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[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Doing

panies and advertised its goods and sent solicit-, consideration may be brought in the district ing agents within the state. in which the defendant "resides or is found." When applied to a corporation this requirement is the equivalent of saying that it must agents carrying on the business of the corpobe present in the district by its officers and

Business.]

In Error to the District Court of the United States for the Eastern District of Louisi-ration. In this way only can a corporation

ana.

Suit by the People's Tobacco Company, Limited, against the American Tobacco Company. From a judgment quashing an attempted service of process upon defendant, plaintiff brings error. Affirmed.

be said to be "found" within the district. In that manner it may manifest its submission to local jurisdiction and become amenable to local process.

The testimony shows that up to November 30, 1911, the American Tobacco Company Mr. Edwin T. Merrick, of New Orleans, had a factory in New Orleans for the manuLa., for plaintiff in error. facture of tobacco and cigarettes known as Messrs. Junius Parker, of New York City, the W. R. Irby Branch of the American Toand George Denegre, Victor Leovy, and Hen-bacco Company, of which W. R. Irby was ry H. Chaffe, all of New Orleans, La., for manager. Under the law of the State it had defendant in error. filed in the office of the Secretary of State an appointment of W. R. Irby as agent, upMr. Justice DAY delivered the opinion of on whom service of process might be made. the Court.

its W. R. Irby Branch to a company to be formed and known as the Liggett & Myers Tobacco Company. Conveyances were made to carry out this purpose.

On November 16, 1911, the Circuit Court On January 4, 1912, the People's Tobacco of the United States for the Southern DisCompany, Limited, began suit against the trict of New York made a decree dissolving American Tobacco Company in the District the American Tobacco Company. Among Court of the United States for the Eastern other things that decree provided that the District of Louisiana to recover treble dam-American Tobacco Company should convey ages under section 7 of the Sherman Act of 1890 (Act July 2, 1890, c. 617, 26 Stat. 210 [Comp. St. 1916, § 8829]). On January 5, 1912, service of process was made upon W. R. Irby as manager of the company. On The American Tobacco Company by an inJanuary 16, 1912, the company filed excep- strument executed by Mr. Hill, its vice presitions to the service on the ground that it dent, revoked the authority of W. R. Irby was a corporation organized under the laws as its resident agent, and filed the revocation of the State of New Jersey; that it was not of authority in the office of the Secretary of found within the Eastern District of Louisi-State of Louisiana on December 15, 1911. ana or in the State of Louisiana, and was not engaged in business there, nor had it an agent therein; that W. R. Irby, upon whom service had been attempted, was not an officer, agent, or employé of the defendant, the American Tobacco Company, or authorized to accept service of process upon it at that time. On January 25, 1912, service was made upon the Assistant Secretary of State of Louisiana. Exceptions to that service up on practically the same grounds were filed by the defendant company. A further service was undertaken on February 2, 1914, on the Secretary of State of Louisiana and like exceptions were filed by the defendant company to that service.

Testimony was taken and upon hearing

the District Court held that:

1. W. R. Irby was not the agent of the company at the time of the attempted service, and, therefore, the service upon him did not bring the company into court;

2. That the American Tobacco Company was not doing business in Louisiana at the time of the attempted service;

3. That the attempted service upon the Secretary of State of Louisiana did not bring the defendant corporation into court. *Section 7 of the Sherman Act provides that suits of the character of the one now under

W. R. Irby testified that thereafter he was the manager of the Liggett & Myers Tobacco Company, and that he had no connection whatsoever with the American Tobacco Company, nor had he drawn any salary from that company since December 1, 1911.

It is true that the record discloses some instances in which collections were made upon bills in the name of the Irby Branch of the American Tobacco Company after the revocation of Mr. Irby's authority as its agent. Most of them were stamped across the face, Liggett & Myers Tobacco Company.

There remained on hand with the Irby Branch at the time of the dissolution a quantity of cigarette paper which was continued to be delivered to purchasers by the employés of the Irby Branch of the Liggett & Myers Tobacco Company upon orders received from the American Tobacco Company, and for its benefit and upon its account. This practically continued until the stock was exhausted, which the testimony shows was within a month after the dissolution, and before the attempted service of process in this case.

