State of Ohio, the names of the individual partners thereof
being unknown to your orators."
"Schoedinger, Fearn & Company is a partnership doing
business in the State of Ohio, the individual partners thereof
being F. O. Schoedinger, W. A. Fearn, and J. R. Dickson."
"L. Hiltgartner & Sons is a partnership doing business in
the City of Columbus, State of Ohio, the names of the individual
partners thereof being unknown to your orators."
The nature of the case made by the bill is as follows:
By written agreement between Jones & Laughlins, Limited, and
W. J. McClain, dated December 13, 1894, the former agreed, upon
certain terms, to furnish structural steel for use in the erection
of the Great Southern Hotel at Columbus, for the construction of
which McClain had previously contracted with the Great Southern
Fire Proof Hotel Company. Under the above contract, Jones &
Laughlins, Limited, shipped and furnished to McClain structural
steel of the value of $43,296.74. All of that sum was paid by
McClain except $11,410.02, which was due to the plaintiffs with
interest from January 28, 1896.
On the 11th day of August, 1896, McClain executed a deed of
assignment for the benefit of his creditors. And on the 21st day of
April, 1896, within four months after the above materials
Page 177 U. S. 452
were delivered to McClain, Jones & Laughlins, Limited, filed
with the recorder of Franklin County, Ohio, an affidavit containing
an itemized statement of the amount and value of such materials.
The object of the filing was to conform to the provisions of
sections 3184 (as amended April 13th, 1894, 91 Ohio Laws, 135), and
3185 of the Revised Statutes of Ohio, both sections relating to
mechanic's liens, and thereby obtain, in behalf of Jones &
Laughlins, Limited, for the amount due them, a lien upon the hotel
and the opera house connected with it, as well as upon the land on
which they stood.
After stating that the defendants each claim to have some
interest in the property in question as lienholders or otherwise,
the exact nature and extent of which was unknown to the plaintiff,
the relief asked was: 1. That the defendants be required to answer
and fully set forth their respective interests in the property, and
failing to do so that they be barred from asserting any claim
thereto. 2. That a receiver be appointed to collect rents. 3. That
the plaintiff's demand be declared a valid and subsisting lien on
the property. 4. That all the liens be marshalled, the premises
sold, and the proceeds distributed.
The Great Southern Fire Proof Hotel Company demurred generally
to the bill as insufficient.
The defendants Sosman & Landis filed their answer and
cross-bill, claiming a lien upon the property for a balance due
under a contract made between them and McClain pursuant to which
they furnished scenery, stage work, and fixtures for the
improvements contemplated by the contract between McClain and the
hotel company. To that cross-bill a demurrer was also filed.
The cause was heard in the circuit court upon the demurrers, the
only question argued being the constitutionality of the Ohio
statute of April 13, 1894. That court sustained the demurrers and
dismissed the bill and cross-bill upon the ground that the
provisions of the mechanic's lien law of Ohio, under which the
plaintiffs and cross-plaintiffs proceeded, were unconstitutional.
79 F. 477.
Upon appeal to the circuit court of appeals, the decree of
Page 177 U. S. 453
the circuit court was reversed, the former court holding that
the statute of Ohio in question was not void. 86 F. 370. The hotel
company then applied for and obtained this writ of certiorari.
The bill rests the jurisdiction of the circuit court upon the
ground of the diverse citizenship of the parties. But was the case
as presented by the record one of which the circuit court of the
United States could take cognizance by reason of diversity of
citizenship? When this question was suggested at the argument,
counsel responded that no objection had been urged to the
jurisdiction of that court. But the failure of parties to urge
objections of that character cannot relieve this Court from the
duty of ascertaining from the record whether the circuit court
could properly take jurisdiction of this suit. In
Mansfield
&c. Railway Co. v. Swan, 111 U. S. 379,
111 U. S. 382,
the Court, after observing that the jurisdiction of a circuit court
fails unless the necessary citizenship affirmatively appears in the
pleadings or elsewhere in the record,
Grace v. American Central
Insurance Co., 109 U. S. 278,
109 U. S. 283;
Robertson v. Cease, 97 U. S. 646,
said:
"The rule, springing from the nature and limits of the judicial
power of the United States, is inflexible and without exception,
which requires this Court, of its own motion, to deny its own
jurisdiction, and, in the exercise of its appellate power, that of
all other courts of the United States, in all cases where such
jurisdiction does not affirmatively appear in the record on which,
in the exercise of that power, it is called to act. On every writ
of error or appeal, the first and fundamental question is that of
jurisdiction, first of this Court, and then of the court from which
the record comes. This question the court is bound to ask and
answer for itself even when not otherwise suggested, and without
respect to the relation of the parties to it. This rule was adopted
in
Capron
v. Van Noorden, 2 Cranch 126, decided in 1804,
where a judgment was reversed, on the application of the party
against whom it had been rendered in the circuit court, for want of
the allegation of his own citizenship which he ought to have made
to establish the jurisdiction which he invoked. This case was cited
with approval by Chief
Page 177 U. S. 454
Justice Marshall in
Brown v. Keene, 8 Pet.
