MILLER 'U; EASTEItN OItEGON GOLD MIN. CO.
345
MILLER 'D. EASTERN OREGON GOLD MIN. (OirCWU Oourt, D. Oregon.
Co.
MlU'oh 2. 1891.)
MOTION FOR NEW
A foreign corporation may be an "inhabitant" of a district or country other tha.n that of which it is a citizen or SUbject, or where it was organized, within the meaning and purpose of the term, as used in section 1 of the judiciary act of 1888. (SvtZabus by the Oourt.)
FOREIGN CORPORATIONS.
At Law.· Motion for new trial. John Gearin, for plaintiff. Arthur O. EmmO'l18 and. Frank V. Drake, for defendant. D:EADY, J. This action was commenced on.May 7,1889, to recover damages for the wrongful refusal of the defendant to transfer 6,000 shares of its stock on its books, whereby the plaintifflost the sale thereof, and Was damaged $24,000. . On the same day a summons was issued against ·the defendant, which Bates, president, and J.Gilwas personally served at once on " bert Bowick, director," of the On May 17th a motion was made to set aside the service because the defendant "is a foreign corporation," and the alleged CRuse of action" arose without the jurisdiction of the court," and it does not appear that.at the time said CRuse of action arose, or since, the defendant "either carried on business or had propflrty within the jurisdiction of this court." . 'On May 20th the plaintiff filed his affidavit, in which it is.stated that the defendant was organized in 1888 in London, England. and is owner of the Monumental mine and mill property I situate in Grant county, Or., and of no other property anywhere; that the defendant was organized to purchase and work said propert)', and was then engaged, in so doing; that at the time of the service of the summons, 3S aforesaid l on Bates and Bowick, the former was president of the defendant,and the latter director thereof, and both were large stoekholders therein, .and were then in Oregon looking after the business of working and managing said mine. On May 24th the motion to set aside the service of the summons was df.hied, and on the 25th of the same month the plaintiff filed an aIUeilded complaint, alleging therein, among other things, the facts aforesaid concerning 'the location and ownership of said mine, and also that the de.fendant is carrying on business in the state,of Oregon, and "is an in· habitant" thereof. . On May 30th a demurrer was filed to the amended complaint, and on June 19th the same was withdrawn, and the defendant had leave to file a plea in abatement, which was done on July 8th. The plea contained no denial of any allegation of fact in the complaint, but alleged that the '4efendant was an "inhabitant" of London.
346.·
On July 12th a demurrer was filed to this plea, and on November . 20th, after argument, the demurrer Was sustained. On December 4th an answer was filed, containing denials of sundry allegations in the complaint, and. a defense, to the effect that the plaintiff's shares were originally issued to one Isaac Kaufman, from whom the defendant purchased the mine, on condition that they should not be transferred until the title to the tnine was obtained frotn the United States, which was not yet done, and this fact the plahltiff well knew when he took the assignment of hill stock from Kaufman, and therefore the defendant was justified in refusing to transfer the san:J.e 011 its books. On January 3, 1890, the plaintiff replied to this defense, denying it in toto, and alleging that the only condition attending the sale was that the defendant should be put in possession of the mine, which was duly done. Thereafter, on Jul{ 2d. "the cause was tried with a jury, when there was a verdict for the plaintiff for $24,000, with interest thereon from February 29, 1889, on. which judgment was giv:en for the plaintiff, with costs. A motion for a new trial has been argued and submitted. On the argument two points were made in support of the motion: (1) That in setting the 'cause for trial the court did not give the defendant time. to get Bowick and one William E. Parsons, the trustee of the defendant, from London and New York, respectively, whereby the defend. ant lost the benefit of their advice and direction on the trial; and also their,testimony in support of the defendant's allegations as to the terms of the contract of purchase from Kaufman. There has been plenty of time to obtain the affidavits of these persons as to what they know on this subJect and would Swear to. Nothing of the kind has, been done, and therefore it does not appear that they are or were material witnesses for the defense. The counsel states what he ".expects toprove" by; them, but, in the unexplained. absence of the better evidence,....-the affidavits of Bowick and Parsons,-this amounts to nothing. :Nor does itsatialactorily appear that these. persons migbtnot have been, here atthe trial if they desired to be. They are both, .iuinterest and effect, parties tathe action, aud were in the state not long before the trial. An affidavit of Kaufman's is produced, stating that he :would testify in support of the deltmse; that he expected to be pJ:esent stthe trial, and' was Bubpcenaed late the evening before to appear and testify, but that, being tll/ken suddenly ill, he went the next morning, to.: save his life, to the Hot Springs in Idaho. But Kaufman is so thoroughly contradicted by. the counter-affidavits on this point ,that, he seems unw.orthy of credit. . And it appearing that the contract for the purchase of the mine was Jnwriting,·and, is in·the possession dithe. defendant, who has neglected or. refused to produce it, oral evidence ,as to its contents or provision concerning the assignment of Kaufman's stock, if anYI is inadmissible. Furthermore, it appears that Kaufman .not only actually indorsed the shares of stock in question, and delivered them to the plaintiff, but on
MILI,ER ,V.L EAsI'ERN, OREGON' GOLD lIIN. CO.
