C. & W. I. R. R. Co. vs. L. S. & M. S. R'y Co.

ing for the removal of the cause to this court. On the same day the Chicago & Western Indiana Railroad Company filed an answer to said petition, averring that the original bill was filed against the Lake Shore & Michigan Southern Railway Company, as a corporation of the State of Illinois only. The petitioner alleged the necessary amount required by the statute as the subject of controversy, and executed the proper bond. The State Court refused to grant the prayer for removal, and a transcript has been taken of the record of the State Court and leave is asked to file it, and have the cause docketed in this court, on the ground that it is a case properly removable under the Acts of Congress.

On the face of the petition the case is removable, but under the 5th section of the act of 1875, it has been submitted to the court upon the facts as heretofore stated and the question is whether, when a corporation is created by the laws of one state, and then becomes consolidated with the corporations of other states by virtue of the laws of the state of its creation and the other states, and then changes its name, and is sued by that name in a court of the state of its creation by a corporation of the same state, one of the corporations created by the laws of another state can go into the State Court and have the cause removed into the Federal Court.

When the suit was brought in the State Court against the Lake Shore & Michigan Southern Railway Company, we must assume that the corporation meant was that created by the laws of Illinois. The laws of other states which created the corporations of those states had no force in the state of Illinois, except by virtue of its legislation, and therefore the consolidated corporation of that state became such by the laws of Illinois, and the result of the combined legislation of the several states was that, as to Illinois, the corporation of that State was the sole representative of the other corpora

C. & W. I. R. R. Co. vs. L. S. & M. S. R'y Co.

tions. It may be said, therefore, that in consequence of the legislation of the various states, the corporation of each state became an integral part of the consolidated railroad company between Buffalo and Chicago, whose interests were in common, and yet as regards the respective corporations, each was a legal entity, existing by virtue of the laws of the state of its creation. This, I understand, is the effect of the decisions of the Supreme Court of the United States upon this subject.

It is claimed on the part of the original defendant, that this case is like that of the St. Louis, Alton & Terre Haute Railroad Company vs. The Indianapolis & St. Louis Railroad Company,' and therefore that case in principle decides this, because it was there held that the Federal Court had jurisdiction. That was an original bill filed by a corporation of the state of Illinois against corporations of Indiana and Pennsylvania, the Indiana corporation being consolidated, it is true, with a corporation of Illinois, the plaintiff in the suit. This is not a suit brought by a New York corporation, an integral part of this consolidated company, against an Illinois corporation, but it is a suit brought by an Illinois corporation against another Illinois corporation, an integral part of a consolidated company, of which the New York corporation also constitutes a part. It may be that where there is a consolidation under the laws of different states, of the corporations of those states operating a railroad, that one of the corporations can file a bill in equity in the Federal Court for the protection and maintenance of its own interests, against another corporation, part of the consolidated company, and created by a different state from that of the plaintiff, but that is not this It cannot be said that this is a controversy wholly between citizens of different states, because it is a controversy between two citizens of Illinois, each being a corporation of 19 Bissell, page 144.

case.

C. & W. I. R. R. Co. vs. L. S. & M. S. R'y Co.

Illinois, and therefore it is a controversy in part only between the corporation plaintiff and the corporation defendant that seeks the removal of the cause.

Neither is this case like that of the Chicago & Northwestern Railway Company vs. The Chicago & Pacific Railroad Company, where the plaintiff, although consolidated with a corporation of Illinois, sued as a corporation of Wisconsin. The principle contended for, as I understand, by the defendant in the original suit, amounts to this: that because a person is sued in a State Court by a citizen of that state, and a citizen of another state is jointly interested with the defendant in the subject of controversy on which the suit is brought, the non-resident citizen has the right to go into the State Court and ask for the removal of the cause to the Federal Court. I do not think that that principle can be maintained, and therefore I shall refuse to take jurisdiction of this case.

NOTE. Where two corporations of two different states are consolidated under one name, they cannot join in bringing a suit in the Federal Court against a defendant, a resident of one of the states creating one of the corporations. The two corporations under the law concerning the jurisdiction of the Federal Courts on account of the place of residence of the parties, are regarded as entirely distinct and separate; and the fact that their principal place of business is in one of the states does not alter the rule. Ohio & Mississippi R. R. Co. vs. Wheeler, 1 Black 286.