There were lodged in the custom house in New Orleans powers of attorney of the American Tobacco Company giving authority to those named therein to do what was neces

sary to make out export papers on behalf of the company. These powers of attorney do not appear to have been revoked, and existed after the service of process. The defendant | company issued circulars subsequent to the time it was served with process in this suit; it also advertised in the New Orleans "newspapers.

A consideration of all the testimony leads us to the conclusion that the American Tobacco Company undertook in good faith to carry out the decree of dissolution, and to take that company out of business in the State of Louisiana. It is true, as found by the District Court, that at the time of the service, and thereafter, the American Tobacco Company was selling goods in Louisiana to jobbers, and sending its drummers into that State to solicit orders of the retail trade, to be turned over to the jobbers, the charges being made by the jobbers to the retailers. It further appears that these agents were not domiciled in the State, and did not have the right or authority to make sales on account of the defendant company, collect money, or extend credit for it. It also appears that the American Tobacco Company owned stock in other companies which owned stock in companies carrying on the tobacco business in the State of Louisiana. With these facts in mind we come to a consideration of the proper disposition of the case.

[1, 2] We agree with the District Court that Irby at the time of the attempted service upon him was not the authorized agent of the American Tobacco Company. On December 1, 1911, the American Tobacco Company conveyed its Irby Branch to the Liggett & Myers Tobacco Company. On the same day W. R. Irby, who had been the desiguated agent of the defendant company, resigned as a director of the American Tobacco Company, and ceased to remain in its employment. On December 5, 1911, the power of attorney was revoked as we have herein before stated by the company filing an instrument of revocation in the office of the Secretary of State of Louisiana; it is true that the revocation was by one of the vice presidents of the company and was attested by the seal of the corporation. But we are not impressed with the argument that this revocation was ineffectual because not sanctioned by formal action of the board of directors of the company. The vice president seems to have had authority in the matter. Apparently he acted with the knowledge and acquiescence of the corporation, and was carrying into effect the decree of dissolution.

[3, 4] Upon the broader question, we agree with the District Court that the American Tobacco Company at the time of the attempted service was not doing business within the State of Louisiana. The question as to what constitutes the doing of business in such wise as to make the corporation subject to service

of process has been frequently discussed in the opinions of this court, and we shall enter upon no amplification of what has been said. Each case depends upon its own facts. The general rule deducible from all our decisions is that the business must be of such nature and character as to warrant the inference that the corporation has subjected itself to the local jurisdiction, and is by its duly authorized officers or agents present within the state or district where service is attempted. Phila. & Reading R. R. Co. v. McKibbin, 243 U. S. 264, 37 Sup. Ct. 280, 61 L. Ed. 710; St. Louis Southwestern R. R. Co. v. Alexander, 227 U. S. 218, 226, 33 Sup. Ct. 245, 57 L. Ed. 486, Ann. Cas. 1915B, 77.

The fact that the company owned stock in the local subsidiary companies did not bring it into the State in the sense of transacting its own business there. Peterson v. Chicago, R. I. & P. R. R. Co., 205 U. S. 364, 27 Sup. Ct. 513, 51 L. Ed. 841; Phila. & Reading R. R. Co. v. McKibbin, 243 U. S. 264, 268, 37 Sup. Ct. 280, 61 L. Ed. 710. As to the continued practice of advertising its wares in Louisiana, and sending its soliciting agents into that State, as above detailed, the agents having no authority beyond solicitation, we think the previous decisions of this court have settled the law to be that such practices did not amount to that doing of business which subjects the corporation to the local jurisdiction for the purpose of service of process upon it. Green v. C. B. & Q. R. R. Co., 205 U. S. 530, 27 Sup. Ct. 595, 51 L. Ed. 916; Phila. & Reading R. R. Co. v. McKib bin, 243 U. S. 264, 268, 37 Sup. Ct. 280, 61 L Ed. 710.

