660

FEDERAL REPORTER,

vol. 37.

Counsel for Armstrong, receiver, have argued that the court may retain jurisdiction of this case because of the fact that Armstrong is a receiver of a national bank; and they further urge that it is a suit for "winding up the affairs" of a national bank, within the meaning of section 4 of the act of 1887. I would not be inclined to concur in this view of the matter, but as jurisdiction of the case is retained for reaRons hereinbefore expressed, it is unnecessary to pass upon this question. My conclusion is that the motion to remand this case must be denied.

HILLS V.RICHMOND

& D. R. Co.

(Oircuit Oourt, No D. Georgia. June 16, 1888.)

t.

COURTs-JURISDICTION-CARIUERs--'INJURmS TO' PASSENGERS.

A railroad company, whose road extends from Atlanta, Ga;, through South Carolina to Charlotte, N, C., the office of its division superintendent being in Atlallta, may be sued in the Georgia courts by a citizen of Georgia, fOr personal injuries received while traveling on its road in South Carolina, especially where it appears that tbe train on wbich the happened was being operated under the superintendent's control.
,

2.

RAILROAD COMPANIES-AcTIONS":"'SERVICE OF PROCESS.'

Under Code Ga. 3407, which provides that the ,lessee of a railroad 'shall be liable to suit of any kind, in the same court' orjui"isdiction as the lessor before the lease, service of summons in an actioJ;l, against a lessee-railroad company by leaving a copy at the office of the superintendent in the county in which the declaration alleges were and are situate the principal offices of the lessor and lessee, is good. , "

N. J. & T. A. Hammond, for plaintiff. , Pope Barrow and Jackson & Jackson, for defendant.' '
NEWMAN, J. The demurrer filed in this case makes the question that the cause of action did not originate in the county: of Fulton or state of Georgia, but did originate in the state of South Carolina. therefore the Georgia COUl:ts have no jurisdiction. That foreign corporations may be sued in Georgia is well settled. Berry v. Railroad Co., 39Ga. 554; Insurance Co. v. Carrugi,41 Ga. 660; Wilsonv. DWllforth, 47 Ga. 676; road Co. v. Railroad (Jo., 51 Ga. 458. The qualification to this rule is stated to be that it cannot be sued for wrongs done or contracts made in another state.' This is said tabe decided in the:caseofBawknight v. 8Urancp,(Jo.,55 Ga. 194. 'rhat was a suit on a foreign judgment against a foreign insurance company. The decision of the, court is that "Georgia courts have no jurisdiction of suits· in persdnam against a foreign corporation unless the contract sued, on has been .inade in ,Georgia, or the Georgia agent is C10nnected therewith within the scope of his authority as the maker of such contract." It is said by defendant's counsel that the same ,flUe applies to torts as is bere laid Cdnceding all "this; arid following this decisiori,canit:.be saidthll.l

attLs' 0.

RICHMOND, &' D. B. CO.