But a citizen of one state may sue in the Federal Courts a corporation of another state, although that corporation is consolidated with a corporation created by his own state. C. & N. W. R'y Co. vs. Whitton, 13 Wallace, 270.

Where a corporation of Kansas was allowed by the laws of the state of Missouri to purchase a line of railroad in that state without being incorporated there, it was held, in a suit brought in the State Court of Missouri by a citizen thereof, to recover for injuries sustained on the line of road in that state, that the corporation was there a citizen of the state of Kansas, and as such entitled to have the cause removed into the Federal Court. Williams vs. M., K. & T. R'y Co., 3 Dillon, 267. So also where a railroad company which was incorporated in 16 Bissen, 219.

C. & W. 1. R. R. Co. vs. L. S. & M. S. R'y Co.

one state leased a line of railroad lying in another state, and operated the same as owner thereof, and an injury occurred on such leased line of road, it was held that the corporation was entitled to have removed to the Federal Court a suit brought in the State Court by the representatives of the injured person, residents of that state, to recover damages against it for such injury, on the ground that it was only a citizen of the state where it was incorporated, and that the leasing of lines in another state did not render it a citizen of that state or deprive it of any rights as a citizen of a foreign state. Railroad Company vs. Kooutz, 104 United States. This last case overrules and reverses, B. & O. R. R. Co. vs. Wightman's Adm'r, 29 Grattan 431, the case being taken to the United States Supreme Court from the Court of Appeals in Virginia; and see also B. & O. R. R. Co. vs. Cary, 28 Ohio State, 208.

Where a suit against a corporation has been removed upon its petition from a state to the Federal Court, on the ground that there was in it a controversy between citizens of different states, and a motion is made by the plaintiff to remand the cause to the State Court, the burden of proof is on the corporation to show that it is not a citizen of the same state with the plaintiff. Copeland vs. Memphis & Charleston R. R. Co., 3 Woods, 651.

For other cases upon this subject, besides those referred to in the opinion, see also, Baltimore & Ohio R. R. Co. vs. Harris, 12 Wallace, 65; Marshall vs. B. & O. R. R. Co., 16 Howard,314; B. & O. R. R. Co. vs. Gallahue's Administrator, 12 Grattan, 655; Goshorn vs. Supervisors, 1 West Virginia, 308; Minot vs. Philadelphia, etc. R. R. Co., 2 Abbott's United States Reports, 323; Copeland vs. Memphis & Charleston R. R. Co., 3 Woods, 651.

Kemna vs. Brockhaus.

ALMA KEMNA vs. THEODORE BROCKHAUS et al. CIRCUIT COURT-EASTERN DISTRICT OF WISCONSIN-JANUARY, 1881.

1. CHANGE OF CITIZENSHIP.-To effect a change of citizenship from one state to another, there must be an actual removal, an actual change of domicile, with a bona fide intention of abandoning the former place of residence and establishing a new one, and the acts of the party must correspond with such purpose.

2. EVIDENCE-INTENTION OF PARTY.—And in such case it is competent for the party to testify to his purpose and intention as connected with his acts, where they are brought in question.

Jenkins, Elliott & Winkler, for plaintiff.

Cotzhausen, Sylvester & Scheiber, for defendants.

DYER, J.-This case has been heard upon a plea to the jurisdiction of the court. The complaint alleges that at the time of the commencement of the suit the plaintiff was a citizen of the state of Minnesota. The plea avers that she is, and always has been, a citizen of the state of Wisconsin, of which state the defendants are citizens, and proofs have been taken on the question of the plaintiff's residence and citizenship. The general rule upon the subject of citizenship is well settled. It is that, "in order to give jurisdiction to the courts of the United States, the citizenship of the party must be founded on a change of domicile, and permanent residence in the state to which he may have removed from another state. Mere residence is prima facie evidence of such change, although, when it is explained and shown to have been for temporary purposes, the presumption is destroyed. The intention is to be collected from acts." "If a citizen of one state

991

'Butler vs. Farnsworth, 4 Washington, 101.