The plaintiff in error relies upon International Harvester Co. v. Kentucky, 234 U. S. 579, 34 Sup. Ct. 944, 58 L. Ed. 1479, but in that case the facts disclosed that there was not only a continuous course of business in the solicitation of orders within the State, but there was also authority upon the part of such agents to receive payment in money, checks and drafts on behalf of the company, and to take notes payable and collectible at banks in Kentucky; these things, taken together, we held amounted to doing business within the State of Kentucky in such manner as to make the Harvester Company amenable* to the process of the courts of that State.

As to the attempted service of process upon the Secretary of State of Louisiana under the Louisiana Act of 1901 (Act No. 54 of 1904) as amended 1908 (Act No. 284 of 1908), we understand the Act, as construed by the State Supreme Court, is not applicable to foreign corporations not present within the State and doing business therein at the time of the service, and having as in this case withdrawn from the State and ceased to do business there. Gouner v. Missouri Valley Iron Co., 123 La. 964, 49 South. 657.

We reach the conclusion that the District

Court did not err in maintaining the exceptions filed by the defendant company and in quashing the attempted service made upon it. Judgment affirmed.

Mr. Justice McREYNOLDS took no part in the consideration or decision of this case.

(246 U. S. 58)

GULF, C. & S. F. RY. CO. v. STATE OF
TEXAS.

(Argued and Submitted Jan. 25, 1918. Decided
March 4, 1918.)

1. COMMERCE OF TRAINS.

No. 158.

In Error to the Court of Civil Appeals, Third Supreme Judicial District, State of Texas.

Suit by the State of Texas against the Gulf, Colorado & Santa Fé Railway Company. A judgment against defendant was affirmed by the Court of Civil Appeals (169 S. W. 385), and defendant brings error. Affirmed.

Messrs. J. W. Terry, of Galveston, Tex., Alex. Britton and Evans Browne, both of Washington, D. C., A. H. Culwell, of El Paso, Tex., and Robert Dunlap and Gardiner Lathrop, both of Chicago, Ill., for plaintiff in error.

Messrs. B. F. Looney and Luther Nickels, 58-REGULATION-STOPPING both of Austin, Tex., for State of Texas.

*Mr. Justice HOLMES delivered the opinion of the Court.

Under Vernon's Sayles' Ann. Civ. St. Tex. 1914, art. 6676, subd. 2, providing that four passenger trains each way, if so many are run daily, shall be required to stop at all county seat sta- This is a suit by the State to compel the tions, an order of the Railroad Commission re- defendant railroad, the plaintiff in error, quiring a railroad to stop two interstate trains at a county seat having a population of 1,500, to stop two interstate trains, one numbered and at which two other trains each way stopped 17 and southbound, the other numbered 18 daily, did not impose an unreasonable burden and northbound, at the City of Meridian, for on interstate commerce where, though the railroad competed with other railroads having shorter routes, and in order to keep its contracts for the carriage of the mails had to make fast time, it also appeared that the county seat in question was the only county seat at which it did not stop such trains, that it stopped them at some smaller places, and made a detour in order to go through Houston, and that the time required to stop such trains would be only four

or five minutes for one of them and about ten

minutes for the other. 2. COMMERCE

58-REGULATION-STOPPING

a time sufficient to receive and let off passengers. Meridian is the County Seat of Bosque County and has a population of 1500. Two other trains of the defendant going each way stopped there daily, but the Railroad Commission of the State found that these were insufficient for the needs of business

at that station and made the order that this?

