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Fargo agt. McVicker.

Fourth.- [f the company be not technically and completely a corporation in all senses, it is a quasi corporation, and must be conclusively regarded as a citizen of the state of New York upon the principle upon which undoubted corporations are so regarded. The question is simply as to the citizenship of the party-must the plaintift in this suit (whoever or whatever the plaintiff may be) be conclusively regarded as a citizen of the state of New York ?

I. The company in this case must be conclusively regarded as a citizen of New York.

1. It is at least a quasi corporation—an association of individuals exercising far beyond, and tar other than natural powers, rights or privileges. Of this there can be no doubt. (Angell & A. on Corp., 8th ed., $ 25, and cases cited.)

2. The most technically and completely constituted corporation is not a “citizen.” It was originally held by the supreme court of the United States that as to all questions respecting the jurisdiction of the courts of the United States, the courts would look through the artificial being created by the law, (and which was not a citizen,) and beyond the corporate character, to ascertain the citizenship of the members of the corporation; and unless all such members were citizens of another state than the state of which the opposing party was a citizen, deny jurisdiction. The doctrine was found not practical and unsound in principle. While the supreme court has adhered to its original doctrine that corporations are not citizens, and that members can alone have the character of citizenship, yet it is held conclusively that all parties, upon questions as to the citizenship of parties to suits, are estopped from denying that the members of a corporation are other than citizens of the state which gave the aggregate individuals their corporate character. In the language of TANEY C. J., in Covington agt. Shephard, 20 How., 227, 233, " the members of a corporate body must be presumed to be citizens of the state in which the corporation is domiciled, and all parties

Fargo agt. McVicker.

are estopped from denying that fact.” (See the long line of decisions upon this most important question from The Hope Ins. Co. agt. Boardman, 5 Cranch, 517, and The U. S. Bank agt. Deveaux, 5 Cranch. 61, to The Ohio and M. R. Co. agt. Wheeler, 1 Black, 286 ; and especially (besides those above referred to) the intermediate cases of Louisville C. C. R. agt. Letson, 2 How., 497; Marshal agt. The B. and 0. R. R. Co., 16 How., 314, 328; Covington, D. C. agt. Shephard, 20 How., 227, 233).

3. Upon the same principle it must be decided that when this quusi corporation, this aggragate of individuals brings suit, as this is brought, in the exercise of a privilege given by the state in which the suit is brought, although the quasi corporate entity cannot have the character of citizenship, its members must be conclusively deemed citizens of the state giving the privilege, and all parties must be estopped from denying that they are citizens of that state. (See the cases last referred to and particularly The Cov. D. Co. agt. Shephard, 20 How., 227, 232.)

That the statutes have created a quasi corporation—a legal entity—in giving such rights, privileges and powers to these associations, is as plain as that the rights, privileges and powers exist and are beyond natural power to hold or enjoy. That entity cannot be a “citizen“ any more than can a corporation be a “citizen.” The character of citizenship necessarily cannot inhere in either entity so entirely artificial. The same principle that estops all parties from denying that the members of a corporation are citizens of any state, other than that which created the corporation, must estop the members of a joint stock association-likewise a legal entity—from denying that they are citizens of that state, which by grant of right, privilege and power has created that legal entity.

Unless this doctrine be held, no party will have power to compel this company to litigate in the courts of the U. S. in many states.

Fargo agt. McVicker.

Fifth.-If the state statute but gives the company the privilege of suing in the name of its president or secretary, in the state court, yet, for the purposes of this case in either court, Mr. Fargo must be regarded as the party. He is a citizen of New York, and that, in this view, is all that is material.

1. Without the state statute, should Mr. Fargo commence this suit, it is familiar doctrine, it would be well brought for all the associates (certainly if he himself, in fact, is a member of the company), unless the defendant should take advantage of the nonjoinder of other parties plaintiff—an advantage in the state courts only to be taken by answer or demurrer. (Code, § 144, 47.)