112."
These rules have been recognized and applied in numerous cases.
*
We are of opinion that the plaintiff, as a limited partnership
association, was not entitled to invoke the jurisdiction of the
circuit court. It was not alleged to be, nor could it have alleged
that it was, a corporation in virtue of the statute of Pennsylvania
under which, according to the averments of the bill, it was
organized. In
Lafayette Ins. Co. v.
French, 18 How. 404,
59 U. S. 405,
which was an action brought by citizens of Ohio in the Circuit
Court of the United States for the District of Indiana, the
declaration described the defendant as the "Lafayette Insurance
Company, a citizen of the State of Indiana." This Court said:
"This averment is not sufficient to show jurisdiction. It does
not appear from it that the Lafayette Insurance Company is a
corporation, or if it be such, by the law of what state it was
created. The averment that the company is a citizen of the State of
Indiana can have no sensible meaning attached to it. This Court
does not hold that either a voluntary association of persons, or an
association into a body politic, created by law is a citizen of a
state within the meaning of the Constitution. And therefore if the
defective averment in the declaration had not been otherwise
supplied, the suit must have been dismissed."
The case of
Chapman v. Barney, 129 U.
S. 677,
129 U. S. 682,
is decisive of the present question. That was an action in the
circuit court of the United States by the United States Express
Company. This 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
Page 177 U. S. 455
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 company 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. They are not shown to be citizens of some
state other than Illinois.
Grace v. American Central Ins.
Co., 109 U. S. 278,
109 U. S.
283, and authorities there cited. For these reasons, we
are of opinion that the record does not show a case of which the
circuit court could take jurisdiction."
The case of
Express Co. v. Kountze
Bros., 8 Wall. 342,
75 U. S. 351,
to which attention is called by a supplementary brief, does not
announce a different rule. The declaration in that case, singularly
enough, described the defendant company as a "foreign corporation,
formed under and created by the laws of the State of New York."
Looking at the allegations of the pleadings, and there being no
evidence to the contrary, this Court held that the averment as to
the citizenship of the defendant was sufficient, observing:
"It is alleged that the United States Express Company, the
defendant in the suit, is a foreign corporation formed under and
created by the laws of the State of New York. The obvious meaning
of this allegation is that the defendant is a citizen of the State
of New York."
It has been suggested that the plaintiffs are entitled to sue,
and may be sued, by their association name. 1 Brightly's Purdon's
Digest, Pa. (12th ed.) 1088, Title Joint Stock Companies, § 16. But
the capacity to sue and be sued by the name of the association does
not make the plaintiffs a corporation within the rule that a suit
by or against a corporation in its corporate
Page 177 U. S. 456
name in a court of the United States is conclusively presumed to
be one by or against citizens of the state creating the
corporation.
Louisville, Cincinnati &
Charleston Railroad Co. v. Letson, 2 How. 497;
Ohio & Miss. R. Co. v.
Wheeler, 1 Black 286;
Steamship Co. v.
Tugman, 106 U. S. 118,
106 U. S. 120.
The rule that, for purposes of jurisdiction and within the meaning
of the clause of the Constitution extending the judicial powers of
the United States to controversies between citizens of different
states, a corporation was to be deemed a citizen of the state
creating it has been so long recognized and applied that it is not
now to be questioned. No such rule, however, has been applied to
partnership associations, although such associations may have some
of the characteristics of a corporation. 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.
Nor can we accede to the suggestion that this question of
jurisdiction is affected by the clause of the Constitution of
Pennsylvania providing that the term "corporations," as used in
article XVI of that instrument,
"shall be construed to include all joint-stock companies or
associations having any of the powers or privileges of corporations
not possessed by individuals or partnerships."
Const.Pa. art. XVI, § 13. The only effect of that clause is to
place the joint-stock companies or associations referred to under
the restrictions imposed by that article upon corporations, and not
to invest them with all the attributes of corporations.
