rum of the directors at the meeting which directed it to be executed, as well as for want of a previous petition in writing by a majority of the stockholders, pursuant to a statute of Indiana. Pleas to the jurisdiction, asserting that the plaintiff was a corporation and a citizen of Kentucky, as well as demurrers to the bill for want of equity, were overruled by the court. 69 Fed. Rep. 431, 432, 57 Fed. Rep. 42. | Chicago Railway Company, a corporation or- The case was afterwards heard upon pleadings and proofs, and, so far as is mate rial to be stated, appeared to be as follows: The New Albany Company, by articles of incorporation, filed with the secretary of state of Indiana in January, 1873, reciting its purchase at a judicial sale at New Albany of the railroad and franchise, and all the property, real and personal, of another railroad company whose line of railroad ran from New Albany to Michigan City in the state of Indiana, and expressed to be made "for the purpose of carrying out the design of the said purchase, and forming a corporation of Indiana," became a corporation, under the statute of Indiana of March 3, 1865, which contained these provisions: "The said corporation shall have capacity to hold, enjoy, and exercise, within other states, the aforesaid faculties, powers, rights, franchises, and immunities, and such others [554]as may be conferred upon it by any law of this state, or of any other state in which any portion of its railroad may be situate, or in which it may transact any part of its business; and to hold meetings of stockholders and of its board of directors, and to do all corporate acts and things, without this state, as validly and to the same extent as it may do the same within the state, on the line of such road." Indiana Stat. 1865, chap. 20, § 5, p. 68; Rev. Stat. § 3949. "Any railroad company incorporated under the provisions of this act shall have the power and authority to acquire, by purchase or contract, the road, roadbed, real and personal property, rights and franchises, of any other railroad corporation or corporations which may cross or intersect the line of such railroad company, or any part of the same or the use and enjoyment thereof, in whole or in part; and may also purchase or contract for the use and enjoyment, in whole or in part, of any railroad or railroads lying within adjoining states; and may assume such of the debts and liabilities of such corporations as may be deemed proper." "Any railroad company incorporated under the provisions of this act shall also have power to consolidate with other railroad corporations in the continuous line, either within or without this state, upon such terms as may be agreed upon by the corporations owning the same." Indiana Stat. 1865, chap. 20, § 7, p. 68; Rev. Stat. § 3951. On April 8, 1880, the legislature of Kentucky passed a statute, entitled "An Act to Incorporate the New Albany & Chicago Railway Company," which took effect upon its passage, and the first two sections of which were as follows: "Sec. 1. The Louisville, New Albany, & The third section of that statute directed how proceedings for the condemnation of such real estate should be conducted in the courts of the state of Kentucky. Kentucky Stat. sess. 1879, chap. 858, p. 233. On May 5, 1881, the New Albany Company (describing itself as "a corporation existing under the laws of the state of Indiana," and as owning and operating a line of railroad from New Albany to Michigan City in the same state), and the Chicago & Indianapolis Air Line Railway Company (describing itself as "a consolidated corporation organized and existing under the laws of the states of Indiana and Illinois," and as having in proc ess of construction a line of railway extending from Indianapolis in Indiana to a connection with a railroad at or near Glenwood in Illinois so as to secure a connection with Chicago in that state), consolidated their stock and property, under the laws of Indiana and of Illinois, "so as to create and form a consolidated corporation, to be called and known as the Louisville, New Albany, & Chicago Railway Company," by articles of consolidation, the third of which provided, in accordance with the statutes of Indiana, that "the said consolidated corporation here by created shall be vested with all the rights, privileges, immunities, and franchises which usually pertain to railroad corporations under the laws of the respective states of Illinois and Indiana, wherein the lines of its railroad are situate, and