HORG.IL.'l
EAST TElS'NESSEE .I: V. R. CO.
705 '
MORGAN
et al.
fl. EAST TENNESSEE
& V. R.
(Circuit Cot/Jrt, N. 011'
D.
Georgia.
March Term, 1888.)
'When.o; railroad charter. gives the ;compBDy B right to sell its road within the state. tR. any company,incor!?Qrated by state, the purchasing company to have "I1U the rights and pnvileges" of the seller, a non-resident company, which purchoElelJ the road to form an extension of its line,does not thereby become 6 res- . jdljtlt CO!1'Oration, so as to take away ita right to remove a c6.11se from the state to ,'a fader&! court. . "
OF RAILRO.lD CORPORATIONS.
On Motion to Remand'to the state court from which the cause was removed)' Motion refused. W. H.:Dabney and' R. T. Fouche, for the motion. J. W.· Underwood, opposed. MCCAY,J. This was a suit commenced in the superior court of Floyd oounty, Ga., against the Virginia & East Tennessee Railroad Company; and upon the petition of the defendant, claiming that it was aoorporation of the state of Tenneasee, had been removed to thiEf oourt for trial. Plaintiff now moves to remand the case, on the, ground, that the defendant" though a oorporation of Tennessee, is also a corporation of Georgia, ,and that this oourt has no jurisdiction of the controversy, since tbe parties are all citizens of Georgia. The question turns upon the following facts: The defendant was incorporated by the legislature of Tennessee, with authority to build and operate a railroad from Clevelarid, 'renn., to the Georgia line, and to extend its road to DaltQn,' Ga., by oonsent of the Georgia auth(Jrities. By various acts of the islature ofGeorgia this privilege was granted, and the road built, but no, expressed corporate rights in Georgia were by these aots conferred. The company got the right to extend anuoperate its road to DaltoI;l on certain: conditions, and, so far as this extension of ilie original road to. Dalton is.ooncerned, the right of the company has always been so treated. In 1874 or 1875 a railroade'Xtending froUlDalton-,Ga., to Selma, 1\la,,· known as the "Selma, Rome & Dalton Railroad," was sold u,nder-dUEl: process of law for the benefit of its creditorS,f1ol1d was bought tai'n persons, who afterwards, so Jar as that portion of the road lyingin Georgia is concerned, were incorporated under the name of the "SQuth. em Railroaa Company of Georgia." One of the provisiQns of this QQarter waaas tollows: ··Sec.6. That tbe said company shall have power to lease or sell "tbeir property within th.e state of Georgia to any other railroad company within tt:le state o( Georgia. and also to Such .railroad companies of other states as, by the laws of ,such state, may be so authorized, and upon such terms as mar be agreed upon by the board of directors and approved by a majority in terest of the stockholders of this company; ahd the said company so leasing or- buying shall have and possess all the rights and privill:!ges of this com. pany."
