Argument for Plaintiff in Error.

of his duties as section foreman on a railroad between Nashville, Tennessee, and Decatur, Alabama, which at the time, was operated by the Louisville and Nashville Railroad Company. The declaration alleged that the defendant was a corporation created by the legislature of Tennessee, and that the injuries complained of were caused by the negligence and carelessness of that company, its servants and agents. In due time, the defendant filed its petition, accompanied by bond in proper form, for the removal of the action into the Circuit Court of the United States for the Middle District of Tennessee alleging that the plaintiff was a citizen of Tennessee, and that the defendant was a citizen of Kentucky, having its principal place of business in that commonwealth. The state court made an order recognizing the right of removal, and declaring that no further proceedings be had therein in said suit.

In the Circuit Court, a motion to remand the cause to the state court the ground of such motion being that the defendant was a corporation of Tennessee, and therefore a citizen of the same state with the plaintiff. was denied. To that action of the court an exception was taken.

Upon the trial of the case the court gave a peremptory instruction to find for the defendant. It also refused to give the instructions asked in behalf of the plaintiff. The plaintiff sued out this writ of error.

Mr. F. E. Williams, at the argument of the case, submitted for plaintiff in error on his brief. Mr. Bate was with him on the brief.

We concede for the plaintiff in error that the defendant company was first chartered by the state of Kentucky. But we insist that it was also chartered by the state of Tennessee; and that its status is the same in Tennessee as if it had been originally created by that state, because that state adopted it. Such would be the law if these were the facts in the case. Müller v. Dows, 94 U. S. 444; Uphoff v. Chicago & St. Louis Railroad, 5 Fed. Rep. 545; Railway Co. v. Whitton, 13 Wall. 270.

Argument for Plaintiff in Error.

We furthermore concede, if the legislation of Tennessee had no greater effect than merely to license and permit the Louisville and Nashville Railroad Company, as a foreign corporation, to have "a right of way to construct its road" in Tennessee, that such license would not convert the company into a corporation of the latter state. But we submit that Tennessee has done more than this has not only granted a right of way to construct a road, but has conferred power to construct it, and also charter privileges in such terms as to adopt this corporation and make it its own. The question is always a question of intent. Railroad Co. v. Harris, 12 Wall. 65, 83; and all the statutes which relate to the question must be read by themselves. Railroad Co. v. Schutte, 103 U. S. 118, 140.

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The first act passed by Tennessee was enacted December 4, 1851, and is entitled “ An act to incorporate the Louisville and Nashville Railroad Company." January 10, 1852, another act was passed, entitled "An act to amend the charter of the Louisville and Nashville Railroad Company, passed the 4th of December, 1851." December 15, 1855, still another act was passed, entitled: "An act to amend an act, entitled 'An act to charter the Louisville and Nashville Railroad Company, and the several acts amending said act passed by the legislatures of Kentucky and Tennessee." March 20, 1858, a fourth act was passed, entitled "An act to amend the charter, and several acts amendatory thereto, passed by the legislature of Tennessee and Kentucky incorporating a company to construct a railroad from the city of Louisville to the city of Nashville." These titles of acts unmistakably indicate that the legislatures of Tennessee thought they were creating a corporation in part, and that the Louisville and Nashville Railroad Company owed its existence to Tennessee as well as to Kentucky. In this opinion the legislature of Kentucky also shared. On the 21st day of February, 1868, the legislature of that state passed an act to amend the charter of this company. Among other things this act so amended the charter as to authorize the company to consolidate with other roads. It authorized the consolidating companies to adopt such name as they might

Argument for Plaintiff in Error.

choose, and expressly provided that in such name it should have all the powers and privileges conferred upon said company "by the laws of Kentucky and Tennessee."

It being apparent now what the legislature of Tennessee intended to do, and also that the legislatures of both states believed that Tennessee had succeeded therein, the question is whether in point of fact such intent had been carried into effect. We submit that it had.