shall also be vested with all and singular the rights, powers, privileges, immunities, capacities, and franchises which before the execution of these[556] articles were lawfully possessed or exercised by either of the parties hereto;" and the ninth of which provided that "the principal place of business and the general office of the consolidated corporation shall be established in the city of Louisville, Kentucky." On April 7, 1882, the legislature of Kentucky, by a statute entitled "An Act to the "Sec. 1. The board of directors of any railway company organized under and pursuant to the laws of the state of Indiana, whose line of railway extends across state in either direction, may, upon the petition of the holders of a majority of the stock of such railway company, direct the execution by such railway company of an indorsement guaranteeing the payment of the principal and interest of the bonds of any railway company organized under or pursuant to the laws of any adjoining state, the construction of whose line or lines of railway would be beneficial to the business or traffic of the railway so indorsing or guaranteeing such bonds. Amend an Act Entitled 'An Act to Incorpo- | Laws of Any Adjoining State," the material rate the Louisville, New Albany, & Chicago provisions of which were as follows: Railway,' approved April 8, 1880," enacted that "the Louisville, New Albany, & Chicago Railway Company is hereby authorized and empowered to indorse or guarantee the principal and interest of the bonds of any railway company now constructed, or to be hereafter constructed, within the limits of the state of Kentucky; and may consolidate its rights, franchises, and privileges with any railway company authorized to construct a railroad from the city of Louisville to any point on the Virginia line; such indorsement, guaranty, or consolidation to be made upon such terms and conditions as may be agreed upon between said companies; or it may lease and operate any railway chartered under the laws of the state of Kentucky: Provided, it shall not lease or consolidate with any two lines of railway parallel to each other." Kentucky Stat. sess. 1881, chap. 870, p. 251. "Sec. 2. The petition of the stockholders, specified in the preceding section of this act, shall state the facts relied on to show the benefits accruing to the company indorsing or guaranteeing the bonds above mentioned. The New Albany Company was not shown *"Sec. 3. No railway company shall, under[558] to have formally accepted the statutes of the provisions of this act, indorse or guarKentucky of 1880 and 1882, or to have ever antee the bonds of any such railway comorganized as a corporation under those stat-pany or companies, as is above mentioned, utes. But the defendants, as evidence that it had accepted a charter of incorporation from the state of Kentucky, relied on the following documents: 1st. Two deeds to it of lands in Jefferson county, made and recorded in 1881, in which it was described as "of the city of Louisville, Kentucky." 2d. Two mortgages executed by it to trustees in 1884 and 1886, including its railway in Indiana and in Jefferson county, in each of which it was described as "a corporation duly created and existing under the laws of Indiana and Kentucky." 3d. A lease to it from the Louisville South1557]ern Railway Company, in 1888 (more fully stated below), in which it was similarly described. to an amount exceeding one half of the par value of the stock of the railway company so indorsing or guaranteeing as authorized under this act." Indiana Stat. 1883, chap. 127, p. 182; Rev. Stat. §§ 3951a-3951c. On December 10, 1888, the New Albany Company took a lease, in which it was described as "a corporation organized and existing under the laws of the state of Indiana and of the state of Kentucky," from the Louisville Southern Railroad Company, a corporation of Kentucky, of the railroad of the latter, running from Louisville to Burgin through sundry other places in Kentucky, and connecting at Versailles in that state with a railroad then being constructed by the Beattyville Company to Beattyville, and which would, if completed, extend the connections of the New Albany Company a considerable distance towards the Virginia line. The Beattyville Company had, on October 11, 1888, made a contract with the Ohio Val 4th. A petition (the date of which did not appear in the transcript) that an action brought against it in a court of the state of Indiana might be removed into the cir-ley Improvement and Contract Company, by cuit court of the United States, upon the ground that it was a corporation of Kentucky. 