99 F. 642 | 4th Cir. | 1900
Lead Opinion
after stating the facts as above, delivered the opinion of the court.
The assignments of error are that the court erred in refusing to, remand the cause to the state court, because the application for removal was not made in time; and .also because the Winchester & Potomac Railroad Company, against which relief was asked, was a corporation of West Virginia, in which'state appellants,resided, and removal ought not, therefore, to have been made; and, third, because the court sustained the demurrer to the bill and dismissed the same.
The removal from the state to the federal court seems to have been seasonably and properly made, and it is unnecessary, with the view we take of the case, to determine whether the Winchester & Potomac Railroad Company, a corporation chartered by the legislature of Virginia, has been made a West Virginia corporation by the laws of the latter state, or merely licensed to do business therein. The Baltimore & Ohio Railroad Company, as lessee of the Winchester & Potomac Railroad Company, is the defendant against whom relief is substantially asked, and that corporation has frequently been held to be a citizen of the state .of Maryland,- and not of the state of West Virginia. Hence the case was one properly removable into the federal court. Railroad Co. v. Harris, 12 Wall. 65, 20 L. Ed. 354; Martin v. Railroad Co., 151 U. S. 684, 14 Sup. Ct. 533, 38 L. Ed. 311, and cases there cited.
Upon the merits of the case, it will be observed that the decree of the lower court dismisses the appellants’ bill without prejudice to them to enforce any demand they might have against the appellees by action at law.
The questions involved in considering the demurrer to the appellants’ bill in this cause, and in determining the rights of the appellants under the contract or deed aforesaid, set out in their bill, have recently been under review both by the supreme court of the United States and by the circuit court of appeals for the Fifth circuit. Railway Co. v. Marshall, 136 U. S. 393, 10 Sup. Ct. 846, 34 L. Ed. 385; Same v. Scott, 41 U. S. App. 624, 23 C. C. A. 424, 77 Fed. 726, subsequently reported, on second appeal, in 36 C. C. A. 282, 94 Fed. 341. The principles enunciated in these two cases are
The fact that under the contract sued on the appellants claim the right to receive certain commissions and depot charges, and that in their bill they ask for an account, showing the revenues, from the depot, does not materially affect this case, as it is admitted that no depot has been maintained under their contract at the place therein provided for, during- the period covered by this suit, and it does not follow that an accounting of the revenues at another depot, at some other place maintained by the company, would throw any material light upon the damages claimed for breach of this contract, and which damages can be more readily determined in a court of law by a jury than in this forum.
It may be further remarked that no sufficient reason is given for. the great lapse of time that took place between thebreach of this contract and the institution of this suit. From March, 3875, until the institution of this suit, on the 27th of October, 1893, covers a period of nearly 19 years; and if it be contended that the time covered by the common-law suit, which is*still pending, should not
Concurrence Opinion
(concurring). I concur in the reasoning and conclusions of Judge WADDILL. The judge below in refusing to remand .seems to have had in mind the decision of the supreme court, filed subsequent to his decision, in Louisville, N. A. & C. R. Co. v. Louisville Trust Co., 174 U. S. 552 et seq., 19 Sup. Ct. 817 et seq., 43 L. Ed. 1081 et seq., and the cases there cited with approval. For the purposes of jurisdiction a corporation is a citizen of one state only, and state legislatures cannot pass acts to affect the jurisdiction of the federal courts, whether so intended or not. The conclusion, therefore, would be sound, even if the Winchester & Potomac Railroad Company were not a mere nominal party defendant.