2. With reference to questions of jurisdiction dependent on citizenship, defenses must be made in the first instance, and if not made in the first instance, are waived. If the opposing party take a step inconsistent with making such defense, he will be deemed to have waived the right to make such defence, and within the principle of one case cited below, will be estopped from setting it up, even if the state statute be not effective in giving the company right to sue in the name of an officer of the company, in the circuit of the U. S. Yet, as the defendant has removed the case into the circuit, he cannot take advantage (even if the state statute is ineffective there) of the non-joinder of other members of the association. He has regarded the party to the record as the party, and the act is conclusive as to all questions relating to jurisdiction. (Stokes agt. Mowatt, 1 U. S. Law. J., 309; Smith agt Kenochen, 7 Ilow., U. S., 216; Shepard agt. Graves, 14 How., U. S., 505, 512; Livingston agt. Storey, 11 Pcters, 351; And see the cases of Smith agt. Swormstadt, 16 How., U. S., 239; Marshal agt. Balt. and 0. R. R., 16 How., U. S., 314, 328.)

The plaintiff (certainly, if the association be not a corporation) was not compelled to bring this action as it was brought, for the statute is probably merely permissive, and

Fargo agt. McVicker.

the suit probably might have been brought in the name of all the associates.

As the suit is brought as this was, certainly such privileges cannot be claimed, as could be claimed if all the members of the company had been made plaintiffs. If it was desired to prevent removal into the circuit, the suit should have been brought (if it could be) in the name of all the associates. If it could not be thus brought, beyond question, the association must, in determining all questions as to parties, be conclusively held to be one indivisible entity, existent solely where the entity was created.

Bowen and ROGERS, for plaintiff.

By the court, LAMONT, J. Two questions are made in this case. The plaintiff claims that this action is not removable from the state court into the circuit court of the United States under the act of congress of 1789, or the act of 1867. The defendant, on the contrary insists that the cause is removable, and that the order of the special term of this court, staying the plaintiff's proceedings and sending the case to the said circuit court, is not an appealable order.

It is not disputed that all the formalities necessary to the removal have been complied with by the defendant, if the case is one that falls within the provisions of either act of congress referred to. The defendant is a citizen the state of Illinois.

If the plaintiff is a citizen of the state of New York, or if the stockholders composing the American Merchants' Union Express Company are to be regarded as the real plaintiffs, and they are either in fact or by construction of law citizens of the state of New York, then the order for the removal of the cause was properly made.

William G. Fargo is himself a citizen of the state of New York. If the suit be his, the action is removable.

Vol. XXXVII.

Fargo agt. McVicker.

If the company, or the shareholders who compose it, be the real plaintifts, by the authorized and legal style and title assumed in the complaint, then the question arises, whether those individuals represented by such title in this action by virtue of the statutes of this state, are for the purposes of the jurisdiction of the federal courts to be treated as citizens of the state of New York. This question arises under the constitution and the laws of the United States, and for its true and final determination we look to the authoritative arbiter of all such questions, the supreme court of the United States. That court holds that a corporation is not itself a citizen, but that for all purposes of the jurisdiction of the federal courts, the stoek holders who compose the corporate body by and under the name given them by the statutes of a state are to be treated as citizens of that state, and that they are estopped from denying that they are citizens of the state whose laws alone, empowered them to appear in the courts of justice by the name of their legal christening under the state laws. Neither in the constitution of the United States nor in the acts of congress referred to, is the word corporation or any other word of similar import, employed in connection with the subject under consideration. The term used, is citizen.

Controversies between citizens of different states (U. S. Const., art. 3, \ 2.)

If a suit be commenced in any state court, by a citizen of the state in which the suit is brought againt a citizen of another state, &c. (Act of 1789; 1 Stat. at L. 79; Act of 1867; 14 Stat. at L. 559.)

The same reason that applies to a corporate body applies with equal force to an associate body; and the reason is, that the persons con posing each, though multitudinous in number, and scattered by habitation over many states, are aggregated by the state laws, under which they appear by a fictitious name or designation. They are legalized for litigious purposes into one artificial body, by which they

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