suit seeks to have carried out. The statute* of Texas giving to the Commission power OF TRAINS. to make such order contains a proviso that As Vernon's Sayles' Ann. Civ. St. 1914, art. "four trains each way, carrying passengers 6676, subd. 2, requires railroads to render specified service to county seats with an aim for hire, if so many are run daily, Sundays that is not directed against interstate trains as excepted, be required to stop as aforesaid at such, the Railroad Commission was not deprived all county seat stations”—so that the Commisof power to require stopping of interstate trains at a county seat, thereby incidentally interfer- sion seems to have obeyed a statutory maning with such trains, by section 1 of the Hep-date. Art. 6676, (2), Vernon's Sayles' Texas burn Amendment to Interstate Commerce Act Civil Statutes. Another article, 6672, imposes (Act Feb. 4, 1887, c. 104, 24 Stat. 379, as amended by Act June 29, 1906, c. 3591, 34 Stat. 584 [Comp. St. 1916, § 8563]), and Act June 18, 1910, c. 309, § 7, 36 Stat. 544 (Comp. St. 1916, 88563), requiring carriers to make reasonable regulations affecting the facilities for transportation and giving the Interstate Commerce Commission jurisdiction over such matters. 3. RAILROADS ~254(4)—VIOLATIONS OF REGULATIONS-PENALTIES-SUCCESSIVE VIOLA

TIONS.

Vernon's Sayles' Ann. Civ. St. 1914, art. 6672, imposes a penalty of not more than $5,000 for every failure to obey a lawful order of the Railroad Commission. Article 6657 provides that if any railroad company be dissatisfied with any order or regulation adopted by the Commission it may file a petition in a court of competent jurisdiction against the Commission as defendant. Held that, where a railroad company ordered by the Commission to stop certain trains at a county seat instead of instituting a suit to test the validity of the order saw fit to await proceedings against it by the state, it was proper to impose a penalty for each failure

to stop.

The Chief Justice, Mr. Justice McKenna, and Mr. Justice McReynolds dissenting.

a penalty of not more than $5,000 for every failure to obey such lawful order, and this suit seeks to recover penalties as well. The trial Court confirmed the finding of the Commission that the present service is insufficient, and the order, and imposed a fine of $22,400, being $100 for each failure to stop. It stated the facts in great detail but it will not be necessary to repeat them here. The Court of Civil Appeals again confirmed the above finding and affirmed the judgment. The Supreme Court of the State refused to allow a writ of error, declaring itself unable to say that the conclusion of the lower Court was unwarranted as matter of law.

[1] This case does not require quite so critical an examination into the facts as was made in Mississippi R. R. Commission v. Illinois Central R. R. Co., 203 U. S. 335, 344. 345, 27 Sup. Ct. 90, 51 L. Ed. 209, and Atlantic Coast Line R. R. Co. v. Wharton, 207 U. S. 328, 330, 334, 335, 28 Sup. Ct. 121, 52 L

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

to make reasonable regulations affecting the facilities for transportation, the Interstate Commerce Commission having jurisdiction over such matters. But the State requires certain services to county seats with an aim that is not directed against interstate trains as such. The statute is subordinate to the regulations of the Commission so far as it may lead to an incidental interference with such trains and in the absence of any conflict it may stand as here applied. See Chicago, Burlington & Quincy R. R. Co. v. Railroad Commission of Wisconsin, 237 U. S. 220, 233, 35 Sup. Ct. 560, 59 L. Ed. 926.

Ed. 230, in order to decide whether the judg- | c. 309, §7, 36 Stats. 546, making it the duty ment of the State Courts and Commission of carriers, including sleeping car companies, and, it would seem, of the legislature, was wrong. If the reasoning that prevailed with the Court of Civil Appeals were applied to Meridian simply in view of the number of Its inhabitants there would be a serious question whether it could be sustained. For the consideration most emphasized was that no sleeping cars were attached to the local trains and that in order to make use of such accommodation on the trains in question passengers had to get in or out at stations from seven or eight to twelve or fifteen miles away. It was thought that when the railroad* furnished such accommodations to a part of the public it was bound to furnish [3] The other point argued here is that the the same to all others-a very questionable railroad could not be subjected to, at most, proposition as applied. The other fact re- more than one penalty while the validity of lied upon was that passengers not infre- the order was awaiting judicial determina. quently came on trains 17 and 18 destined tion. Ex parte Young, 209 U. S. 123, 147. for Meridian and had to get out at Morgan 28 Sup. Ct. 441, 52 L. Ed. 714, 13 L. R. A. or Clifton, the next stations to the north and (N. S.) 932, 14 Ann. Cas. 764, being relied south. We repeat that whether these facts upon. But the statutes of Texas provided would justify an intermeddling with inter- for a suit to test the validity of the order, state trains in favor of a place of this size, in a court either of the State or of the United merely as such, would be a serious question. States, Art. 6657. Reagan v. Farmers' Loan But the State Court sustained the order as & Trust Co., 154 U. S. 362, 391, 392, 14 Sup. one required by statute in favor of county Ct. 1047, 38 L. Ed. 1014. Railroad Commis.. seats, up to the number of four trains each sion of Texas v. Galveston, Harrisburg & way, Sundays excepted. The law is not di- San Antonio Ry. Co., 51 Tex. Civ. App. 447, rected adversely at interstate trains, but ex112 S. W. 345. Eastern Texas R. R. Co. v. presses the specific judgment of the legis- Railroad Commission (D. C.) 242 Fed. 300 lature as to the needs of the county seats, The railroad company saw fit to await proall of which, of course, it knew. If its judg-ceedings against it, and although the case in ment is correct, which we have no grounds for denying, the order may be justified, so far as its interference with interstate commerce is concerned, unless some other fact shows that the burden is too great.

