dissenting: I admit, as stated in the opinion of. the Court, that the question of removal involved in this case has been decided adversely to the defendant in the case of Staton v. R. R., 144 N. C., 136, decided in 1907, and that I concurred in that decision. Our judgment rendered then, in my opinion, is in conflict with the decisions of the Supreme Court of the United States, which are authoritative and binding upon all State courts upon the matter involved in this case.
The petition for removal in this case is admitted to be in due form and the requisite bond filed. It appears upon the face of that petition that the plaintiff is a citizen of the State of North Carolina, residing at Rocky Mount, and that the defendant “was at the commencement of this suit and at all times since has been and still is a citizen and resident of the State of Virginia; that it is incorporated under the laws of the State of Virginia, having its principal office in the city of Petersburg, Va.”
*658Thus it will be seen that the only traversable fact set out in the petition is the citizenship of the defendant. This question of citizenship is the'very foundation of the jurisdiction of the Federal court, and it is well settled by the decisions of the Supreme Court of the United States that the citizenship, being jurisdictional, is a question to be decided by the Federal court.
It is held in a multitude of cases that issues of fact, arising upon a petition for removal of a cause from a State to a Federal court, are to be determined by the Federal court, and not by the State court, and that the State court, for the purpose of determining for itself whether it will surrender jurisdiction, must accept as true the allegations of fact in such petition. A corporation is a citizen within the meaning of the Constitution of the United States, its- citizenship is essentially a jurisdictional fact, and must be determined by the Federal court as much so as if the defendant was an individual. C. and O. Ry. Co. v. Cockrell, U. S. Sup. Ct. Rep., No. 6, p. 229, 15 February, 1914. In that case is cited practically all the decisions of the Federal court on the subject.
This must necessarily be so in view of the fact that the judicial power of the United States is wholly independent of State action, and the State may not by any exertion of authority, whether legislative or judicial, directly or indirectly, abridge, limit, or destroy such power.
As said by Chief Justice White in Harrison v. St. Louis R. R. Co., vol. 24, Sup. Ct. Rep., p. 333, 15 March, 1914: “The doctrine is so elementary as to require no citation of authority to sustain it. Indeed, it stands out so plainly as one of the essential and fundamental conceptions upon which our constitutional system rests, and the lines which define it are so broad and so obvious, that unlike some of the other powers delegated by the Constitution, where the lines of distinction are less clearly defined, the attempts to transgress or forget them have been so infrequent as to call for few occasions for their statement and application.”
In that case it is held that “averments challenging the foreign citizenship of a corporation are properly stricken from the an*659swer in a suit brought by such corporation in a Federal court to enjoin State officials from enforcing a forfeiture of its right to do business in the State because of its assertion of the right to remove'an action against it from a State court to a Federal 'court, since such matters are properly cognizable only where presented in an appropriate manner and at the proper time to the Federal tribunal, which has a right to pass upon them when considering the propriety of the removal which is prayed.”
It will be seen from reading the opinion of the Chief Justice in this case that the question of citizenship of a corporation is to be passed upon by the State court only as it is alleged and appears upon the petition for removal. When that citizenship is denied, the question can only be determined by the Federal court, for the very cogent reason that the question is vital to the jurisdiction of the latter.
The statute in'ovides for the filing of a petition and bond in the State court and notice to the plaintiff, all of which is complied with. If the petition and bond are sufficient, the State court is divested of jurisdiction over the case. Winslow v. Collins, 110 N. C., 119; 14 S. E., 512; S. v. Dunlap, 65 N. C., 491; Smith v. Quarries Co., 164 N. C., 338; Higson v. Insurance Co., 153 N. C., 35.
The plaintiff can then raise the question of jurisdiction in the Federal court only by a motion to remand. In the recent case of Smith v. Quarries Co., 164 N. C., at page 352, Mr. Justice Ilohe says: “True, it is now uniformly held that when a verified petition for removal is filed, accompanied by a proper bond, and same contains facts sufficient to require a removal under the law, the jurisdiction of the State court is at an end; and in such case it is not for the State court to pass upon or decide the issue of fact so raised, but it may only consider and determine the sufficiency of the petition and the bond.” Herrick v. R. R., 158 N. C., 307; Chesapeake v. McCabe, 213 U. S., 207; Wecker v. Enameling Co., 204 U. S., 176.
I agree to the conclusions reached by Judge Connor in the Staton case, that the Atlantic Coast Line Eailway, according to the legislation cited by him, ought to be a North Carolina cor*660poration; but I am very decidedly of tbe opinion tbat where tbe allegation of tbe petition for removal is tbat it is a Virginia corporation, tbe State court bas no jurisdiction to go behind tbe petition. Tbat fact is one upon which rests tbe very foundation •of tbe Federal jurisdiction; and to sustain tbat jurisdiction, it must necessarily be decided by tbe Federal and not by tbe State court.
Tbe jurisdiction of tbe State courts to .pass on a question of’ citizenship and to go behind tbe allegations contained in tbe petition does not seem to have been considered very fully in tbe Staton case.
For tbe reasons given, I am of opinion tbat tbe cause should be removed to tbe Federal court, and tbat tbe citizenship of tbe defendant can only be passed upon by that court upon a petition to remand.