rowed to use in its improvement; 11 and where the property affected by the litigation was a small portion of that conveyed to the corporation; it was held: that the fact that the sole consideration for the transfer was the stock of the company, which had no other assets than that received from the grantors, whose citizenship was not diverse from that of the defendants, did not prevent the maintenance of the suit by the corporation in a Federal court. 12 No such presumption exists in the case of a de facto corporation, which never acquired a legal existence.13 18 A State is not considered to be a citizen nor can it invoke or be subjected to the Federal jurisdiction because of diversity of citizenship.14 A municipal corporation, such as a city,15 a township,16 or a county,17 or a public board, composed of public officers, which has been created a corporation by the State laws,1 is considered to be a citizen of the State within which it is situated, or to be composed of citizens of that State. An averment that the Board of Trustees of a State University was created by and exists under and by virtue of the law of a State, with authority to sue and be sued and to make and to use a common seal, without any allegation that it was a córporation created by and existing under the laws thereof, was held to be insufficient to sustain the jurisdiction of the Federal court on the ground of diverse citizenship, where the citizenship of the trustees did not appear.19 Where a corporation, originally created in one State, after 11 Irvine Co. v. Bond, 74 Fød. 849. 12 Slaughter v. Mallet Land & Cattle Co., C. C. A., 141 Fed. 282. 13 Gastonia Cotton Mfg. Co. v. W. L. Wells Co., 128 Fed. 369, 63 C. C. A. 111; reversing 118 Fed. 190; Cowles v. Mercer County, 7 Wall. 118, 19 L. ed. 86; Ysleta v. Canada, 67 Fed. 6; Loeb v. Trustees of Columbia Tp., Hamilton County, Ohio, 91 Fed. 37; New Orleans v. Sheppard, 10 La. Ann. 268. 14 Title Guaranty & Surety Co. v. State of Idaho, 240 U. S. 136; Deseret Water, Oil & Irrigation Co. v. State of California, C. C. A., 202 Fed. 498; Chicago, R. I. & P. Ry. Co. v. State of Nebraska, C. C. A., 251 Fed. 278. 15 Ysleta v. Canada, 67 Fed. 6; New Orleans v. Sheppard, 10 La. Ann. 268. 16 Loeb v. Trustees of Columbia Tp., Hamilton County, Ohio, 91 Fed. 37. 17 Cowles V. Mercer County, 7 Wallace, 118, 19 L. ed. 86. 18 Thomas v. Board of Trustees, 195 U. S. 207. 19 Thomas v. Board of Trustees. 105 U. S. 207, 49 L. ed. 160. wards becomes compulsorily a corporation of another State, in order to extend its powers, and it is engaged in interstate commerce; it is treated for the purpose of jurisdiction, as composed of citizens of the State which first gave it corporate existence; 20 but it was said that unless the case arises under the Constitution and laws of the United States, the Federal court cannot adjudicate its rights or liabilities as a corporation of a State, citizens of which are upon the other side of the controversy.21 Otherwise, where a corporation is chartered by two or more States, it has generally been held: that it should be treated, for the purpose of jurisdiction, as composed of citizens of the State where the suit is brought; 22 but the rule may be different where the cause 20 St. Louis & St. F. Ry. Co. v. James, 161 U. S. 545, 40 L. ed. 802; Louisville, N. A. & C. Ry. Co. v. Louisville Trust Co., 174 U. S. 552, 43 L. ed. 1081; Southern Ry. Co. v. Allison, 190 U. S. 326, 47 L. ed. 1078; reversing 129 N. C. 336, 40 S. E. 991; Callahan v. Louisville & N. R. Co., 11 Fed. 536; Missouri Pac. Ry. Co. v. Castle, 224 U. S. 541, 56 