A foreign insurance company was doing business in Pennsylvania
under a license granted pursuant to a statute, which, among other
things, provided that the company should file a written
stipulation, agreeing that process issued in any suit brought in
any court of that Commonwealth having jurisdiction of the subject
matter, and served upon the agent specified by the company to
receive service of process for it, should have the same effect as
if personally served upon the company within the state. Suit was
brought in the Circuit Court of the United States for the Eastern
District of Pennsylvania by a citizen of that state against the
company, and process served, in accordance with the state law, upon
its agent so specified, who resided within the district. The
service of the process was quashed, because the company was not an
inhabitant of or found within the district.
Held:
1. That the circuit court has jurisdiction of the suit, and
should proceed to hear and determine it.
2. That said court is a court of the commonwealth within the
intent of the statute.
Page 96 U. S. 370
Schollenberger, a citizen of Pennsylvania, brought sundry suits
in said circuit court against certain foreign insurance companies
upon policies which they had severally issued upon his property
situate in that state and within the jurisdiction of the court.
Each company, before the issue of its policy, had accepted the
provisions of the statute of the state, and, in compliance
therewith, appointed its agent residing there, on whom process of
law against it could be served. So much of the statute as bears on
the question here involved is set out in the opinion of this
Court.
The service of the writs, which were sued out by Schollenberger
and executed, in accordance with the state law, on the agents of
the several companies by them respectively specified for the
purpose and residing within the jurisdiction of the court, was
quashed by the circuit court. On his petition, setting forth the
foregoing facts, a rule was awarded upon the judges of that court
to show cause why a writ of mandamus should not be issued out of
the office of this court commanding them to hear and determine the
suits so brought in the said circuit court and also to strike from
the record certain orders dated the thirteenth day of April, 1878,
whereby the service of the said writs was quashed, and thereupon to
make such disposition of the suits as ought to have been made had
the said orders not been entered.
The judges in their return answered that the facts were truly
stated in the petition, that the respondents declined to hear and
determine the said suits because, in their opinion, the said
circuit court had no competent jurisdiction thereof, the defendants
not having appeared therein or in any wise submitted to the
jurisdiction of the court, and not having been at the commencement
of the respective suits or at any time inhabitants of or found in
the said district within the meaning of the Act of Congress of
March 3, 1875, reenacting a like provision of the eleventh section
of the Act of Sept. 24, 1789; that the question under this
enactment being one of jurisdiction,
Page 96 U. S. 371
and not of mere procedure, the statute of Pennsylvania mentioned
in the said petition was, in the opinion of the respondents,
inapplicable. The service of the process in the said suits was
therefore set aside as unauthorized.
Page 96 U. S. 374
MR. CHIEF JUSTICE WAITE delivered the opinion of the Court.
This is a petition for a writ of mandamus, requiring the judges
of the Circuit Court of the United States for the Eastern District
of Pennsylvania to hear and determine certain suits brought in that
court in favor of the relators against a number of insurance
companies incorporated by the laws of other states, but doing
business in that state under a license granted pursuant to a
statute regulating that subject. The circuit court declines to
entertain jurisdiction of the causes for the reason, as is alleged,
that the defendant companies were not "at the commencement of the
respective suits, or at any time, inhabitants of or found in the
said district." This presents the only question in the case, as it
is conceded that the citizenship of the parties is such as to give
the court jurisdiction, if the several defendants can be sued in
the district without their consent.
A statute of Pennsylvania provides that
"No insurance company not of this state, nor its agents, shall
do business in this state until he has filed with the insurance
commissioner of this state a written stipulation, duly
authenticated by the company, agreeing that any legal process
affecting the company served on the insurance commissioner, or the
party designated by him, or the agent specified by said company to
receive service of process for the said company, shall have the
same effect as if served personally on the company within this
state, and, if such company should cease to maintain such agent in
this state, so designated, such process may thereafter be served on
the insurance commissioner; but so long as any liability of the
stipulating company to any resident of this state continues, such
stipulation cannot be revoked or modified, except that a new one
may be substituted, so as to require or dispense with the service
at the office of said company within this state, and that such
service of process according to this stipulation shall be
sufficient personal service on the company. The term 'process'
Page 96 U. S. 375
includes any writ of summons, subpoena, or order whereby any
action, suit, or proceedings shall be commenced, or which shall be
issued in or upon any action, suit, or proceedings brought in any
court of this Commonwealth having jurisdiction of the subject
matter."