817
learning that, under the law of Grea.tBritaiti, the transfer must be made by deed, he executed; a. power of attorney, authorizing the execution of said deed, and delivered it to the plaintiff. His:oonduct in this respect is wholly'inconsistent with his proposed testimony. Neither did the defendant" at ,first ,make any such objection :to' the transfer' of the shares on its books as that Kaufman had no right to sign them, but only that, by the limited: company's act, the assignment must be made by the deed of the assignorjsnd when:thedeed )vas sented, then this objection, of want of right in KaUfman to make the as-signment was brought fobward. On the whole, I find no reason to grant a new trial on this ground. (2) That the court had no to hear or determine the easel because the defendant is not, and never was, an "inhabitant" of this diatrict. Section 1 of the judiciary act of 1888, among other things, provides that the circuit courts of the United Sta"tes shall have jurisdiction of all suits of a civil natum, where the matter in dispute exceeds the sum or value of $2,000, in which there shall be a controversy between citizens of a state and foreign states, citizens, or subjects. "But no pl'rson shall be arrested in one district for trial in another in any civil action before a circuit,or district COU!t, and no civil sUit shall be brought before either of said courts against any person, by any original process or proceeding, in any other district than that whereof he is ,an inhabitant; but, where the jurisdiction is founded only on the fact that the action is between citizens of the different states, suits shall be brought onlyin the district of the residence of either the plaintiff' or the defendant."
In the judiciary acts of1789 and 1875, following the term ant" in the above quotation, were the words: "Or in which he shall be found at the time of serving such processor commencing such proceeding." By this means the circuit c()urts are given jurisdiction in the general or abstract of all suits in whicb, as in this case, there is a controversy between a citizen of a state of tbe United States and a subjectofa foreign state. The clause in the act prescribing the place where a defendant may be stieddoes not affect this jurisdiction. It is so far a personal emption in favor of the defendant, which he may waive,:',a.nd consent to be sued in any district, without reference to his citizenship. Exparte Schollenberger,96 U. S. 377. And in Railway Co. v. Harris, 12 Wall. 65, the supreme court says that if a foreign corporation does business outside of the place of its organization, it thereby consents to be sued th('re,---is "found" there. ' Between being thus found in a district and being an inhabitant thereof there is no substantial difference. The reason' for dropping this clause in the act of 1888, I apprehend, was the liability to hardship or inconvenience, in the case of natural persons who might be thus sued far from home and the mea.nsof defense, ;while traveling through the countryon business or pleasure, without the least element of inhabitancy in the case. But this can never be the case with a foreign corporation es-
348
FEDERAL REPORTER,
voL45.
tablishedin business in a district other than a place of its organization. It is not probable that congress intended to give a corporation, the subject of a foreign state, engaged in business, with a local habitation in the United States, the option of suing a citizen of the United States in a nati<mal court l and to deny such citizen having a controversy with or a demand against such foreign subject, engaged in business in the United States, the corresponding privilege. And yet, if a corporation, the subject of a foreign state, cannot become an inhabitant of this district, because it cannot migrate here and become a citizen of the state, such result would follow. "An inhabitant ofa place is one who ordinarily is personally present there, not merely in itinere, but as a resident and dweller therein." Holmeav. Railway Co., 6.8awy. 277, {) Fed. Rep. 523. A natural person may be a citizen or subject of one country and an inhabitant of another. Why cannot a corpora:tion ·formed under the laws of Great Britain become an, inhabitant of Oregon? Take this case, for instance. The defendant, the Eastern Oregon Gold Mining Company, is a corporation formed in London for the express purpose ofpurchasing, owning, and working a mine in Oregon. It has no other property or business, and is here in the person of its officers and agents engaged in working the mine. The supreme court has not passed upon this question, and until it does I shall follow the dictates of my own judgment, which is that the within the meaning of the defendant is ail '''inhabit'ant'' of this . judiciary act. This question has been cOllsidered in Zambrino v. Railway 00., 38 Fed. Rep. 449,by Mr. Justice MAXEY, in which he came to the conclusion that the defendant, a Te;xasrailway CQrporation, whose principal office and place of business was in the eastern district of Texas, :was an of the western district of Texas, because its road extended there, where it had an agent.and office for the transaction of its ordinary business. This ruling was affirmed and followed in the similar case of Riddle v. Railroad Co. ,in 39 Fed"Rep. 290, by Justices McKENNAN and ACHESON. Of course, to enable .the court to exercise this jurisdiction over the defendant, the law of its procedure-the law of the state-must provide fOf the service of process within the district on some representative thereof. The statutes of Oregon provide, in effect, that· in an action against a private corporation the summons shall be served within the state "by delivering a copy thereof, together with a copy of the complaint, .. * * to the president or other head of the corporation." This has been done in this case, and the court thereby acquired jurisdiction of the person of the defendant, as well as the subject-matter of the suit-the controversy between the parties-which is conferred generally by the statute. The motion is denied.