L. ed. 875; Atlantic Coast Line R. Co. v. Dunning, C. C. A., 166 Fed. 850; St. Louis & S. F. R. Co. v. Cross, 171 Fed. 480; Cummins v. Chicago, B. & Q. R. Co., 193 Fed. 238; Wilson v. Southern Ry. Co. (North Carolina), 36 S. E. Rep. 701, (overruling: Debnam v. South ern Bell Telephone & Telegraph Company, 126 N. C. 831, 36 S. E. 269; Layden v. Knights of Pythias, etc., 128 N. C. 546, 39 S. E. 47; and Mathis v. Railway Company, 53 S. C. 246, 257); Wilson v. Southern Ry. Co. (South Carolina), 41 S. E. 971, 64 S. C. 162; affirming on rehearing judgment, 36 S. E. 701; Mathis v. Southern Ry. Co. (South Carolina), 31 S. E. 240; Calvert v. Southern Ry. Co. (South Carolina), 41 S. E. 963, 64 S. C. 139; affirming on rehearing judgment 36 S. E. 750. See Patch v. Wabash Railroad Co., 207 U. S. 277, 52 L. ed. 204. 21 Louisville, N. A. & C. Ry, Co. v. Louisville Trust Co., 174 U. S. 552, 563, 577, 43 L. ed. 1081, 1087, 1092. 22 Ohio & M. R. Co. v. Wheeler, 1 Black, 286, 17 L. ed. 130; Railway Co. v. Whitton, 13 Wall. 270, 20 L. ed. 571; Muller v. Dows, 94 U. S. 444, 24 L. ed. 207; Memphis & C. R. Co. v. Alabama, 107 U. S. 581, 27 L. ed. 518; Patch v. Wabash Railroad Co., 207 U. S. 277, 52 L.. ed. 204; Minot v. Philadelphia, W. & B. R. Co., Fed. Cas. No. 9,645 (2 Abb. U. S. 323); affirmed in 18 Wall. 206, 21 L. ed. 888; St. Louis, A. & T. H. R. Co. v. Indianapolis & St. L. R. Co., Fed. Cas. No. 12,237 (9 Biss. 144); Horne v. Boston & M. R. R., 18 Fed. 50; Colglazier v. Louisville, N. A. & C. Ry. Co., 22 Fed. 568; Union Trust Co. v. Rochester & P. R. Co., 29 Fed. 609; Page v. Fall River, W. & P. R. Co., 31 Fed. 257; Phinizy v. Augusta & K. R. Co., 56 Fed. 273; Taylor v. Illinois Cent. R. Co., 89 Fed. 119; Smith v. New York, New Haven & H. Railroad, 96 Fed. 504; Walters v. Chicago, B. & Q. R. of action arose in another State from that where it is sued.23 Co., 104 Fed. 337; Boston & Maine R. R. v. Hurd, 108 Fed. 116, 47 C. C. A. 615, 56 L.R.A. 193; Goodwin v. New York, N. H. & H. R. Co., 124 Fed. 358; Goodwin v. Boston & M. R. R., 127 Fed. 986; Alabama & G. Mfg. Co. v. Riverdale Cotton Mills, C. C. A., 127 Fed. 497; Lake Shore & M. S. Ry. Co. v. Eder, C. C. A. 174 Fed. 944; St. Louis & S. F. R. Co. v. Cross, 171 Fed. 480; Fairfield v. Great Falls Mfg. Co., 175 Fed. 305; Peterborough R. R. v. Boston & M. R. R., 239 Fed. 97; Lewis v. Maysville & B. S. R. Co. (Kentucky), 76 S. W. 526, 25 Ky. Law. Rep. 948; Illinois Cent. R. Co. v. Hibbs (Kentucky), 78 S. W. 1116, 25 Ky. Law Rep. 1899; Horne v. Boston & M. Railroad, 62 N. H. 454; Allegheny County v. Cleveland & P. R. Co., 51 Pa. (1 P. F. Smith), 228, 88 Am. Dec. 579; Baltimore & O. R. Co. v. Pittsburg, W. & K. R. Co., 17 W. Va. 812. This distinction was noted by the court in Southern Railway Co. v. Allison, 190 U. S. 326, 337, 338, 47 L. ed. 1078, 1083, 1084; but without stating whether it would be followed in the future. Contra, Nashua & Lowell R. R. Corp. v. Boston & L. R. R. Corp., 136 U. S. 356, 34 L. ed. 363. In that case, two railroad corpora tions with the same name, having their junction at the State line, were respectively incorporated by the laws of New Hampshire and Massachusetts, the New Hampshire corporation being the first created. Their subsequent consolidation was first authorized by a law of Massachusetts, which, by its terms, did not take effect until authorized by a law of New Hampshire and ac cepted by the stockholders, both of which authorities were subsequently obtained. It was held: that the consolidated company, a New Hamp shire corporation, might sue another Massachusetts corporation for