Laws of Penn., 1873, p. 27, sec. 13.
The return to the rule to show cause admits that all the
defendant companies were doing business in the state under this
statute, and that their designated agents were duly served with
process in each of the suits. For the purposes of this hearing, the
fact of due service upon the agents must be considered as
established. If in reality it is not so, the court below will not
be precluded by any thing in this proceeding from inquiring into
the truth, and acting upon the facts as they are found to
exist.
The act of 1875, determining the jurisdiction of the circuit
courts, 18 Stat. 470, and which in this particular is substantially
a re enactment of the act of 1789, 1 Stat. 79, sec. 11, provides
that
"no civil suit shall be brought before either of said courts
against any person by any original process or proceeding in any
other district than that whereof he is an inhabitant, or in which
he shall be found at the time of serving such process or commencing
such proceedings, except,"
&c.
It is unnecessary to inquire whether these several companies
were inhabitants of the district. The requirements of the law, for
all the purposes of this case, are satisfied if they were found
there at the time of the commencement of the suits, and that
question, we think, was settled in
Railroad
Company v. Harris, 12 Wall. 65. In that case, it
appears that when the suit was commenced, the statutes defining the
jurisdiction of the courts of the District of Columbia provided
that
"No action or suit shall be brought . . . by any original
process against any person who shall not be an inhabitant of or
found within the District at the time of serving the writ."
2 Stat. 106, sec. 6. Afterwards, in 1867, the law was changed in
respect to foreign corporations doing business in the District, and
service allowed upon the agent, 14 Stat. 404, sec. 11; but when the
suit was begun and the process served, the old law was in force.
The Baltimore and Ohio Railroad Company, a Maryland corporation,
was authorized by Congress to construct and extend its
Page 96 U. S. 376
railroad into the District of Columbia. Harris, having been
injured while traveling as a passenger upon the railroad outside of
the District, sued the company in the Supreme Court of the District
and caused the writ to be served upon the president of the company
within the District. The company objected to the jurisdiction of
the court and insisted that it was neither an inhabitant of nor
found within the District. In ruling upon this objection, we held
that although the company was a foreign corporation, it was suable
in the District because it had in effect consented to be sued there
in consideration of its being permitted by Congress to exercise
therein its corporate powers and privileges. The language of the
Court, speaking through MR. JUSTICE SWAYNE, is:
"It [a corporation] cannot migrate, but may exercise its
authority in a foreign territory upon such conditions as may be
prescribed by he law of the place. One of these conditions may be
that it shall consent to be sued there. If it do business there, it
will be presumed to have assented, and will be bound
accordingly."
Then, after an examination of the statute granting the right to
extend the road, it was said (p.
79 U. S. 84):
"We entertain no doubt that it made the company liable to suit
where this suit was brought, in all respects as if it had been an
independent corporation of the same locality."
This language was cited with approbation, and adopted as a
correct exposition of the law by MR. JUSTICE FIELD, speaking for
the Court in
Railway Company v.
Whitton, 13 Wall. 270.
Applying these principles to the present case, there cannot be
any doubt, as it seems to us, of the jurisdiction of the circuit
court over these defendant companies. They have in express terms,
in consideration of a grant of the privilege of doing business
within the state, agreed that they may be sued there -- that is to
say that they may be found there for the purposes of the service of
process issued "by any court of the Commonwealth having
jurisdiction of the subject matter." This was a condition imposed
by the state upon the privilege granted, and it was not
unreasonable.
Lafayette Insurance Co. v.