. :Urider this section of the charter the company sold that part of the 'Selma;:, Rome & Dalton Railroad'lyingiri Georgia to the East Tennessee v48F.no 9-45
706
",,'"
& Virginia Railroad Company, which has been, and now is, in posses· sion of and in ()perating said road. It may added in explanation of the situation that this road from Da!ton through Rome to the Alabama and Georgia !ineis in direct extension of the original road of the East Tennessee & Virginia Railroad Company from Cleveland to. Dalton. It is contended by the counsel for plaintiffs that, under these circnm,stances, thedefend,ant is a Georgia corporation, and has, therefore,;I;l0' right to removetbe suit to this court. It is admitted that under,·tOe laws of Ten'ilessee the East rrennessee &: Virginia Railroad Company was authorized to make the purchase of this road, so that at 1ll8tthequestion depends upon the construction to be given to the sixtl section ofthe act incorporating the Southern RailroadCompany of Georgia, and giving it special powetto sell its property,and declaring that the purchasers shall have all the rights and privileges ofthe Southern Railroad Com pany of Georgia. It is claimed that this section, not only by reasoD. of the nature and {)bject of it,but by its expressed casts upon the Tennessee &: Virginia Railroad Company corporate rights in the state of Georgia,and that the defendant .is therefore a citizen of Georgia, 'and the case not removable. Nothing is better settled than that a' gtatlt to a corporation is to be strictly conllltrued; that it takes nothing :by any legislative act except .what was expressly granted. If this be trl1a'of grants to a corporation, it would seem to ·be more em" phaticallytrue of the grant of corporate rights. If, therefore, by a fair construction of this sixth section of the oharter of the Southern Railroad Company or Georgia, its terms are fairly covered without including in it the tight of the purchasing company to be a corporation, then the corporate right is not granted. SUPl>Ose the purchase had been by some Georgia railroad, acting under a Georgia charter, could it for a moment be contended that the Georgia company would become a new corporation?' .Suppose,again, this Georgia Southern Railroad Company of GeoI'gia had only leased. the East Tennessee & Virginia. Railroad its road, would the Georgia Southern cease to exist as a company, and the East Tennessee have its chartered rights? The words used in this section are td be taken altogether. The Southern Railroad Company of Georgia is to sell or lease its property, Ddt its corporate existence; aDd the latter'words are to be: construed;: in reference to the former. The purchasers are to get all the powers arid privileges the old company has ovedts property,-the thing sold, and'the only thing it had a right to seD. Now, the corporation of another state may, by the consent of the legislature,' under a license, enjoy any kind of property or franchise With(m:tbecorning a corporation.. It may own land, c{>nstructrailroads. carryon. ora !tomm0tlcll.rrier, make contracts 'of insur. Ance, 'a11d. do almostanicpnceivable)egal act which .the legislature may license it to,do. In the numerous sa}es of railroads under chancery decrees tlothing.is sold but the property. The corporate right is not the subject of sale. Such a right-the right to be a corporation-depends upon the legislative ,W;i)l" is not to, be sold or mortgaged, except by legislative consent" .And this distinction between the property rights
MORGAtt".EAsT'TENNESSEB' &'V. B. 00.
of the corporation and, its corporate existence is clear, and well recognized by all writers on cotpbrlitfdn law; and this view is sustained by the highest authorities. In Railr.oadCo. v. 12, Wall. 65, the supreme court of the United States held that an act of the legislature of granting to the Bliltimore & Ohio ,Railroad Company the same rights and privileges, iIi Virginia as were, granted it by its Maryland charter did not make it a corporation; that it had' only a license to do such acts in Virginia as ,it had, aright to do in Mar>'land. And in the same ('.aBe it appeared congress had the Bliltimere & Ohio Railroad the right to build a branch in the District of Columbia, with the same rights, benefits, and immunity as were provided by its Maryand the court held even this not to be a grant of corporaacts aait tive authority,but only a: license to do in the District might' do under its charter in Maryland. ,The same doctrine is laid down by District Judge KEy, May, 1882, in Middle 'fennessee. Callahan, v. Railroad>Co., 11 Fed. Rep. 536. This question is also, I think, essentially hivolved in the case of Railroad Co. v. Koontz, 104 U. S. 5. In that'case a Maryland corporation had leased and was operating a Virgiriia railroad under a contract, without any 'legislative authority from either state. The Maryland company was sued in Virginia, and undertook to remove the case to the United States circuit court. This the Virginia court refused, on the ground that, as this Maryland rights of a corporation in Virginia, it was to be company was treated as a Virginia corporation; and this ruling was approved by the Virginia supreme court. and by writ of error was carried to the supreme court of the United States for review. That court said the matter stood on the same footing as if there was legislative anthority for the lease, since the state had not complained, and it in terms deciued that, while the Maryland company was without doubt suable in Virginia, yet as it still was not a Virginia, but 8 Maryland, corporation, it had a right to remove its cause, under the act of congress, to the federlil court. The case of Railroad Co. v. Om,,!!, 28 Ohio St. 208, is to the same effect, and I am unable to see why, on principle, a law of a state granting to a foreign corporation the right, privilege, and immunity to operate a railroad makes 4:he grantee any more a citizen of the state than does a law authorizing a foreign corporation to make other contracts or do other acts as home corporations may, or as citizens may, which is the law, expressed or implied, of almost all contracts in all the states of the Union, and is true by comity, even as regards foreign corporations proper, over almost lill the civilized world. I am therefore of the opinion thatthe motion to remand mup! be denied, and the case stand for trilil in its proper order on the docket of this court.