5th. Proceedings in 1887, in a court of Jefferson county, for the condemnation of lands in that county upon a petition in which "the Louisville, New Albany, & Chicago Railway Company states that it is a corporation, and that it is duly empowered by its charter by an act of the general assembly of the commonwealth of Kentucky to purchase, lease, or condemn in said state such real estate as may be necessary for railway, switches, side tracks, depots, yards, and other railway purposes, and to construct and operate a railroad in said state." On March 8, 1883, the legislature of Indiana passed a statute, entitled "An Act to Authorize Railroad Companies Organized under the Laws of the State of Indiana to Indorse and Guarantee the Bonds of Any Railroad Company Organized under the which that company agreed to construct and equip its line of railroad; and, in consideration thereof, the Beattyville Company agreed to execute and issue to the construction company its first-mortgage bonds for $25,000 a mile, dated July 1, 1889, and pay. able in thirty years, with interest at the annual rate of 6 per cent; and to transfer to that company the subscriptions received from municipalities, and to issue to that company all its capital stock, except what would have to be issued on account of such subscriptions. On October 8, 1889, the board of directors of the New Albany Company, as appeared by its records, passed a resolution ordering the president and secretary to execute, under the seal of the company, a contract with the construction company, which contract described that company as a corporation of the state of Kentucky, and the New Albany Company as "a corporation organized and existing un der the laws of the states of Indiana and Kentucky," and contained these stipulations: "Fourth. The said New Albany Company Jagrees to and *with the said construction company that it will, from time to time, as the said first-mortgage bonds are earned by and delivered to the said construction company pursuant to the terms of their said construction contract, guarantee the payment by the said Beattyville Company of the principal and interest of the said bonds in manner and form following, that is to say, by indorsing upon each of said bonds a contract of guaranty as follows: "For value received, the Louisville, New Albany, & Chicago Railway Company hereby guarantees to the holder of the within bond the payment, by the obligor thereon, of the principal and interest thereof in accordance with the tenor thereof. ""In witness whereof the said railway company has caused its corporate name to be signed hereto by its president and its seal to be attached by its secretary."" "Sixth. In consideration of the premises, the said construction company agrees to transfer and deliver to the said New Albany Company three fourths of the entire capital stock of the said Beattyville Company, the said delivery to proceed pari passu with the guaranteeing of the said bonds by the said New Albany Company: $3,000 at par of the said stock being delivered for each $4,000 of bonds guaranteed." This contract was dated October 9, 1889; was signed in the name of each company by its president and secretary and under its corporate seal; and a copy of it was spread upon the records of the board of directors of the New Albany Company. The charges of fraud against the directors who took part in that meeting were disproved; and the evidence failed to establish that the meeting was not in every respect a lawful one. company, and the guaranty placed on the bonds of the Beattyville Company, as having been made without legal authority or the approval of the stockholders, and to empower the board of directors to take all proceedings necessary or proper to cancel such contract and guaranty, and to relieve the company from any obligation or liability by reason thereof. Many of the bonds so guaranteed and put on the market, including one hundred and twenty-five bonds purchased by the Louisville Trust Company, and ten bonds purchased by the Louisville Banking Company, were taken from the construction company by the purchasers in good faith, and without notice or knowledge that there had been no petition of a majority of the stockholders for the execution of the guaranty; and fortyfive of the bonds were purchased from the construction company by the Louisville Banking Company after the meeting in March, 1890, and with notice that the majority of the stockholders had not petitioned for, but had disapproved, the guaranty. The Beattyville Company and the construction company went on with the work of constructing the Beattyville railroad until the summer of 1890, when they both became insolvent, and their property passed into the hands of receivers. The plaintiff, in its bill, tendered back the stock which it had received, and the stock was deposited in the office of the clerk of the court. The circuit court entered a decree for the plaintiff against all the defendants. 