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the thirteenth day of May, 1904, by delivering a true copy thereof, with a copy of the complaint thereto attached, to E. P. Ripley, president of the defendant corporation.
The Santa Fé Pacific Railroad Company is a corporation organized and existing under the act of Congress of March 3, 1897, defining the rights of purchasers under mortgages authorized by an act of Congress approved April 20, 1871, concerning the Atlantic and Pacific Railroad Company. 29 Stat. 622, c. 374.
When the grievances set out in the petition were committed, the Santa Fé Pacific Railroad Company was the owner of a line of railroad within the Second Judicial District of New Mexico and elsewhere within that Territory, but which line, at the commencement of this action, had been sold and transferred to, and was being operated by, the Atchison, Topeka and Santa Fé Railroad Company under a conveyance authorized by an act of Congress of June 27, 1902, 32 Stat. 405, c. 1159; was the owner of several hundred thousand acres of land within that District; and, at the commencement of the action for damages, was prosecuting in one of the counties of the Territory, within the same District, suits involving the company's title and possession of parts of those lands.
All of those lands, with the rights, privileges and franchises appertaining thereto where acquired by the Santa Fé Pacific Railroad Company as the successor of the Atlantic and Pacific Railroad Company, to which last named company they were granted by the act of Congress of July 27, 1866. 14 Stat. 292, c. 278.
The petition for mandamus alleged that by reason of the above facts the Santa Fé Pacific Railroad Company was an "inhabitant” of the Second Judicial District of New Mexico, and by reason of the presence of Ripley, its president, in that Territory and within that District and the service of summons in the above action upon him as such president, the company was "found" in the District within the meaning of the acts of Congress.
Nevertheless, the defendant Baker, Associate Justice of the Supreme Court of the Territory and Judge of the District Court of the Second Judicial District, quashed the return of the above summons and refused to assume jurisdiction of the action, so far as the Santa Fé Pacific Railroad Company was concerned, or to require that company to answer the declaration or complaint filed by petitioner.
The defendant Baker made a return to a rule issued against him to show cause. From that return it appeared that the Santa Fé Pacific Railroad Company specially appeared in the action for the purpose of moving and did move to quash the service of process, upon grounds set forth in an affidavit of its president. In that affidavit Ripley stated that when served with summons he was only a passenger on a railroad train passing through the Territory; that the company had its office in the city of New York, while its land commissioner had an office at Topeka, Kansas, and its president an office at Chicago, Illinois; that the company had no property in the Territory of New Mexico, except lands acquired by it under a foreclosure of a mortgage of the Atlantic and Pacific Railroad Company, and which lands were undisposed of; that it has had no office or place of business in the Territory since the sale of its road. This affidavit was used on the hearing of the motion to quash, and the facts stated in it were not contradicted.
The contention of the company, therefore, was that the service in question was insufficient to bring the company, personally, before the court.
The return of the judge also stated that the actions in ejectment brought by the railroad company against trespasses upon its property were instituted prior to the sale of its railroad property and franchises to the Atchison, Topeka and Santa Fé Railroad Company; and that the refusal of the judge to assume jurisdiction in the case referred to was upon the ground that the service upon Ripley as president of the company was not, in his opinion, sufficient to subject it personally to the jurisdiction of the court.
Argument for Appellant.
196 U. S.
The relief sought was an alternative writ of mandamus, directing Judge Baker to assume jurisdiction of the cause, so far as the Santa Fé Railroad Company was concerned, and to require that company to plead, answer or demur.
The Supreme Court of the Territory, after hearing the case, upon the pleadings, return and the proofs, denied the petition for mandamus and dismissed the application. From that order the present appeal was prosecuted.
Mr. Neill B. Field for appellant:
The District Court had jurisdiction of the subject matter of the original action. Section 17, Organic Act, New Mexico, 9 Stat. 452; $ 1910 Rev. Stat.; 26 Stat. 209; 24 Stat. 379.
If the District Courts of the Territories, when sitting for the trial of causes arising under the Constitution and laws of the United States, are not invested with jurisdiction to administer the remedy here invoked, then persons and corporations violating these statutes, and confining their operations to the Territories need not respond in damages, however flagrant their violations of the law. They cannot be sued, in the United States Circuit or District Courts, because the jurisdiction of those courts does not extend to the Territories; and if they cannot be sued in the territorial courts, they cannot be sued at all.