708
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REPPJ,lTER. _. . '..
;.'
GimENERtI. STEINWAY
et ale
(Oireutt
Court,
8. D. New
York. November 2O,1sss.)
TA.XATION OP COST&-DOCKBT FJlBs.
a demurrer to a bill in equity is sustained, a docket fee of $00 Is taxable fil favor of defendant. , ,
InEquity. Exceptions tooIerk's taxation of costs. Ralph, w: Morrison, for plaintiff. lV. Cotterill and Arthur'll. B,riesen, for defen4itn,ts. SHIPMAN, J. The exception to the clerk's taxation'of in disa1lowing a docket fee Of $20, upon a decree for costs in favor of the de-, fendant; upon a successful demurrer to the complainants' bill, is sustained. ,The defendant's'right taa 'docket fee of $20 is sustained upon the anthqrity of Wooster v."Ha'fldy, 23 Blatchf. 112, 23 Fed. Rep. 49; The AndhOfia, 23 Fed. Rep. 669; McLean v. Olark, Jd; 861; Price v. eolen/#n,'22 Fed. Rep. 694; andScharffv. Levy, 112 U'.S. 711, fj Sup. Ct. Rep. '360., ' , ,
SAENGER tI. NIGHTINGALE
(OirCl/it
court, D.
April Term, 1883.)
1.
l\IORTGA.GE&-PAYMENT--EVInl'!lNCE"':'SUTEMENTS IN INTEREST.
In, a suit to set aside a fOreclosure sale, letters written by the :mortgagor before the foreclosure, and tending ,to show that the mortO'age debt had then been entirely paid, are inadmissiole t'o bind' the purchaser when there is no evidence of a conspiraoybetween him, and :the mortgagor to keep the,mortgage alive after payorder to defraud liubsequent Such letters are merely unsworustatements, made in the interest of the writer. ', The f\Wt that the assignee ()f a mortgage\Vhich constitutes a, valid and, subsisting lien transfers the same to the chilaren of the mortgagor without consideration gives no gt'(iund of complaint to the holder of a second mortgage. OF SECOND MORTGAGEE. '
S.
SAME""
"" LIMITATION' OP ACTIONB-RIdHTS OF SECOND MORTGAGEE.
The fact that a mortgage was foreclosed, by the assignee thereof, in the name of the origitlaI mortgagee. after such assignee had transferred the mortgage to the mOrtgag(jr'll, children, gives holder of·& ilElcond mortgage no right to altack the, title of such children as J;lurchasers at the foreclosurE) sale.
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,AC,t, '"Ga.',1869. d,eClarin g ,th,at:allPro, 00, eding-s, t,0 recover d,e,bts due OOfO,ro June,t, 1865. l!l+alJ be begun by January 1. 1870, is not available in,favor of a second mortgagEie1 to defeat the title of ,the purchasers at the foreclosure of a firstmortgage, thol1gn,as between the parties to it, the first mortgage was barred thereby before its foreclosure. " ,
In Equity. Bill by H. M. Saenger against William Nightingale and others to set aside a sheriff's deed made in pursuance of a foreclosure sale. Decree for defendants. H. B. Tomkins, for complainant. R. E. Lester and W. S. Bassinger, for defendants.