FEDERAL REPORTER.
the circuit court of the next adjoining state, or the next adjoining circuit court," that it was the intention to give all the powers necessary in order to carry the litigation between the parties into judgment or decree. Notwithstanding the statute merely refers to and authorizes "the proper process for the due execution of the judgment or the decree rendered in the cause" to run into the district from which the cause was removed, it is apparent that unless the court has the power necessary, and which often must be exercised by courts in order to reach the judgment or decree, that there never could be any process issued to execute the decree or judgment. It is, therefore, one of those cases where the power is necessarily implied from the express declaration of powers given, and without which the latter powers might never be called into exercise.
HORNE
v.
BOSTON
& M. R. R. October 13, 1883.)
(Olrcuit Oourt, D. New Hampshi,re. DICTION OF FEDER.<\.L COURTS.
The supreme court hasdecided that when the same corporation owning a road which runs through several states is chartered by each of them, it is, by a useful fiction, to be considered for purposes of jurisdiction a citizen of each of the states; and where such'a corporation is sued in one.of the states in which it holds a charter, as a citizen of that state, it cannot set up that it is likewise a citizen of another. 2. SAME.
The fiction that makes two or three corporations out of what is in fact one, is established for the purpose of giving each state its legitimate control over the charters which it grants; !Jut the acts and neglects of the corporation are done by it as a whole.
Motion to Remand. Marston ct Eastman, for plaintiff. Mr. Copeland, for defendant. LOWELL, J. The plaintiff, a citizen of New Hampshire, brought his action in one of the courts of that state against the defendants, as a corporation duly established and having a place of business at Exeter, in the same state, for personal injuries sustained through the fault of the defendants· at Lawl'ence, in the state of Massachusetts, setting his damages at more than $500. The defendants, in due season, filed their petition, and moyed to remove the action to this court. The justice refused to order the removal, and his ruling has been sustained by the full bench of the supreme court of New Hampshire. I have seen the opinIon of the court, and agree with it, but as it may not be published for some time I will give briefly the facts of the case and the authorities which apply to them. The defendants were first incorporated in New Hampshire by their
BORNE V. BOSTON & 1lrI. R. R.
51
present name, and certain short lines of railroad were from time to time constructed in Massachusetts, which together made a continuous line of road from Boston to the state of New Hampshire, and was known as the Portland & Boston Railroad. There was a railroad chartered in Maine, under which certain parts of what is now the road of the defendants in this state wtlre built and operated. The corporations in the three states were afterwards consolidated under substantially identical laws by which the Boston & Maine Railroad was chartered in Maine and Massachusetts, as it already had been in New Hampshire. The interests of the stockholders were united upon equitable conditions agreed upon by them, while each state required certain things to be done annually by the corporation which it had chartered. The supreme court has decided that when the saille corporation, owning a road which runs through several states, is chartered by each of them, it is, by a useful fiction, to be considered, for purpos6s of jurisdiction, a citizen of each of the states. Ohio <t M. R. Co. v. Wheeler, 1 Black, 286. The operation of this rule is now usually avoided by chartering the company in a single state, and merelyauthorizing that identical company to do business. in other states. In such a case it remains always a citizen of the first state. Railroad Co. v. Koontz, 1046. S. 5; MissOU1'i, K. <t T. Rl!. Co. v. Texas Ii St. L. Ill!. Co. 1(} FED. REP. 497; Callahan v. Louisrille <t N. R. Co. 11 FED. REP. 536. If, however, there .are charters in several states, the corporation, when sued in one of them as a citizen of that state, cannot, set up that it likewise is,acitizen of an.other. Thus, in Ry. Co. v. Whitton, 13 Wall. 270, a corporation chartered by Illinois and Wisconsin was sued ass. citizen of Wisconsin. by a citizen of Illinois. Afterwards the plaintiff himself removed the CH,use to the circuit court, and the defendant company moved to remand it, on the ground it was a citizen of Illinois, but the court held that when sued iq Wisconsin, as a citizen of that state, it could not deny its citizenship there. The only difference between that case and this is that her,e the plaintiff is a citizen of the state where the action is brought; but this dO,es not affect the argument that the defendant company should not be permitted to deny its citizenship in this state. So it ha$ been held in three circuits. C. <t W. I. R. Co. v. L. S. <t M. S. Ry. Co. 5 FED. REP. 19; Uplwffv. Chirago, St. L. <tN.O. R. Co. ld. 545; and see the very able opinion of Judge HAMMOND in that case; Johnson v. Philadelphia, W. <t B. R. Co. 9 FED. REP. 6. The ca.se of Chicago et N.W. R.Oo. v. Ohicago et P. R. Co. 6 Biss. 219, is distinguished by Judge' DRUMMOND/who decided both cases, in 5 FED. REP. 19, ubi 8upra, and his'temarks will apply to Nashua et L. R. Co. v. Boston <t L. R. Co. 8 FED. REP. 458. See, also, the note of the learned reporter to Johnson v. Philadelphia, W.¢ B. U. Co·· supra.
52
This being the state of the authorities, I will only add that the fiction which makes two or three corporations out of what is, in fact. one, is established only for the purpose of giving each state its legiiimate control over the charters which it grants, and that the acts and neglects of the corporation are done by it as a whole. It is immaterial, in considering the question of jurisdiction, that the damage complained of was suffered within. the limits of Massachusetts, and that the judgment will bind the corporation in that state. See Uphoff v. Chicago, St. L. <t N. O. R. CQ., supra. Motion to remand grallted.
RICH t1. TOWN OF MENTZ.
(Circuit C01/II't, N. D. New YQ1'k. Beptember, 1883.) L An act providing for the issue of bonds, and stating that certain parties shall , be deemed tax-payers and others shall not, does not make two c)asses of taxpayers,-it makes one; and a petition alleging that the signers are a majority of the tax-payers of the town is not invalidated by the omission to state the words" not inclnding those taxed for dogs or highway tax only," notwithstanding such negative clause was used in the act providing. for the issue of bonds, and for the reason th'\t, in the word" tax.payer," the al1t expressly excludes persons so taxed. l. SAME-ENFORCEMENT OF .illuNICIPAL BONDS BY THE FEDERAL CoURTS.
MUNICIPAL BONDS-OMISSION OF CERTAIN ALLEGATIONS TAX-PAYERS.
m
A PETITION 011'
In proceedings for the enforcement of payment of municipal bonds, the policy of the federal courts is to sustain, if possible, the validity of the bonds, and they will refuse to invalidate the same, except for grave and serious in1l.rmities. Even where the question which arises is a doubtful one, a construction should be given to the statute which upholds the bonds, rather than one which wvali· dates them in the hands of a bona Me holder.
COXE, J. ThiEl action is upon coupons cut from bonds purporUnR to ha"'e been issued by the defendant. At the trial the plaintiff had a verdict. The defendant now moves for a new trial. The point disputing the sufficiency of the petition is the only one that will be considered: The petition was presented to the county judge.in May, 1872. At that time chapter 925 of the Laws of 1871 was in force. Section 1 pl'ovides: "When,ever a majority of the tax-payers of any municipal corporation in this state' Who are taxed or assessed for property, not including those taxed lor dogs or highway ta:» upon the last preceding assessment roll or taxlist of said, corporation, and who are assessed or taxed, or represent a majority of the taxable property, upon said last assessment roll or tax-list, shall make application to the county judge of the county in which such municipal corporation is situate, by petition, verified by one of the petitioners, setting torth that they are such majority of tax-payers, and are taxed or assessed for
James R. Oox, for plaintiff. F. D. Wright, for defendant.
At Law.
