May 29, 1908. The opinion of the Court was delivered by The facts are stated in the order of his Honor, the Circuit Judge, which will be set out in the report of the case.
This Court deems it only necessary to add one or two reasons to those assigned by the presiding Judge, in refusing the motion.
Since the motion was refused, the United States Supreme Court has rendered a decision, in the case of Patch v.Wabash R.R. Co., 28 Sup. Ct. Rep., 80, announcing the principle that a corporation existing under and by virtue of the laws of several States, including the one in which the action is commenced, must be regarded as a citizen of the latter State, for the purpose of determining its right to remove the cause to a Federal Circuit Court.
The facts are thus stated in the opinion: "This was an action brought by the plaintiff in error to recover for the death of his intestate in a collision upon the defendant's railroad in Illinois. The action was begun in a court of the State, and the defendant forthwith filed a petition for the removal of the cause to the United States Circuit Court. The petition averred, among other things, that the defendant was a corporation organized under the laws of Ohio, and a citizen of that State, and was not a resident of Illinois, and that the plaintiff was a citizen and resident of Illinois. The removal was ordered and completed. Thereupon the plaintiff filed in the United States Court a plea, in which he alleged that the defendant was a corporation organized and existing under and by virtue of the laws of Illinois, Missouri, Indiana, Michigan and Ohio, by the consolidation of five other corporations, severally created by the laws of those States respectively; that the defendant was a citizen of and resident in Illinois and each of said other States, and that the plaintiff was a citizen of Ohio; and the *Page 360 plaintiff prayed judgment whether the Court could take cognizance of the action."
In that case the Court uses this language: "The defendant exists in Illinois, by virtue of the laws of Illinois. It is alleged to have incurred a liability, under the laws of the same State, and is sued in that State. It cannot escape the jurisdiction by the fact that it is incorporated elsewhere. The assent of the State to such incorporation elsewhere, supposing it to have been given — a matter upon which we express no opinion — cannot be presumed to have intended or to import such a change! * * * What would be the law in case of a suit brought in Illinois upon a cause of action which arose in Ohio is a question that may be left on one side, as also may be the decisions in cases where a corporation, originally created in one State, afterwards becomes compulsorily a corporation of another State, for some purposes, in order to extend its powers. Southern R. Co. v.Allison, 190 U.S. 326, 47 L.Ed., 1078;23 Sup. Ct. Rep., 713; St. Louis S.F.R. Co. v. James, 161 U.S. 545;40 L.Ed., 802; 16 Sup. Ct. Rep., 621. In the case at bar the incorporations must be taken to have been substantially simultaneous and free. See Memphis C.R. Co. v. Alabama,supra. If any distinction were to be made it hardly could be adverse to the jurisdiction of Illinois, in view of the requirements of its Constitution and statutes, that a majority of the directors should be residents of Illinois, and that the corporation should keep a general office in that State. We are of opinion that the defendant must be regarded in this suit as a citizen of Illinois, and, therefore, as having had no right to remove."
Section 1791 of the Code of Laws is as follows: "Each and every railroad company or railroad corporation, created or organized under and by virtue of any government other than that of this State, desiring to own property or carry on business, or exercise any corporate franchise in this State, of any kind whatsoever, shall first file, in the *Page 361 office of the Secretary of State, a copy of its charter, paying therefore such fees as may be required by law, and, in addition thereto, a fee equal to one-tenth of one per centum upon the authorized capital stock of such company or corporation. and cause a copy of such charter to be recorded in the office of the register of meson conveyance or clerk of court of common pleas in each county in which such company or corporation desires or proposes to carry on its business, or to acquire or own property. Such copy of the charter shall be authenticated in the manner directed by law for the authentification of the statutes of the State or county under whose laws such corporation is charted or organized."
In the case of Southern Railway v. Tompkins, the Court announced that "the mode by which foreign corporations might become domestic corporations was left to the Legislature, which could either require an application for a charter under the laws of this State, or could prescribe terms upon which a foreign corporation would be adopted as adomestic corporation."
It will thus be seen that the consolidation of the several corporations and the petition for a charter were not compulsory in order to enable the appellant to extend its powers, and that even if the right of removal was involved it could not be granted.
The authorities principally relied upon by the appellant relate to the right of remove, which is not involved.
But whether the foreign corporation is incorporated as a domestic corporation, when it accepts a charter, or files a copy of its charter, granted by another State, with the Secretary of State, it has not been denied that it becomes a domestic corporation for all purposes except Federal jurisdiction.Southern Ry., v. Tompkins, 48 S.C. 49,25 S.E., 982; Calvert v. Ry., 64 S.C. 139, 41 S.E., 963; Black's Dillon on Removal of Causes, section 101. *Page 362
It is the judgment of this Court that the order of the Circuit Court be affirmed.
MESSRS. JUSTICES JONES AND WOODS concur in the result, and express no opinion as to right of removal to Federal Court, since such question is not involved.