IN RE SCHOVERLING.
349
In re
SCHOVERLING
et al. January 29, 1891.)
(Oircuit Oourt, S. D. New L
CuSTOMS DUTIBB-GUN-STOCKS-TARI1!'F ACT OJ!' OOTOBBR
2·. BAJI4E.'-bTnTloN.
The intention with which goods are imported into this country is immaterial. provided importers keep within the terms of the tari1f act. and duties are to be assessed. upon merchandise in the form or cOndition in which it actually arrives, and under the provisions of law applicable thereto. '
Appeal from Board United States General Appraisers. The "importers, Schoverling, Daly & Gales, of the city of New York, on the 20th of October, 1890, imported, per steamer Amsterdam, into the port ofNew York cel1ain gun-stocks with the usual metal mountings complete, without the harrels. The collector of the port assessed duty thereon under paragraph 170 of the tariff' act of October 1, 1890, which provides for both a specific and ad valorem duty upon "all double-barrelled, sporting, breech-loading shotguns." The collector held that they should pay such duty because ,the only use to which they could be put was in with the barrels of such arms, and it was admitted .by the importers to be their intention to fit the stocks with barrels imported by another house, in which a member onheir firm was a partner. The importers duly protested against this exaction of duty, claiming that t4ei:r mel,'(lhandise were, not shotgulls, but only parts thereof, and that they were properly dutiable under paragraph 215 of said tariff act of October 1, 1890, which reads as follows: "Manufactures. articles, or wares not specially enuillf'rated or provided for, composed wholly or in part:of)ron, steel, * * * or any other metal, and Wli,ether partly ox: wholly. manufactured, forty-five per centum ad 'Valo1'em." duly ap'pealed to the board of United States general appraisers, at the port of New York, which board affirmed the decision of the collector. The importers thereupon took the necessary proceedings under section 15 of the act of June 10, 1890, to bring the case before this court for a review of the decision of the board of general appraisers. The appraisers, in pursuance of an order of the court, duly filed their return, with the testimony taken before them, from which it appeared that the said. firm of Schoverling, Daly & Gales had an agreement with another firm, of which Mr. A. Schoverling was also a partner, by which the latter were to order the barrels for these goods, with the mutual understanding that the stocks and barrels after arriving at the port of New York by different shipments were to be put together, so as to make conlpleted double-barrelled, sporting" breech-loading spotguns; and that noth.