We have not been referred to any case in the Supreme Court of
Pennsylvania which distinctly places limited partnership
associations, created under the statutes of that state, on the
basis of corporations. "Such an association," that court said in
Coal Co. v. Rogers, 108 Pa. 147, 150, "is not technically
a corporation. Yet it has many of the characteristics of one," and
"it may not be improper to call such an association a
quasi-corporation." In
Hill v. Stetler, 127 Pa.
145, 161, referring to the Act of June 2, 1874, the court said that
it provided for the
Page 177 U. S. 457
creation of "a new artificial person to be called a joint-stock
association, having some of the characteristics of a partnership
and some of a corporation."
In
Carter v. Producers' Oil Co. Ltd., 182 Pa. 551,
573-574, which involved the validity of a rule adopted by a limited
partnership association organized under the Pennsylvania statute of
June 2, 1874, and its supplements, and which rule prohibited any
person who acquired the capital stock of a member from exercising
the privileges of a member unless he was elected as such, the court
said:
"We cannot assent to the plaintiff's claim that the defendant
company is a corporation and restricted, in the adoption of bylaws,
rules, and regulations for its government, to such as it is within
the power of the latter to prescribe. It may be conceded that the
defendant company has some of the qualities of a corporation, but
it is nevertheless a partnership association, governed by the
statutes and articles under which it was organized and the rules
and regulations it may prescribe in execution of the power with
which the statutes have invested it."
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 person," is not a sufficient
reason for regarding it as a corporation within the jurisdictional
rule heretofore adverted to. That rule must not be extended. We are
unwilling to extend it so as to embrace partnership
associations.
We have not overlooked the case of
Andrews Bros. Co. v.
Youngstown Coke Co., 86 F. 585, in which the Circuit Court of
Appeals for the Sixth Circuit, speaking by Judge Lurton, held that
limited partnership associations organized under the Pennsylvania
statute were corporations within the jurisdictional requirement of
diverse citizenship. For the reasons stated, we are unable to
concur in the view taken by that court.
We therefore adjudge that, as the bill does not make a case
arising under the Constitution and laws of the United States, it
was necessary to set out the citizenship of the individual members
of the partnership association of Jones & Laughlins, Limited,
which brought this suit.
Page 177 U. S. 458
Another question as to jurisdiction arises on the record. The
citizenship of the members of the several partnerships that are
named as defendants does not appear from the pleadings or
otherwise. An allegation as to the state in which those firms were
doing business is not sufficient to show the citizenship of the
individual partners. The relief sought is the marshaling of all the
lien debts on the hotel and the opera house of the Great Southern
Fire Proof Hotel Company, the sale of the property, and the
distribution of the proceeds among the parties according to their
respective rights. As no allusion was made to this latter at the
argument before us, we do not now express any opinion upon the
question whether the citizenship of the individuals composing the
defendant partnerships doing business in Ohio is material to the
jurisdiction of the circuit court. We leave that to be determined
by the court below if an application be made to amend the pleadings
as to the citizenship of the parties.
Without considering the merits of the case, we are constrained
to reverse the judgments of the circuit court of appeals and of the
circuit court and remand the cause for further proceedings
consistent with this opinion.
Under the circumstances, the plaintiffs should be allowed, upon
application, to amend the bill upon the subject of the citizenship
of the parties. If the amendment shows a case within the
jurisdiction of the circuit court, the parties should be permitted
to proceed to a final hearing; otherwise, the bill should be
dismissed at the plaintiffs' costs without prejudice to another
suit in a court of competent jurisdiction.
Reversed.
*
Hancock v. Holbrook, 112 U.
S. 229,
112 U. S. 231;
Thayer v. Life Asso., 112 U. S. 717,
112 U. S. 720;
Ayers v. Watson, 113 U. S. 594,
113 U. S. 598;
King Bridge Co. v. Otoe County, 120 U.
S. 225,
120 U. S. 226;
Metcalf v. Watertown, 128 U. S. 586,
128 U. S. 587;
Morris v. Gilmer, 129 U. S. 315,
129 U. S. 325;
Chapman v. Barney, 129 U. S. 677,
129 U. S. 681;
Stevens v. Nichols, 130 U. S. 230;
Graves v. Corbin, 132 U. S. 571,
132 U. S. 590;
Parker v. Ormsby, 141 U. S. 81,
141 U. S. 83;
Martin v. B. & O. R. Co., 151 U.
S. 673,
151 U. S. 689;
Mattingly v. N.W. Va. R. Co., 158 U. S.
53,
158 U. S. 57;
Powers v. Chesapeake & Ohio Ry. Co., 169 U. S.
92,
169 U. S.
98.