an accounting in a suit in the Circuit Court of the United States for the District of Massachusetts. Of this case, Judge Lowell said: "The Supreme Court, although, perhaps not with complete logical consistency, treated the plaintiff as being a corporation created in 1835," the date of the first incorporation prior to the consolidation, "by New Hampshire and by New Hampshire alone. The two corporations of New Hampshire and Massachusetts, operated together, was held, by the Supreme Court, to constitute * * an anomalous union of two corporations created for distinct purposes by different States, which had been united as to their business and property, but not as to their corporate existence." Goodwin v. N. Y., N. H. & H. R. Co., 124 Fed. 358, 365. The statutes of Alabama required a railroad company, previously incorporated in Tennessee, to open books in Alabama for the subscription to its capital stock, in order to afford citizens of that State an opportunity to subscribe to a specified proportion of the same, and also provided that elections for directors should be held at the same time in both Alabama and Tennessee; the court held, that by reason of the particular language used in the act, there had been a new corporation formed in Alabama; and that the company could not remove a suit brought against it in Alabama by a citizen of that State. Memphis & Charles Where the foreign corporation, subsequent to the injury which caused the suit, became incorporated in the State where the injury was done, it was held that, for the purposes of the suit, it should be treated as a foreign corporation.24 Where there is a merger, one corporation remaining in existence and the other being absorbed in the same, the company continues to be a citizen of the same State as that of the former.25 In case of a consolidation of corporations chartered by different States; if the consolidation creates a new corporate entity and is made under the laws of a single State, it seems that the new company must be treated as a citizen of such State alone.26 If such consolidation, however, is made under the laws of both the States, then, it has been held: that the consolidated corporation is to be treated as a citizen of both, and when sued in either State by a citizen thereof, it has no right of removal; 27 but that the District Court. ton R. R. Co. v. Alabama, 107 U. S. 581, 584, 27 L. ed. 518, 519. 23 Patch v. Wabash Railroad Co., 207 U. S. 277, 283, 52 L. ed. 204, 207. 24 Mowery v. Southern Ry. Co., 129 N. C. 351, 40 S. E. 88. 25 Lee v. Atlantic Coast Line R. Co., 150 Fed. 775; where the fact that the transaction left a large part of the capital stock of one of the companies outstanding and all that of the other surrendered and cancelled; was held, to be evidence of the intent that the former company should continue in existence. 26 Westheider v. Wabash Railroad Co., 115 Fed. 840. There the former corporations conveyed all their property to the new company, and the agreement of consolidation was recorded in the offices of the Secre tary of State and recorders of the different counties where one of the railroads was situated in Illinois; but the new corporation was Held to have been incorporated under the laws of Ohio and to be a citizen thereof, and not a citizen of Illi nois. In Patch v. Wabash Railroad Co., 207 U. S. 277, 52 L. ed. 204; Winn v. Wabash Railroad Co., 118 Fed. 55, it was held, that the same consolidated company remained, in each of the States where one of its constituents was situated, a citizen thereof. For a case deciding which of two corporations of the same name was the plaintiff's employer see Postal Telegraph-Cable Co. v. Darrow, C. C. A., 250 Fed. 581. 