The District Courts of the Territories are invested with admiralty jurisdiction which is analogous on the question of ju• risdiction. City of Panama, 101 U. S. 458; Insurance Co. v. Canter, 1 Pet. 511; and see construction of act of March 3, 1887, 24 Stat. 505, and cases cited; In re Cooper, 143 U. S. 494; United States v. Foreman, 5 Oklahoma, 237; Johnson v. United States, 6 Utah, 407; United States v. Johnson, 140 U. S. 703.
The Santa Fé Pacific Railroad Company is not a “foreign” corporation in New Mexico.
The fundamental error of the court below lies in the assumption that the company is a “foreign” corporation in
New Mexico. The assumption is supported by no reasoning, but that the court did so assume appears from the opinion. See act of incorporation, 29 Stat. 622. A corporation created by or under authority of an act of Congress has its domicile in every place where it may lawfully exercise its corporate powers. Bank of Augusta v. Earle, 13 Pet. 588; 1 Thomp. on Corp. § 681; 2 Morawetz, $ 984; Commonwealth v. Tex. & P. R. R. Co., 98 Pa. St. 100; California v. Pac. R. R. Co., 127 U. S. 39.
The railroad company holds its lands in New Mexico under the authority of Congress, and that authority is clearly not subject to be circumscribed by territorial legislation. The franchise to exist as a corporation is on the same footing. Com. v. Tex. & Pac. R. R. Co., 127 U. S. 39; Van Dresser v. Oregon Ry. & Nav. Co., 48 Fed. Rep. 202; Pac. R. R. Removal Cases, 115 U. S. 1; Bank of U. S. v. Roberts, 2 Fed. Cas. 728.
The Santa Fé Pacific Railroad Company was “found” within the district in which the suit was brought.
The court below treated the railroad company as being on the same footing with a corporation chartered by a State, citing United States v. Southern Pacific Railroad Company, 49 Fed. Rep. 297, but this case does not sustain the proposition.
As to how service may be made on domestic corporations, see Comp. Laws, New Mexico, 1897, $$ 450, 2963; Kansas R. R. City v. Daugherty, 138 U. S. 298.
The contention of the railroad company must be clearly established and it affirmatively appears from the answer that service on it was sufficient, and that appellant is entitled to the relief prayed for. New Haven &c. Co. v. Dowington Co., 130 Fed. Rep. 605; United States v. Southern Pac. R. Co., 49 Fed. Rep. 297; Cosmopolitan &c. Co. v. Walsh, 193 U. S. 460.
Mr. Robert Dunlap for appellee:
It does not sufficiently appear that the District Court obtained jurisdiction in a personal action so as to enable it to render a personal judgment against the Santa Fé Pacific Rail
road Company by the service made on its president while he was casually passing through the district and was not at the time representing the railroad company. The railroad company was not so identified with its president at the time in that district as to render the service of summons upon him a service upon it so as to subject it to the orders or judgments of that court. Goldey v. Morning News Co., 156 U. S. 521; Mex. Cent. Ry. Co. v. Pinkney, 149 U. S. 209; Harris v. Hardeman, 14 How. 339; Phillips v. Burlington Library Co., 141 Pa. St. 462.
A corporation can be said to have a technical habitat or place of residence only in the State or district where its corporate meetings are held. G., H. & San Ant. Ry. Co. v. Gonzales, 151 U. S. 496; Int. Com. Comm. v. Tex. & Pac. Ry. Co., 57 Fed. Rep. 949; Jones v. Scottish Accident Ins. Co., L. R. 17 Q. B. Div. 421; Watkins v. Scottish Imperial Ins. Co., L. R. 23 Q. B. D. 285; Frick Co. v. Norfolk & W.R. Co., 26 Fed. Rep. 725; Lafayette Ins. Co. v. French, 18 How. 408.
The service of summons, even upon the president of a corporation while temporarily in a state or district in which the corporation is not at the time transacting its business, is not a valid service upon the corporation, even though the local laws should authorize the same, because such president does not then represent that corporation. Saint Clair v. Cox, 106 U.S. 350; Goldey v. Morning News, 156 U. S. 518; Construction Co. v. Fitzgerald, 137 U. S. 106; Mecke v. Valleytown Mineral Co., 93 Fed. Rep. 697; Beale on For. Corp. $ 270.
The rule is the same even though the corporation at some period prior to the service had been engaged in business in the particular State or district, or that some officer of the corporation had at all times resided therein. The corporation has the right to withdraw from the State or district, and when it is no longer represented in such State or district by an agent transacting therein its ordinary business, it cannot be said to be present therein at the time. Conley v. Mathieson Alkali Works, 190 U. S. 406; Geer v. Mathieson Alkali Works, 190