Fargo agt. McVicker.

are endowed with the new faculty of suing and being sued by the name and style conferred upon them by a state law.

In the present case, the shareholders consisting of several thousand persons, citizens of and residents in various states, including both the states of New York and of Illinois, are embodied, for the purpose of suing and being sued into a new, legal personality by the name used in this action-and this new faculty of acting and appearing in the courts, is given by the laws of the state of New York. (Chap. 258; Statutes of 1849.)

As to being sued or bringing suits by the fictitious name conferred by the state statute they stand in the same predicament as if they were in all respects a perfect corporation created by such state law. It is the state law itself that gives this multitude of shareholders legal capacity to go into court, whether as plaintiffs or defendants, by a name furnished for that purpose under the state law. In this respect they are the same as a corporate body-whether they be a corporate body, an associate body, a joint stock company, or association, by whatever designation they may be known. The reason why they are treated for the purposes of federal jurisdiction, as citizens of the state whose laws they have invoked to enable them to be and appear by one name and style in tribunals of justice, applies aptly to every aggregation of persons invested by state law, with this faculty of suing and being sued by the new name, which under such statutory provisions, represents the entire body of shareholders. In this particular as party litigant a corporate body and an associate body are identical. The reasoning that applies to one, applies to the other, and that reasoning will be seen at large, in Marshal agt. The Baltimore and Ohio R. R. Co., (16 How. U. S. Rep., 325 to 329,) and see Covington, Draw Br. Co. agt. Sheperd et. al., (20 How. U. S. Rep., 233.)

In the case first cited, the grounds for the construction of the federal constitution and laws, are given with great

Fargo agt. McVicker.

force. (16 How., U. S. R., 326.) Mr. Justice GRIER delivering the opinion of the court, says:

"Now if this be a right, or privilege guaranteed by the constitution to citizens of one state in their controversies with citizens of another, it is plain that it cannot be taken away from the plaintiff by any legislation of the state in which the defendant resides. If A. B. and C. with other dormant or secret partners be empowered to act by their representatives to sue or to be sued in a collective or corporate name, their enjoyment of these privileges granted by state authority, cannot nullify this important right conferred on those who contract with them."

Again, p. 327. "The necessities and conveniences of trade and business, require that such numerous associates and stockholders, should act by representation, and have the faculty of contracting, suing and being sued in a fictitious or collective name. But these important faculties conferred on them by state legislation for their own convenience, cannot be wielded to deprive others of acknowledged rights. It is not reasonable that those who deal with such persons, should be deprived of a valuable privilege by a syllogism, or rather sophism, which deals subtly with words and names, without regard to the things or persons they are used to represent. Nor is it reasonable that representatives of numerous, unknown, and ever changing associates, should be permitted to allege the different citizenship of one or more of these stockholders, in order to defeat the plaintiffs privilege."

It will be seen in the extracts given, and more fully in the opinion at large, that the whole force of the reasoning, applies to any aggregate body of shareholders authorized by state law to sue and be sued by their collective name, or the name given them for litigious purposes by the state law. "In courts of law," says this learned judge "an act of incorporation and a corporate name are necessary to enable the representatives of a numerous association to sue

Fargo agt, McVicker.

and be sued." And it is for this reason, that reference is so often made to corporations in this and other cases bearing upon the question.

But by the act of 1849, the representatives of a numerous association, are enabled to sue and be sued without the act of incorporation, or the corporate name-but by its equivalent, a legal association and a legitimate statutory name. By this name, the whole collective body of shareholders are represented in the courts. The name represents them, as the corporate name represents all the corporators or stockholders, the name given in each case by the state law for that purpose.

I am of opinion that the present case should be governed by the same principles of law which determine the question of citizenship, in case of corporations authorized by the laws of a state-and that the order appealed from was properly made.

Who is to determine whether this action is removable into the circuit court of the United States? The court of appeals has held that the question of jurisdiction must be decided by the circuit court itself, (Illius agt. The N. Y, and N. H. R. R. Co., 3 Kernan, 579,) and have pointed out the proper practice to be pursued. If the circuit court refuses to entertain jurisdiction, then the order complained of will be vacated, and the case will proceed in the supreme.

court.

This course of proceeding avoids all conflict between the state and federal courts, leaves the decision where it constitutionally belongs, and conforms with the views of the court of appeals in a similar case before them where an appeal was dismissed.

It is a doubtful question whether an appeal lies from the special to the general term when the former accepts the surety tendered, and the other formal requisites pointed out by the acts of congress, are complied with by the applicant for the removal, and where the formalities are fully com

Fargo agt. McVicker.

plied with and the only question is, whether the U. S. court can entertain jurisdiction of the cause. I think the latter court should be applied to for the decision of that question. If that court entertains the suit, state courts cannot overrule the decision-but if the circuit court declines the jurisdiction, then a motion can be made to vacate the order instead of appealing from it.

My brethren are of opinion the order appealed from, should be affirmed, and it is affirmed, with $10 costs.

People agt. Board of Town Auditors

COURT OF APPEALS.

THE PEOPLE ex rel. INMAN S. LOWELL agt. THE BOARD OF TOWN AUDITORS of the town of WESTFORD.

On the 24th of March, 1864, at a town meeting, held in the town of Westford, called "for the purpose of paying bounties to volunteers in the military or naval service of the United States, during the existence of the war, now carried on, and for the purpose of paying the incidental expenses of such volunteering, and of raising such money," a resolution was passed "That there be paid the sum of $300 to each man drafted and not exempted, and the same be raised by a tax upon the taxable property of the town.

The resolution was amended so as to include those that were drafted last year and paid $300."

On the 8th of June, 1864, the relator was drafted for three years, as one of the quota of the town, under the call by the president, issued September 17, 1863. On the 23d of June, he paid $300, commutation, and was discharged "from further liability under that draft." In April, 1865, a local act, set out in the opinion, was passed, legalizing resolutions by town meetings in the county of Otsego, relating to the payment of bounties to volunteers, substitutes and drafted men. In November, 1867, the relator presented his claim for $300 bounty, under the resolution, to the defendants who refused to audit it:

Held: 1. That the payment of the $300 was a discharge of the duty imposed upon the relator by the draft and not an exemption.

2. That the resolution embraced those thereafter drafted under the impending call. 3. That the local act legalized the resolution.

. That the term "bounty" covered premiums offered to induce men to enlist and also gratuities, benevolences and generosities.

That under the resolution the relator was entitled to $300, and defendants should be required by mandamus to audit his claim therefor.

June Term, 1869.

THIS is an appeal from an order made at special term, granting a peremptory mandamus, requiring the defendants forthwith to assemble and audit and allow the relators claim of $300 against the town.

The general term of the sixth district, affirmed the order with the modification that the claim should be audited at the next annual meeting of the board (53 Barb., 555.)

This claim arose as follows: On the 24th of March, 1864,