concurring in tbe dissent: However right this Court may have been when, in Staton v. R. R., 144 N. C., 136, it declared tbe true status of tbe defendant with reference to its citizenship as being in this State or another, my opinion is now fixed tbat it is not competent for this Court, in tbe exercise of its proper jurisdiction, to decide tbat question where diverse citizenship is positively alleged in tbe petition, although it may be denied by tbe other party. It makes no difference what tbe truth of tbe matter may be, if upon its face tbe record shows a removable case, .our jurisdiction ceases, and tbe issue of fact, and tbe law arising thereon, is at once, and automatically, transferred to tbe jurisdiction of tbe Federal court for decision. It requires no order or action of tbe State court to make such transfer effective. We cannot enter upon an investigation of any evidence, however it may be brought to our attention, whether by oral, documentary, or record proof. It is tbe bare allegation of fact contained in tbe record tbat determines tbe jurisdiction of this Court, and no denial, however direct, positive, or even circumstantial it may be, can prevent tbe jurisdiction of tbe Federal court from attaching immediately on filing tbe petition and tbe requisite bond.
*661Tbe language of tbe Supreme Court of tbe United States, by whose decision upon tbis and like Federal questions we must abide, bas settled tbe practice in sucb cases and finally closed tbe discussion of tbis point in Railway Co. v. Dunn, 122 U. S., 573, referring to tbe recent decisions of Stone v. South Carolina, 117 U. S., 432, and Carson v. Hyatt, 118 U. S., 279.
Tbe Court, in tbe Dunn case, admits tbat there bad been some confusion in tbe cases before tbat time, “tbe utterances of tbe Court not being clear and distinct,” but says tbat tbe meaning of tbe removal legislation is very plain and unmistakable. Ee-. ferring to Stone v. South Carolina, supra, and stating tbat tbe question was finally settled therein “on full consideration and with tbe view of announcing tbe opinion of tbe Court on tbat subject,” tbe Court thus aptly and explicitly states tbe law: “Only two weeks after tbat case was decided, Carson v. Hyatt came up for determination^ in which tbe precise question was directly presented, as tbe allegation of citizenship in tbe petition for removal was contradicted by a statement in tbe answer, and it became necessary to determine what tbe fact really was. We there affirmed what bad been said in Stone v. South Carolina, and decided tbat it was error in tbe State court to proceed further with tbe suit after tbe petition for removal was filed, because tbe circuit court alone bad jurisdiction to try tbe question of fact which was involved. Tbis rule was again recognized at tbis term in Carson v. Dunham, 121 U. S., 421 (ante, 992), and is in entire harmony with all tbat bad been previously decided, though not with all tbat bad been said in tbe opinions in some of tbe cases. To our minds, it is tbe true rule and calculated to produce less inconvenience than any other. Tbe theory on which it rests is tbat tbat record closes, so far as tbe question of removal is concerned, when tbe petition for removal is filed and tbe necessary security furnished. It presents, then, to tbe State court a pure question of law, and tbat Is, whether, admitting tbe facts stated in tbe petition for removal to be true, it appears on tbe face of tbe record, which includes tbe petition and tbe pleadings and proceedings down to tbat time, tbat tbe petitioner is entitled to a removal of tbe suit. Tbat question *662the State court has the right to decide for itself; and if it errs in keeping the case, and the highest court of the State affirms its decision, this Court has jurisdiction to correct the error, considering for that purpose only the part of the record which ends with the petition for removal. Stone v. South Carolina, 117 U. S., 432 (supra), and cases there cited.”
This case and the remarks of the Court just quoted were fully reviewed and approved by us in Herrick v. R. R., 158 N. C., 307, in which we said: “The rule, as thus formulated, has been recognized by this Court as the authoritative and controlling one in Springs v. R. R., 130 N. C., 186. The cases to the same effect are collected in 5 Digest U. S. Supreme Court Reports (L. Ed., 1908), pp. 5100 and 5101. In the case of R. R. v. Daughtry, supra, the very question now before us was involved, and the Court held it to be Thoroughly settled’ by the decisions that issues of fact raised upon petitions for removal must be tried in the Federal court. The issue in that case was one of diverse citizenship. The matter was fully discussed at the last term by Justice Hoke in Rea v. Mirror Co., ante, 24, and we then reached the same conclusion as herein stated,” citing Crehore v. Railway Co., 131 U. S., 240; R. R. v. Daughtry, 138 U. S., 298.