69[561] Fed. Rep. 431. The Louisville Trust Corapany and the Louisville Banking Company and other bondholders appealed to the circuit court of appeals, which reversed the decree of the circuit court, and ordered the bill to be dismissed as to the Louisville Trust Company and the Louisville Banking Company, except as to the forty-five bonds held by the latter company; and, as to these bonds, ordered an injunction against suits on the guaranty against the plaintiff as a corporation of Indiana and Illinois, and that there be stamped on each of these forty-five bonds, under its guaranty, these words: "This guaranty is binding only on the Louisville, New Albany, & Chicago Railway Com But no petition of a majority of the stockholders for the execution of the guaranty was presented, as required by the statute of Indiana of 1883, above cited. Nor was there any evidence that the stockholders ever authorized or ratified the contract between the New Albany Company and the construction company, or the guaranty executed in ac-pany, a corporation of Kentucky. It is not cordance therewith. Pursuant to that contract, and before 60]March 12, 1890, the stock of the Beattyville Company was delivered to the New Albany Company; a guaranty, in the terms specified in the fourth article of that contract, and bearing the signature of the New Albany Company by its president and secretary and its corporate seal, was placed on 1185 bonds for $1,000 each of the Beattyville Company; and the bonds thus guaranteed were put on the market by the construction company. On March 12, 1890, the annual meeting of the stockholders of the New Albany Company was held, a new board of directors was elected, and the meeting was adjourned to March 22, 1890, when it was voted by a ma-1 jority of the stockholders to reject and disapprove the contract with the construction binding on the Louisville, New Albany, & Chicago Railway Company, a corporation of Indiana and Illinois.' 43 U. S. App. 550. The plaintiff applied for and obtained these writs of certiorari. 164 U. S. 707, mem. Messrs. E. C. Field, G. W. Kretzinger, and James S. Pirtle for petitioner: The appellee. created by the consolidation of Illinois and Indiana companies, could not, by general contract, bind itself, if such contract was not authorized by the state of one of its constituents. Shields v. Ohio, 95 U. S. 319, 24 L. ed. 357; Atlantic & G. R. Co. v. Georgia, 98 U. S. 359, 25 L. ed. 185; Clearwater v. Meredith, Wall. 25, 17 L. ed. 604. The general and implied corporate powers of appellee, as a consolidated corporation, were limited by the articles of consolidation, and the laws of its creation, to the ownership and operation of railroads wholly within the states of Indiana and Illinois. Killian v. Ashley, 24 Ark. 511, 91 Am. Dec. 519; Cooper v. Dedrick, 22 Barb. 516; Partridge v. Davis, 20 Vt. 499; Webster v. Cobb, 17 Ill. 466; Jackson v. Foote, 12 Fed. Rep. 37; Studabaker v. Cody, 54 Ind. 586; Davis v. Wells, Fargo, & Co. 104 U. S. 169, 26 L. ed. 690; Toppan v. Cleveland C. & C. R. Co. 1 Flipp. 74. The power of the board of directors to make the guaranty was so exercised as to bind the appellee in favor of bona fide Thomas v. West Jersey R. Co. 101 U. S. 82, 25 L. ed. 952; Oregon R. & Nav. Co. v. Oregonian R. Co. 130 U. S. 1, 32 L. ed. 837; Pearce v. Madison & I. R. Co. 21 How. 441, 16 L. ed. 184; Ernest v. Nicholls, 6 H. L. Cas. 418; Balfour v. Ernest, 5 C. B. N. S. 600; Ridley v. Plymouth 8. & D. Grinding & Baking Co. 2 Exch. 711; Bedford R. Co. v. Bow-holders. ser, 48 Pa. 29; People, Peabody, v. Chicago Gas Trust Co. 130 Ill. 268, 8 L. R. A. 497; Davis v. Old Colony R. Co. 131 Mass. 258, 41 Am. Rep. 221. The appellee had no general power to lend its credit or guarantee the debts of any other enterprise or company. Colman v. Eastern Counties R. Co. 10 Beav. 1; East Anglian R. Co. v. Eastern Counties R. Co. 11 C. B. 775; Pearce v. Madi- | son & I. R. Co. 21 How. 443, 16 L. ed. 184. It