27 Muller v. Dows, 94 U. S. 444, 24 L. ed. 207; Patch v. Wabash Railroad Co., 207 U. S. 277, 52 L. ed. 204; Chicago & W. I. R. Co. v. Lake Shore & M. S. Ry. Co., 5 Fed. 19, 10 Biss. 122; Johnson v. Philadelphia, W. & B. R. Co., 9 Fed. 6; Paul v. Baltimore & O. & C. R. Co., 44 Fed. 513; Goodwin v. New York, N. H. & H. R. R. Co., 124 Fed. 358; Goodwin v. Boston & Maine R. R., 127 Fed. 986; Wasley v. Chicago, R. I. & P. Ry. Co., 147 Fed. 608; Cummins v. Chicago, B. & Q. R. Co., 193 Fed. 238; Case v. Atlanta & C. A. L. Ry. Co., 225 Fed. 862. But see Nashua & Lowell R. R. Cor of the United States has jurisdiction of a suit against it in one of these States by a citizen of another.28 A general law enabling foreign corporations of a certain class to transact business in a State upon compliance with certain conditions, or a special enabling law to such effect, does not prevent a corporation which complies with the same from removing a suit against it because of a difference of citizenship between it and a citizen of such a State.29 The appointment of an attorney in a foreign State with a consent that process served upon him shall bind the corporation; 30 or the operation of a railroad in another State under a lease,31 poration v. Boston & Lowell R. R. Corporation, 136 U. S. 356, 34 L. ed. The Boston & Albany Railroad Company has been held to be a corporation of both Massachusetts and New York so as to justify the assessment of a transfer tax on its shares in each State. Moody v. Shaw, 173 Mass. 375; Matter of Cooley, 113 App. Div. (N. Y.) 388. 28 Marshall v. Baltimore & O. R. Co., 16 Howard 314, 14 L. ed. 953; Wheeling v. City of Baltimore, Fed. Cas. No. 17,502 (1 Hughes, 90); Williamson v. Krohn, 66 Fed. 655, 13 C. C. A. 668, 31 U. S. App. 325; Missouri Pac. Ry. Co. v. Meeh, C. C. A., 69 Fed. 753, 30 L.R.A. 250; Smith v. New York, N. H. & H. R. Co., 96 Fed. 504; Winn v. Wabash R. Co., 118 Fed. 55; Wasley v. Chicago, R. I. & P. Ry. Co., 147 Fed. 608. 29 Owen v. New York Life Ins. Co., Fed. Cas. No. 10,631 (1 Hughes, 322); Scott v. Texas Land & Cattle Co., 41 Fed. 225; Amsden v. Norwich Union Fire Ins. Soc., 44 Fed. 515; Amsden v. Traders' Ins. Co. of Chicago, 44 Fed. 515; Goodloe v. Tennessee Coal, Iron & R. Co., 117 Fed. 348: Morton v. Mutual Life Ins. Co., 105 Mass. 141, 7 Am. Rep. 505; Fisk v. Chicago, R. I. & P. R. Co. (New York), 53 Barb. 472; Newhall v. Atlantic, etc., Ins. Co., 8 Phila. 106. 30 Lee v. Aetna Ins. Co., Fed. Cas. No. 8,181; Hatch v. Chicago, R. I. & P. R. Co., Fed. Cas. No. 6,204 (6) Blatchf. 105); Owen v. New York Life Ins. Co., Fed. Cas. No. 10,631 (1 Hughes, 322); Fales v. Chicago, M. & St. P. Ry. Co., 32 Fed. 673; Scott v. Texas Land & Cattle Co., 41 Fed. 225; Amsden v. Norwich Union Fire Ins. Soc., 44 Fed. 515; Amsden v. Traders' Ins. Co. of Chicago, 44 Fed. 515; Morton v. Mutual Life Ins. Co., 105 Mass. 141, 7 Am. Rep. 505; Fisk v. Chicago, R. I. & P. R. Co. (N. Y.), 53 Barb. 472; Stevens v. Phoenix Ins. Co., 41 N. Y. 149; Newhall v. Atlantic, etc., Ins. Co., 8 Phila. 106; Fox v. American Casualty Ins. & Security Co. (Pennsylvania), 12 Pa. Co. Ct. R. 207, 2 Pa. Dist. R. 158. 31 Baltimore & O. R. R. Co. v. Koontz, 104 U. S. 5, 26 L. ed. 643; Callahan v. Louisville & N. R. Co., 11 Fed. 536; Crane v. Chicago & N. W. Ry. Co., 20 Fed. 402; affirming Chicago & N. W. Ry. Co. v. Crane, 113 U. S. 424, 28 L. ed. 1064; Wilkinson v. Delaware, L. & W. R. Co., 22 Fed. 353; Willson v. Winchester & P. R. Co., 99 Fed. 642, 41 C. C. A. |