French, 18 How. 404. It was insisted in argument
that the statute confines the right of suit to the courts of the
state; but we cannot so construe it. There is nothing to manifest
such an
Page 96 U. S. 377
intention, and, as the object of the legislature evidently was
to relieve the citizens of Pennsylvania from the necessity of going
outside of the state to seek judicial redress upon their contracts
made with foreign insurance companies, it is but reasonable to
suppose that they were entirely at liberty to select the court in
the state having jurisdiction of the subject matter, which, in
their judgment, was the most convenient and desirable. As the
company, if sued in a state court, could remove the cause to the
circuit court, and thus compel a citizen of the state to submit to
that jurisdiction, we see no reason why the citizen may not, if he
desires it, bring the company into the same jurisdiction at the
outset. While the circuit court may not be technically a court of
the Commonwealth, it is a court within it; and that, as we think,
is all the legislature intended to provide for.
States cannot by their legislation confer jurisdiction upon the
courts of the United States, neither can consent of parties give
jurisdiction when the facts do not; but both state legislation and
consent of parties may bring about a state of facts which will
authorize the courts of the United States to take cognizance of a
case.
Ex Parte
McNeil, 13 Wall. 236. Thus, if the parties to a
suit, both plaintiff and defendant, are in fact citizens of the
same state, an agreement upon the record that they are citizens of
different states will not give jurisdiction. But if the two agree
that one shall move into and become a citizen of another state in
order that jurisdiction may be given, and he actually does so in
good faith, the court cannot refuse to entertain the suit. So, as
in this case, if the legislature of a state requires a foreign
corporation to consent to be "found" within its territory for the
purpose of the service of process in a suit as a condition to doing
business in the state, and the corporation does so consent, the
fact that it is found gives the jurisdiction notwithstanding the
finding was procured by consent. The essential fact is the finding,
beyond which the court will not ordinarily look.
A corporation cannot change its residence or its citizenship. It
can have its legal home only at the place where it is located by or
under the authority of its charter, but it may by its agents
transact business anywhere, unless prohibited by its
Page 96 U. S. 378
charter or excluded by local laws. Under such circumstances, it
seems clear that it may, for the purpose of securing business,
consent to be "found" away from home, for the purposes of suit as
to matters growing out of its transactions. The act of Congress
prescribing the place where a person may be sued is not one
affecting the general jurisdiction of the courts. It is rather in
the nature of a personal exemption in favor of a defendant, and it
is one which he may waive. If the citizenship of the parties is
sufficient, a defendant may consent to be sued anywhere he pleases,
and certainly jurisdiction will not be ousted because he has
consented. Here the defendant companies have provided that they can
be found in a district other than that in which they reside if a
particular mode of proceeding is adopted, and they have been so
found. In our opinion, therefore, the circuit court has
jurisdiction of the causes and should proceed to hear and decide
them.
We are aware that the practice in the circuit courts generally
has been to decline jurisdiction in this class of suits. Upon an
examination of the reported cases in which this question has been
decided, we find that in almost every instance the ruling was made
upon the authority of the late Mr. Justice Nelson, in
Day v.
The Newark India rubber Manufacturing Co., 1 Blatchf. 628, and
Pomeroy v. New York & New Haven Railroad Co., 4
id. 120. These cases were decided by that learned justice,
the one in 1850 and the other in 1857, long before our decision in
Railroad Company v. Harris, supra, which was not until
1870, and are, as we think, in conflict with the rule we there
established. It may also be remarked that Mr. Justice Nelson, as a
member of this Court, concurred in that decision.
Judge Woods, of the Fifth Circuit, has already decided in favor
of the jurisdiction in
Knott v. The Southern Life Insurance
Co., 2 Woods 479, and Judge Dillon, of the eighth circuit,
declined to take it, only because he felt himself foreclosed by the
rulings of other judges, and especially of Mr. Justice Nelson.
Stillwell v. The Empire Fire Insurance Co., 4 Cent.Law
Jour. 463.
Writ of mandamus granted.