The Louisville and Nashville Railroad Company was chartered by the state of Kentucky March 5, 1850. This charter act was amended by that state March 20, 1851. An examination of the charter contained in these acts will disclose that no power is granted or conferred to build a foot of road or to operate a road in Tennessee, even upon the condition of procuring that state's consent. It empowers the company to build a road from Louisville in the direction of Nashville, but only to the Tennessee line. So much of the act as confers the powers upon the company is contained in the fourteenth section of the act of 1850, and is as follows: "SECTION 14. That the President and Directors of said company are hereby vested with all powers and rights necessary to the construction of a railroad from the city of Louisville to the Tennessee line, in the direction of Nashville." Where, then, did the company get the power to construct a road in Tennessee, except from Tennessee? The first section of the Tennessee act of December 4, 1851, standing alone, is susceptible of the construction that it only grants a mere right of way, but the act as a whole does more. It abrogates and declares void (in the sixth section) two sections of the charter granted by Kentucky, and the seventh section adds four sections to the charter granted by the state of Kentucky, with the declaration. that these four added sections "are hereby made a part of the charter of the Louisville and Nashville Railroad Company." December 15, 1855, the legislature of Tennessee passed an act, entitled "An act to amend an act to charter the Louisville and Nashville Railroad Company, and the several acts amending said act passed by the legislatures of Kentucky and Tennessee," which made certain provision, with reference to a lien

Argument for Plaintiff in Error.

in the event "said company shall receive the aid of the state of Tennessee." This act also contained other important amendatory provisions. The first section empowered the company to sell its bonds. The third section provided what disposition should be made of the profits realized on the stock in the company held by the city of Louisville, Ky., and also that the holders of the bonds to be issued might demand and receive stock for their bonds, upon certain named contingencies. Sections 5 and 16 authorized the tax-payers of Sumner and Davidson Counties, in Tennessee, to demand stock for the money paid by them as taxes, used to pay the interest on the bonds issued by those counties to aid in the construction of the road. Section 11 of said act consolidated the Louisville and Nashville Railroad Company and the Edgefield and Kentucky Railroad Company (a Tennessee corporation) for the purpose of building a bridge across the Cumberland River at Nashville, and gave each company $100,000 for that purpose. The twelfth section of the act also conferred upon these two companies above named the power to construct a road not exceeding ten miles in length to be used in common. Section 14 provided for the addition of two directors to the number allowed by the original charter; and § 15 conferred power to make certain agreements with any county through which the road passed. Section 6 conferred upon the company the power to buy negroes to be used for the construction or operation of the road; and then when they should no longer be needed for that purpose, to sell or hire them, either in Kentucky or Tennessee.

The act of Tennessee passed March 20, 1858, after declaring in its title that it is an act to amend the charter granted by the legislatures of Kentucky and Tennessee, provides as follows: "SECTION 1. Be it enacted by the General Assembly of the state of Tennessee, That the several acts of the states of Kentucky and Tennessee, be and are hereby, amended by the additional sections." Section 2 confers power to issue bonds. Section 4 provides for a sinking fund (to meet the bonds) to be set apart by the "President and Directors of said company." Section 5 provides that "the issue of the bonds

Argument for Plaintiff in Error.

herein authorized shall be conclusive evidence of the acceptance of the company of this as an amendment to their charter.” Such are a few of the important powers conferred upon this company by the state of Tennessee. The terms in which these powers are conferred; the fact that all of them are important, and that many of them were essential (to enable the road to get from the state line to Nashville); the pecuniary aid of $10,000 per mile, and $100,000 for a bridge, granted by Tennessee; the concurrent legislative interpretation of these statutes by both states, as being charter statutes conferring organic power upon the company, and not simply granting a mere right of way- make it indubitable that the state of Tennessee has adopted this company and conferred upon it like powers to those granted to corporations of its own creation.

One state can make a corporation of another state, as there organized and conducted, a corporation of its own, quoad any property within its territorial jurisdiction. Graham v. Boston, Hartford & Erie Railroad, 118 U. S. 161, 168; Railroad Co. v. Harris, 12 Wall. 65, 82. And this is allowable, for the reason that a corporation of one state has no existence as a legal entity or person in another state, except under and by virtue of its incorporation by the latter state. Memphis, &c., Railroad Co. v. Alabama, 107 U. S. 581, 585; Müller v. Dows, 94 U. S. 444; Railroad Co. v. Vance, 96 U. S. 450; Stone v. Farmers' Loan and Trust Co., 116 U. S. 307; Uphoff v. Chicago, &c., Railroad, 5 Fed. Rep. 545. When these cases are considered, all together, it is settled, that when it is apparent from the powers conferred, the language used, and the manner in which the powers conferred are to be exercised, that the second state means and intends to create a corporation in whole or in part; or to adopt one already created by another state, and give it a status such as would have been given to the corporation as a "person" of its own creation, then such corporation will be regarded as a corporation of the latter state, with respect to suits brought in such state.

Inasmuch as this corporation is not only indebted to the state of Tennessee for a large share of the corporate powers it