In Rea v. Mirror Co., supra, Justice Hoke thus decisively closes the question: “If the plaintiff desires to challenge the truth of these averments, he must do so on motion to remand or other proper procedure in the Federal court. That court being charged with the duty of exercising jurisdiction in such case, must have the power to consider and determine the facts'upon which the jurisdiction rests,” citing many cases to support his statement.
The mere fact that we may have resorted to the records of the Corporation Commission to establish certain facts does not take the case out of the settled rule, for they are, at least, but evidence of the facts they contain, and we have no jurisdiction to consider evidence, but only the allegations of the petition. It was attempted, in the ease of Carson v. Hyatt, supra, to introduce the record of a former suit between the. parties to estop Mrs. Carson upon the question of her citizenship. With refer*663ence to tbis offer of record proof, tbe Court said: “At most, it was only evidence, and bad nothing to do witb tbe Tace of tbe record/ ”
So we see tbat tbe form of tbe proposed proof in denial of defendant’s citizenship, whether record or otherwise, has nothing to do witb tbe matter, as it does not appear in, or “on tbe face of,” tbe petition. Tbis very question was distinctly raised in Carson v. Hyatt, supra, and tbis is tbe Court’s emphatic response : “The- State court is only at liberty to inquire whether, on tbe face of tbe record, a case has been made which requires it to proceed no further. In tbe present case tbe petition stated, in positive terms, tbat Mrs. Carson was, at tbe beginning of tbe suit, and' still continued to be, a citizen of Massachusetts. Witb tbat fact established, tbe necessary citizenship for a removal existed. "Whether it was a fact or not could, under tbe ruling in Stone v. South Carolina, only be tried in tbe circuit court.” Nothing, therefore, extraneous to tbe record may be considered, but only those things tbat appear therein. Tbe questions of fact and of law involved must afterwards be settled in tbe Federal court, upon tbe motion to remand.
If we take notice of evidence not in tbe record in order to decide tbe truth of tbe matter, we are not acting solely upon facts disclosed by tbe record, as we are imperatively required to do, but seeking information from foreign sources in order to pass upon tbe issue of fact, which we are clearly forbidden to do, and tbe quality of tbe evidence so used by us, whether legally conclusive or otherwise, does not differ tbe case from those we have cited, in which tbe Court has cleared up tbe obscurity in former decisions and stated tbe law witb unequivocal directness, so as to leave no room for any possible doubt as to what is meant. It is our bounden duty, under tbe law, to let go our jurisdiction, unless there is sufficient warrant on tbe very face, and not outside, of tbe record for a retention of tbe case.
In tbis particular matter tbe Federal court may not agree witb us as to tbe proper construction and tbe legal effect of tbe evidence considered by tbis Court in Staton v. R. R., however much we may be convinced of tbe correctness and unassailable *664character of our position, or it may deny our right to enter upon the investigation which led us to the conclusion that the defendant in that case was a corporation of this State, having its domicile and citizenship here. I concurred.in that view, and have not changed my opinion there held in regard to it; but I can clearly see, in the light of decisions of the Federal Court of last resort, which are binding upon us, that it is beyond our jurisdiction to decide the question. My conclusion is that defendant is entitled to the removal of the cause and that his application should be granted, although it may not be essential to a technical transfer of the case, which may take place without our intervention.
I may properly add to what has been said in this opinion, that when Staton v. R. R. was before this Court, it is apparent that the specific question involved in this appeal was not considered with reference to the authoritative utterances of the highest Federal Court, but we simply assumed, all of us, that the jurisdiction rested in this Court to decide the fact of citizenship, as the evidence of it came from such an indisputable source; and with this assumption, without any specific inquiry into the correctness of it, we did not, at -the time, question our right to construe the evidence, not introduced in the case, but which we found in the reports of the Corporation Commission, 'but silently passed that point in the discussion of the case and immediately considered the nature and legal effect of the proof. None of this was in the petition or in the record, nor did any suggestion of the kind appear “on the face of the record.” The case of Staton v. R. R. is, therefore, not binding as a precedent, and even if it is an authority, and we were inadvertent to the positive and unquestionable ruling of the higher court, we should follow the latter as controlling upon us. I am sure if the attention of the learned justice who wrote the opinion in that case had been drawn to'that ruling, he would have concurred in our present view of the question. We altogether failed to notice it.