56 F. 951 | 8th Cir. | 1893
(after stating the facts.) The question of jurisdiction stands at the threshold of every case. As said by the
“The rule, springing from tlie nature and limits of tlie judicial power of the United States, is inflexible, and without exception, which requires this court, of its own motion, to deny its own jurisdiction, and, in the exercise of its appellate power, that of all other courts of the United States, in all cases where such jurisdiction does not affirmatively appear in the record on which, in the exercise of that power, it is called to act. On every writ of error or appeal the first and fundamental question is that of jurisdiction, first of this court, and then of the court from which the record comes. This question the court is hound to ask and answer for itself, even when not otherwise suggested. and without respect to the relation of the parties to it.”
The jurisdiction of the circuit court in this case rqsts solely oni the ground of diverse citizenship. No federal question is presented. It is settled by many authorities that the fact of diverse citizenship must affirmatively and clearly appear, and cannot be inferred argumentatively. Brown v. Keene, 8 Pet. 112; Insurance Co. v. Rhoads, 119 U. S. 237, 7 Sup. Ct. Rep. 193; Menard v. Goggan, 121 U. S. 253, 7 Sup. Ct. Rep. 873; Kellam v. Keith, 144 U. S. 568, 12 Sup. Ct. Rep. 922; Roberts v. Lewis, 144 U. S. 653, 656, 12 Sup. Ct. Rep. 781; Wolfe v. Insurance Co., 148 U. S. 389, 13 Sup. Ct. Rep. 602; and cases cited in these various opinions. The citizenship of a. corporation is that of the state which created it. Shaw v. Mining Co., 145 U. S. 444, 12 Sup. Ct. Rep. 935. There is in the complaint no other averment of the citizenship of the defendant than that quoted in the foregoing statement. That is not an express allegation of its citizenship. It does not affirm in what state the defendant was incorporated; non constat but that it was a corporation created under and by the laws of the state of Texas, and operating a railroad in Arkansas.. The statutes of Arkansas regulating foreign corporations operating railroads in that state, whatever of penalty they may impose for disobedience, do not of themselves work a local incorporation; and besides, the fact of incorporation and citizenship cannot be argumentatively inferred. Neither is there anything in the record elsewhere which throws any light on the question of the citizenship of the defendant. Whatever may be the ijact in respect thereto, no amendment can be permitted in this court. Insurance Co. v. Rhoads, 119 U. S. 237, 240, 7 Sup. Ct. Rep. 193.
The judgment must be reversed, and the cause remanded for further proceedings.