requires special legislative power to authorize the purchase of the stock or to guarantee the debt of any other company or enterprise. People, Peabody, v. Chicago Gas Trust Co. 130 Ill. 268, 8 L. R. A. 497; Sumner v. Marcy, 3 Woodb. & M. 105; Mechanics & Workingmen's Mut. Sav. Bank & Bldg. Asso. v. Meriden Agency Co. 24 Conn. 159; Starin v. Genoa, 23 N. Y. 439. Those dealing with a special agent must take notice that his authority, as such special agent, is not general but limited, and no presumption will be substituted for actually absent special authority. Pratt v. Short, 79 N. Y. 437, 35 Am. Rep. 531; Valley R. Co. v. Lake Erie Iron Co. 46 Ohio St. 44; Hackensack Water Co. v. DeKay, 36 N. J. Eq. 548; Martin v. Great Falls Mfg. Co. 9 N. H. 51; LeMoine v. Bank of North America, 3 Dill. 44; Spence v. Mobile & M. R. Co. 79 Ala. 585; Ernest v. Nicholls, 6 H. L. Cas. 418; Chambers v. Manchester & M. R. Co. 5 Best & S. 588. Messrs. Swagar Sherley, St. John Boyle, and Barnett, Miller, & Barnett for respondents: The directors of the "Monon," under the powers granted by the Kentucky act of 1882, had the right to make the guaranty. Hoyt v. Thompson, 19 N. Y. 216; Louisville, E. & St. L. R. Co. v. McVay, 98 Ind. 393, 49 Am. Rep. 770; Thompson v. Nachez Water & Sewer Co. 68 Miss. 423; Hodder v. Kentucky & G. E. R. Co. 7 Fed. Rep. 796; Nashua & L. R. Co. v. Boston & L. R. Co. 27 Fed. Rep. 825, 136 U. S. 356, 34 L. ed. 363; Wood v. Whelen, 93 Ill. 153; Hendee v. Pinkerton, 14 Allen, 387; Beveridge v. New York Elev. R. Co. 112 N. Y. 1, 2 L. R. A. 648; Flagg v. Manhattan R. Co. 10 Fed. Rep. 431; McCullough v. Moss, 5 Denio, 575; Moses v. Tompkins, 84 Ala. 613; Dana v. Bank of United States, 5 Watts & S. 223; Hutchinson v. Green, 91 Mo. 367; Gashwiler v. Willis, 33 Cal. 11, 91 Am. Dec. 607; Conro v. Port Henry Iron Co. 12 Barb. 27; Clark v. Barnard, 108 U. S. 436, 27 L. ed. 780. The guaranty indorsed on the Beattyville bonds is negotiable. Battles v. Laudenslager, 84 Pa. 446; Stoney v. American L. Ins. Co. 11 Paige, 635; Farmers' Nat. Bank v. Sutton Mfg. Co. 6 U. S. App. 312, 52 Fed. Rep. 191, 3 C. C. A. 1, 17 L. R. A. 595; Farmers' & M. Bank v. Butchers' & D. Bank, 16 N. Y. 125; Bissell v. Michigan S. & N. S. R. Cos. 22 N. Y. 289; Mechanics' Bkg. Asso. v. New York & 8. White Lead Co. 35 N. Y. 505; Wright v. Pipe Line Co. 101 Pa. 204, 47 Am. Rep. 701; Hackensack Water Co. v. DeKay, 36 N. J. Eq. 548; Credit Co. v. Howe Mach. Co. 54 Conn. 357; Gelpcke v. Dubuque, 1 Wall. 203, 17 L. ed. 524; Genesee County Sav. Bank v. Michigan Barge Co. 52 Mich. 438; Bird v. Daggett, 97 Mass. 494. The guaranty is valid as the act of the appellee's agent. Humboldt Twp. v. Long, 92 U. S. 642, 23 L. ed. 752; Eastern Counties R. Co. v. Hawkes, 5 H. L. Cas. 331; Kinyon v. Wohlford, 17 Minn. 239, 10 Am. Rep. 165; Clarke v. Johnson, 54 Ill. 296; Burson v. Huntington, 21 Mich. 415, 4 Am. Rep. 497; McDougald v. Lane, 18 Ga. 444; Norwich v. Norfolk R. Co. 4 El. & Bl. 397; Story on Agency, Secs. 452, 562; Fitzherbert v. Mather, 1 T. R. 11; Locke v. Stearns, 1 Met. 563, 35 Am. Dec. 382; Hackett v. Ottawa, 99 U. S. 608, 25 L. ed. 363; New York & N. H. R. Co. v. Schuyler, 34 N. Y. 31; North River Bank v. Aymar, 3 Hill, 262. *Mr. Justice Gray, after stating the case[561] as above, delivered the opinion of the court: The plaintiff, the Louisville, New Albany, & Chicago Railway Company, undoubtedly became a corporation of the state of Indiana in 1873 by its incorporation according to the general statute of 1865 of that state. Whether it afterwards became a corporation of the state of Kentucky also was strongly contested at the bar, and depends upon the legal effect of the statute of Kentucky of 1880. That statute (being the first statute of Kentucky affecting this corporation) is described indeed in its title, as well as in the title of the statute of 1882 amending it, as "An Act to Incorporate" this company, although in the title of the first statute the[562] word "Louisville" in its name is omitted. By the first words of the enacting part of the statute of 1880, it is "the Louisville, New Albany, & Chicago Railway Company, a corporation organized under the laws of the state of Indiana," and not any other corporation, or any association of natural persons, that is "hereby constituted a corporation," with the usual powers of corporations, and with "authority to operate a railroad." And is the corporation so described that, by | state by which it was originally created. It the other provisions of