all its aspects, is somewhat extreme the
judgment must be affirmed. Wadley South-
ern Ry. Co. v. Georgia, 235 U. S. 651, 669,
35 Sup. Ct. 214, 59 L. Ed. 405.
Judgment affirmed.

The CHIEF JUSTICE, Mr. Justice Mc

KENNA and Mr. Justice McREYNOLDS

dissent.

The only additional facts material to this point are that the defendant competes with railroads having shorter routes, that for that reason and in order to keep its contracts for the carriage of United States mails it has to make fast time and that it has little GREAT NORTHERN RY. CO. v. ALEXANor none to spare. On the other hand Merid

DER.

(246 U. S. 276)

ian is the only county seat at which it does (Argued Jan. 15, 1918. Decided March 4, 1918.)

not stop, and it does stop at some smaller places, as well as make a detour in order to go through Houston. The time that would be taken would be four or five minutes for Number 17, and about 10 minutes for Number 18, according to the trial Court. The Court of Civil Appeals says in general terms from three to five. We are not prepared to say that the finding that there will be no unreasonable burden is wrong.

[2] It is urged that the power of the State Commission has been taken away by the Hepburn Amendment to the Act to Regulate Commerce (Act Feb. 4, 1887, c. 104, 24 Stat. 379), of June 29, 1906, c. 3591, §1, 34 Stats. 584. and the further Act of June 18, 1910,

No. 130.

NATURE OF

1. REMOVAL OF CAUSES 3
RIGHT.
Under Judicial Code, c. 3, §§ 28, 39 (Act
March 3, 1911, c. 231, 36 Stat. 1094, 1099
[Comp. St. 1916, §§ 1010, 1021]), specifying cer-
tain grounds for removal, the right of removal
is statutory and a suit commenced in the state
court must remain there until cause is shown
for its transfer under an act of Congress.
2. REMOVAL OF CAUSES 3-FEDERAL EM-
PLOYERS' LIABILITY ACT-COMPLAINT.

291, prohibiting removal of causes arising under
Under Act April 5, 1910, c. 143, 36 Stat.
the federal Employers' Liability Act (Act April
22, 1908, c. 149, 35 Stat. 65 [Comp. St. 1916,
§§ 8657-8665]), an allegation that plaintiff's de-
when killed brought the case within such act,
was employed in interstate commerce
so as to prevent its removal, either because of

ceased

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

[blocks in formation]

4. REMOVAL OF CAUSES

25(1)-RIGHT TO

REMOVE-HOW DETERMINED.

Whether a case arising under a federal law is removable when it is commenced, no fraudulent attempt to evade removal being claimed, is determined by the complaint or petition, and the case cannot be made removable by the petition for removal or defendant's subsequent pleadings. 5. REMOVAL OF CAUSES 25(1)-RIGHT TO REMOVE-HOW DETERMINED.