inK remained to be done after importation to the gun-stocks or to the barrels, except the ordinary mnnipulation'of,putting them together. Comstock £to Brown, for importers,Cited Farwell t.:8el1berger,40Fed,Hep. 529'; Luckemevel'v.J'/agone, 38 Fed. Rep. 35; Merritt v. Welsh, 104 U. S. 694, claiming that the importers had the right to import,goods in any condition to meet the requirements of the tariff «ct,ifi ordet tobave theil;goodsdutiable at a lower instead of a higher rate of\i ' , ,, ,F;dwardMitchell, Atty., and Hrmry C. Platt, Asst.p,. S. Atty., for collector and goVernment,,..,..., , " ,', ' Contehdea that, under tbepeculiar agreement shoWllbY. the evidence in this case, the completed gun-stock was, for duty pUl'posl)lI, only to be CQnsidered apart of an importation, the; other part of Whioh :was to arrive on f6raUpraoticai importation' ot' A completed shdtgun; that the manufacture was COlllplete, and nothing remained to be done after importation to make the merchandise a completed shotgun except taput toget.lJer, ,which done, by any person; that they 'had'been manufactured wholly and completely before importation, and adapted to be ,put together by the manufacturers before shipping; that the 'm'are' shipment of the completed shotguns under this parts; was only a schf'me to evade the payment of the lawful duty upon completed shqtguns, whieh evinced avery low standard of comml;1l'.cial morality; and tbat the duty was properly assessed by the eollect01'l1pon the merchandise in question under paragraph 170 of tariff act of Octol:>er 1, 1890, ti:l. S. l0573-G. A. 228.) .' ,LAGOMBE 1 Circuit Judge, (orally.) The questionbf intention does not enter into this case at all, provided the importers ,have done no more the of the tariff, they may do. , Such is the doc: th.an what, tnne of the' Lucke-meye:r and Farwell referred to on the argument. Whether their object was 'to make their goods more readily salable in this way, or by this particular method of importation to secure the entrance of the goods here at 'a lower rate of duty than they would otherwise have to pay, is wholly immaterial, provided that what they have done is within the terms of the tariff act. Now; there is no evidence that these articles were ever" assem bled" or brought tOjl;ether with gun-barrels on the other side. There is no finding to that effect by the appraisers; and, if there were such a finding of fact, I should be constrained to reverse it, because there is no evidence ill the record to support it. I'do not by this mean to imply that that single fact would be controlling of the case if it were here; it is enough to say that it is not here. For all that appears, the gun-stocks mayha\1e been bought from on'e manufaoturer, and' the' gun-barrels from another. They came here under a provision of the tariff act which lays a duty ul}on "sporting, breech-loading shotgt1hS," and lays a separate and a different duty upon the parts of which those sporting, breech-loadillg shotguns are composed, as "manufactures in Whole or in part of metal'!' It can be fairlyassumed that congress by that very terlninology meant to' allow importers who choose to do so, to bring in fragments of a combination article by different shipments, and then to employ domestic labor in putting them
851 together. It may have been intended to induce importers to employ to that extent the labor of thiscollntry, of having the article combined abroad. We cannot tell, of course, what operated upon the minds of the framers of that particular passage of the act. We can only deal with their language as they have set it down for us, and under that language it seems very clear that there is nothing in this shipment except "gun-stocks mounted, """""'-articles .which are properly .described in the tariff, QIllyby the phrase" manufactures composed wholly or in part of metal;" and they should therefore pay that duty, and no other. decision of the board of apPraiser!,! is reversed.
ENSLOW.
(DUtriet CO'ILrt, D. $mI.th Carolina. March, iS91.)
Where a per80l(l is arrested on a peace-warrant from one state judge, and mitted to jaU after hearing before anotherjudge acting within his Jurisdiction and in accordance with state p.ractice.!J.e be. by the fedeJ,'&l distnct court on habeas cOrp1Ll1,' as bemg depnved of hIS liberty WIthout dueprbcess of law, contrary to Const.U. S. Amend. a. .
PROCESS 01.'
PRACTICE.
.
.Habea8 ,(]o,pU8' . O. B ·. N<»1hrap, for petitioner. G. Lamb Buist, for the sheritf. SIMONTO}i,J.; A petitipnwas filed in this case, praying that a writ directing the sheriff of Cbarlestoncounty to produce the body of the petitioner, who is imprisoned in violation of the consti" tution of the United States. The specific violation charged is that he is deprived of his liberty without due processoflaw. Amendment 14. The sheriff produces the body of thepetitiouer, and fO.r return to thE.> writ says that he had been in his custodyunQ-el' a warrant from.Trial Justice WILLIMAN, under a peace-warrant; and that, while so in custody, he was the presiding judge of the brought beWrethe Honorable J. court of (Mntnon pleas for his county ; that his honor was· pleased to .order, after hearing the cause, that the prisoner be recommitted .to the jail of Charleston county. The prisoner,peing in jail under state process, having no special privilege or immunity, I cannot entertain this application imprisoned in violation of the constitution of the in the point charged. But the return. shows that he was committed a state judge after hearing. . This seems to me to be. due process of law. ,The state judge acted upon a matter within his jurisdiction, p!loSsed upon the constructionoCthe state. law and practice. See & parte Ulrich, 43 Fed. E,ep. 663.Were I to review his action, it would give to ,this proceeding the effect of a writ of ermr, which cannot be done.. & parte Park8, 9.3.0, S.18; Ec parte QarU, 106 U. S. 521,1 Sup. Ct. Rep. 535. Remand the prisoner.
pf habeas