Slike strani
[ocr errors]

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 jurisdiction. 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

[blocks in formation]

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

[blocks in formation]

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

[blocks in formation]

U. S. 428; DeCastro v. Compagnie Francaise &c., 76 Fed. Rep. 426; Earle v. Chesapeake & Ohio R. Co., 127 Fed. Rep. 235; Cady v. Associated Colonies, 119 Fed. Rep. 420; Eldred v. Am. Palace-Car Co., 105 Fed. Rep. 455; Beale on For. Corp. §§ 279, 281.

The railroad company may still own lands within the Territory of New Mexico without being represented therein by any authorized agency. Owning or holding lands in such district is not doing or transacting its business therein. Mo. Coal & Mining Co. v. Ladd, 160 Missouri, 435; nor is it doing business in the Territory by prosecuting suits. McCall v. Mortgage Co., 99 Alabama, 427; St. L., A. & T. Ry. Co. v. Fire Assn., 55 Arkansas, 163; Utley v. Mining Co., 4 Colorado, 369. The test is whether the corporation has an agency within the district transacting therein its ordinary business so that it may be said to be impersonated in or represented by such agency for general purposes, including its subjection to the service of process therein. Saint Clair v. Cox, 106 U. S. 351; United States v. Am. Bell Tel. Co., 29 Fed. Rep. 17.

The District Court has no jurisdiction. It is a terminal court and was not included in § 9, act of February 4, 1887, 24 Stat. 382. Reynolds v. United States, 98 U. S. 145, 154; McAllister v. United States, 141 U. S. 174. As to what is a court of competent jurisdiction under act of March 3, 1887, see Union Switch Co. v. Hall Signal Co., 65 Fed. Rep. 625, and as to what is meant by "where defendant resides or may be found" under act of July 2, 1890, see United States v. Bell Tel. Co., 29 Fed. Rep. 34; Maxwell v. A., T. & S. F. R. R. Co., 34 Fed. Rep. 286; Bentlif v. London &c. Corporation, 44 Fed. Rep. 667; Clews v. Woodstock Iron Co., 44 Fed. Rep. 31; St. Louis Wire Co. v. Consolidated Wire Co., 32 Fed. Rep. 802; Good Hope v. Railway Fencing Co., 22 Fed. Rep. 635.

MR. JUSTICE HARLAN, after making the foregoing statement, delivered the opinion of the court.

At the present term the appellant suggested that Judge

[blocks in formation]

Baker had been succeeded in office by Judge Ira A. Abbott. And it moved that such order be made in the premises as would be conformable to the rules and practice of this court. Judge Abbott consents that the action may be revived against him as the successor of Judge Baker, and proceed to a hearing, without further summons or notice, upon the record as now presented to the court.

The first question to be considered is whether it is competent for this court, Judge Baker having ceased to be judge, to substitute the name of his successor, as the appellee.

In United States v. Boutwell, 17 Wall. 604, 607, which was a mandamus against Mr. Boutwell as Secretary of the Treasury, it appeared that after the case was brought to this court the defendant resigned his office. Thereupon a motion was made to substitute the name of his successor, Mr. Richardson. It did not appear that any previous application was made to the latter for leave to substitute his name, and he opposed the motion, which was denied.

Mr. Justice Strong delivered the opinion of the court, saying: "The office of a writ of mandamus is to compel the performance of a duty resting upon the person to whom the writ is sent. That duty may have originated in one way or in another. It may, as is alleged in the present case, have arisen from the acceptance of an office which has imposed the duty upon its incumbent. But no matter out of what facts or relations the duty has grown, what the law regards and what it seeks to enforce by a writ of mandamus, is the personal obligation of the individual to whom it addresses the writ. If he be an officer, and the duty be an official one, still the writ is aimed exclusively against him as a person, and he only can be punished for disobedience. The writ does not reach the office. It cannot be directed to it. It is, therefore, in substance a personal action, and it rests upon the averred and assumed fact that the defendant has neglected or refused to perform a personal duty, to the performance of which by him the relator has a clear right. Hence it is an imperative rule that previous

« PrejšnjaNaprej »