A case arising under the federal laws, if nonremovable on the, complaint when commenced, cannot be made removable by defendant's evidence, or an order of the court upon a contested issue, but only by plaintiff voluntarily amending his pleadings, or by his voluntary dismissal or nonsuit of parties defendant. 6. REMOVAL OF CAUSES 3-RIGHT TO REMOVAL FEDERAL EMPLOYERS' LIABILITY

Аст.

Where plaintiff consistently contended that the proof supported the complainant's allegations that plaintiff's deceased was employed in interstate commerce when killed, defendant railroad could not remove the case, although it claimed that deceased was not so employed, and that the prohibition against removing cases arising under the federal Employers' Liability Act did not apply was upheld by the state Supreme Court, since the case could be converted into a removable one only by plaintiff's voluntary action.

and he alleges in his complaint that the defendant was an interstate carrier, organized under the laws of the state of Minnesota at the time the accident occurred; that the deceased was a conductor employed by the de♬ fendant in interstate commerce at the time he was killed; and that the proximate cause of the accident was the failure of defendant to fence its line, which resulted in the derailing of the car on which plaintiff's decedent was employed, causing his instant death.

The defense is a denial that deceased was employed in interstate commerce when injured, and a denial of negligence in the failure to fence, with a plea of assumption of risk. When the plaintiff rested his case the defendant "moved for a judgment of nonsuit and dismissal upon the merits, based upon the complaint of the plaintiff and upon the testimony adduced."

This motion asserted in various forms that the evidence introduced failed to show any actionable negligence on the part of the de fendant and concluded with a fifth paragraph, alleging, in substance, as follows:

That there was a fatal variance, amounting to failure of proof, between the allegation of the complaint that the deceased was employed in interstate commerce at the time he was injured and the evidence introduced; * * that, this variance is substantial in that with the complaint charging that the deceased was killed while engaged in interstate commerce, the defendant could not remove said case to the federal court,

In Error to the Supreme Court of the State whereas if the case as made by the proof had of Montana.

Suit by J. C. Alexander, as administrator of the estate of John P. Hall, deceased, against the Great Northern Railway Company. A judgment for plaintiff was affirmed by the Supreme Court of Montana (51 Mont. 565, 154 Pac. 914), and defendant brings error. Dismissed.

been made, to wit, an intrastate case, it could ognize the variance would operate to deny to the have been removed; and hence the failure to recdefendant a right under a statute or law of the United States, to wit, the right to remove such a case properly pleaded to the federal court.

The trial court having overruled this motion, the defendant introduced its evidence in defense and after the plaintiff's rebuttal was concluded renewed its motion, which was again denied, the defendant reserving, its exception, and thereupon the case was Mr. Cornelius B. Nolan, of Helena, Mont., submitted to the jury and judgment was enfor defendant in error.

Messrs. I. Parker Veazey, Jr., of Great Falls, Mont., and E. C. Lindley, of St. Paul, Minn., for plaintiff in error.

tered on the verdict in favor of the plaintiff. On review the Supreme Court of Montana

* Mr. Justice CLARKE delivered the opin- (51 Mont. 565, 154 Pac. 914) held that the ion of the Court.

This case presents for decision the question whether the nonremovable case stated in the complaint became one subject to removal when the plaintiff rested his case, and, as the defendant claimed, it became apparent that the allegation of the complaint that the deceased was employed in interstate commerce when killed was not sustained by the evidence.

We shall designate the parties as they were in the trial court, the defendant in error as plaintiff and the plaintiff in error as defendant.

The suit was commenced in a district court of Montana and is one to recover damages for wrongful death. The plaintiff was a citizen of Montana when the case was commenced

trial court had erred, and should have ruled that on the evidence adduced the deceased was not employed in interstate commerce when injured, but holding that the defendant had waived its right to remove by failing to file a petition for removal, as required by law, the court went forward and held, that a case of negligence at common law was stated in the complaint, and that the evidence introduced justified the trial court in submitting the case to the jury, and that the judgment must be affirmed.

In disposing of the question presented by this motion for "nonsuit and dismissal" which we are considering, the Supreme Court of Montana said:

"We recall but one respect in which a defendant can be seriously prejudiced in such a situa

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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