that statute, may could neither have brought suit as a corpurchase, lease, or condemn real estate re- poration of both states against a corporaquired for railroad purposes in the county of tion or other citizen of either state, nor Jefferson, and may connect with any other could it have sued or been sued as a corporarailroad in that county, or build, lease, or tion of Kentucky, in any court of the United operate any such connecting line, "and may States. Ohio & Mississippi Railroad Co. v. bond the same, and secure the payment of Wheeler, 1 Black, 286 [17:130]; St. Louis any such bonds by a mortgage of its prop- & San Francisco Railway Co. v. James, 161 erty, rights, and franchises;" and, by the U. S. 545 [40:802]; St. Joseph & G. I. Railamendatory statute of 1882, may guarantee road Co. v. Steele, 167 U. S. 659,663 [42:315, the bonds of, or consolidate with, other cor- 317]; Barrow Steamship Co. v. Kane, 170 porations authorized to construct railroads U. S. 100, 106 [42: 964, 967]. in Kentucky. In St. Louis & San Francisco Railway Co. This court has often recognized that av. James, the company was organized and corporation of one state may be made a cor- incorporated under the laws of the state of poration of another state by the legislature Missouri in 1873, and owned a railroad exof that state, in regard to property and acts tending from Monett in that state to the within its territorial jurisdiction. Ohio & boundary line between it and the state of Mississippi Railroad Company v. Wheeler, 1 Arkansas. The Constitution of the state of Black, 286, 297 [17: 130, 133]; Baltimore & Arkansas provided that foreign corporations 0. Railroad Co. v. Harris, 12 Wall. 65, 82 might be authorized to do business in this [20: 354, 358]; Chicago & N. W. Railway Co. state under such limitations and restrictions v. Whitton, 13 Wall. 270, 283 [20: 571, 576]; as might be prescribed by law, but should Indianapolis & St. L. Railroad Co. v. Vance, not have power to appropriate or condemn 96 U. S. 450, 457 [24: 752, 756]; Memphis & private property. The legislature of ArCharleston Railroad Co. v. Alabama, 107 U. kansas, by a statute of 1881, provided that S. 581 [27: 518]; Clark v. Barnard, 108 U. any railroad company incorporated by or S. 436, 451, 452 [27:780, 786]; Stone v. under the laws of any other state, and havFarmers' Loan & Trust Co. 116 U. S. 307, 334 ing a line of railroad to the boundary of Ar-[564] [29: 636, 645]; Graham v. Boston, Hartford, & Erie Railroad Co. 118 U. S. 161, 169 [30: kansas, might, for the purpose of continu196, 2011; Martin v. Baltimore & Ohio Rail-ing its line of railroad into this state, purroad Co. 151 U. S. 673, 677 [38: 311, 313]. But this court has repeatedly said that, in order to make a corporation, already in existence under the laws of one state, a corporation of another state, "the language used must imply creation or adoption in such form as to confer the power usually exercised over corporations by the state, or by the legislature, and such allegiance as a state corporation owes to its creator. The mere grant of privileges or powers to it as an existing corporation, without more, does not do this." Pennsylvania Railroad Co. v. St. Louis, Al33]ton, & Terre Haute *Railroad Co. 118 U. S. 290, 296 [30: 83, 88]; Goodlett v. Louisville & Nashville Railroad Co. 122 U. S. 391, 405, 408 [30: 1230, 1232, 1233]; St. Louis & San Francisco Railway Co. v. James, 161 U. S. 545, 561 [40: 802, 808]. The acts done by the Louisville, New Albany, & Chicago Railway Company, under the statutes of Kentucky, while affording ample evidence that it had accepted the grants thereby made, can hardly affect the question whether the terms of those statutes were sufficient to make the company a corporation of Kentucky. But a decision of the question whether the plaintiff was or was not a corporation of Kentucky does not appear to this court to be required for the disposition of this case, either as to the jurisdiction, or as to the merits. As to the jurisdiction, it being clear that the plaintiff was first created a corporation of the state of Indiana, even if it was afterwards created a corporation of the state of Kentucky also, it was and remained, for the purposes of the jurisdiction of the courts of the United States, a citizen of Indiana, the chase the property, rights, and franchises office in the state. Pursuant to that stat- In an action brought by a citizen of Mis souri against that company in the circuit court of the United States for the western |