661

gia agent of the Richmond & Danville Railroad, who is served here, had no connection with the cause of action? The whole record shows that E. Berkeley, who was served, was the superintendent and manager ofa continuous line of railroad from Atlanta to Charlotte, N. C., through the state of South Carolina, and that plaintiff, while aboard a train of cars running over this line, through, and while in, the latter state, was injured by what is alleged to have been the bad condition of the track. Of this track the official served was in charge as the division superintendent of the defendant corporation. Moreover, he is not merely an agent, as in the Bawknight Case; he is a division superintendent, operating and controlling an extensive line of railroad. I do not think, conceding'that the rule laid down in that case is correct, that it is applicable to the facts of this case. It appears, in addition to this, that the plaintiff is a citizen of Georgia. Shall it be held that a citizen of this state is required to leave the principa1placeOf transllctingthe business of that division of a road on which hawas injured to go into another state to serve a subordina.te of-, flcer who would, presumably, immediately forward papers served to, the superintendent in Atlanta? I think not. The plea to the jurisdiction in this case sets up substantially the same defense as the demurrer,while the language of the plea attempts to bring the case within the case in 55 Ga., suprtJ,. 1 think the whole record, taken together, shows that the track on which the alleged accident happened, the train which was derailed, and the employes in charge of the, train, were under thesuperin-, tendent's charge, and, consequently the matter in which the cause of,'action originated was within the scope of his authority as such, superin-' tendent. This view of the subject controls the further question made, -that a ,railroad cOmpany in Georgia can only be sued in the county where its principal office is located, or where the wrong was committed. It is a foreign corporation, the lessee of the Atlanta & Charlotte Railway. The declaration alleges that the principal office of the lessee is, and that of the lessor was; in Fulton county, Ga. Service is made by leaviug a copy at the office of the superintendent in 'Atlanta, Fulton county, Ga. Code, § 3407; Acts 1884-85, p. 49. 1 I think that the court has jurisdiction, and that the service is good. The demurrer to the declaration must be overruled, and the plea to the' jurisdiction held insufficient. As to jurisdiction of the United States courts in cases ofthis.cha.rRcter, see Sayles v. Insurance Co., 2 Curt 212; Block v. Ra.,ilroad Co., 21 Fed. Rep. 529; U. S. v. Telephone Co., 29 Fed. Rep. 17.
"'Thelessees.of * * *sbBll be liable to suit. ofBny kind in t.be same court. or. . BII the lessors or owners ot tbe railrOad were 'betore the' jurisdict.ion .. ".
" '

'

662

FEDERl..lL

REPORTER, vol. 8'1.,

FREEMAN 11.' THE UNDAUNTED.

(Circuit OQ'Uf't, No. D. Oalifornia.

February 15, 1889.)

CONSTITUTIONAL LAW-INTERSTATE COMMERCE-,-PILOTS-HALF PILOTAGE.

.

Pol. Code Cal. § 2466, imposes half pilotage on vessels when a pilot is de· clined, but section 2468 exempts" from all charges for pilotage, unless a pilot be actually em ployed. all vessels coasting between S,an 'rancisc, 0 and any port , in OrelfoIh or in Washington or Alaska territories. and all vessels coasting between t)le ports of this Rev. St. p. S. § 4287, provides that "no regulations or provisions shall be adopted by any state which shall make any discrimination in the rate of pilotage or half pilotage, between vessels sailing between the portlj of and vessels sailing between the ports of difIerentlltates." Held; that the California statute is void for unlawful discrimination, and half pilotage cannot be collected under it.
F,

In Admiralty. Appeal from district court. Libel by E. M. Freeman against the ship Undaunted, for half pilotage. The district court dismissed the libel and libelant appeals. P. G. Wigginton,for appellant. Milton Andros, for appellee. Before SAWYER, Circuit Judge.
SAWYER, J. This is a suit for half pilotagE', the captain of the Un·' daunted,aregistered American vessel, having refused to employ a pilot when leaving the port of San Francisco, for the port of New York. The only question iS,whether the statute of California allowing half pilotaj:te, is not in conflict with the statute of the United States upon the subject, and therefore,void. Under section 2466 of the Political: Code'of California, vessel$ of her class are required to pay "five dollars per foot draft, and four 'cents per ton for, each and every ton registered measurement," and half pilotage when a pilot is declined. But section 2468 "exempts fromal1chal'ges for pilotage, unless a pilot be actually employed, all vessels coasting between' San' Francisco and any port in· Oregon. or in Washington, or Alaska territories, and all vessels coasting the ports of this state." thereby excepting them from the tion of the general provision of section 2466. Thus by the exprEll:ls pro. visions of the state statute, a discrimination is made between" vessels cORstingbetwet:n San Francisco and any port of Oregon, or ton, or Alaska territories, and all vessels coasting between the ports of this state," and "vessels.sailing between the ports:"of California and any' of the other states of the Union-the discrimination being against all the last-named vessels, the latter being required to pay half pilotage when depline.thei services. OCapilot, while the wholly exempt froillhliJf pilotage th'e same Clrcumstailces and conditions. But, section 4237 of the Revised Statutes of the United States proddes that "no regulations or provisions shall be adopted by any state which shall make any discrimination in the rate of or half pilotage, between vessels sailing between the ports of one state, and vessels sailing between the ports of different states * * * and all existing regulations, or