as security for the indebtedness of the es- | association shall be held individually retate of Price upon the note, he to apply any sponsible, equally and ratably, not one for amounts which he might realize from said another, for all contracts, debts, and enstock as credits upon the note. In pursu- gagements of such association, to the exance of this agreement Otjen subsequently tent of the amount of their stock therein, paid the bank sums received from the Do- at the par value thereof, in addition to the minion National Bank on account of divi- amount invested in such shares. This sec. dends received until the sale of that stock, tion undertakes to hold all shareholders rewhen the proceeds of sale were likewise ap- sponsible, and questions have arisen under plied by him upon the note.

varying circumstances as to what constiOn February 19, 1896, the bank prepared tutes such shareholder. proof of claim against the estate of Price, In Anderson v. Philadelphia Warehouse and, at that time, believing the stocks Co. 111 U. S. 479, 28 L. ed. 478, 4 Sup. Ct. transferred to Otjen to afford a reasonable Rep. 525, it was held that the mere pledgee, security for the note to the amount of who had never acted as a shareholder, $4,484, indorsed a credit for that sum upon would not be liable as such, notwithstandthe note, as follows: "Forty-four hundreding the stock was transferred on the books and eighty-four ($4,484.00) dolls. paid on of the bank and the certificate issued to an ac. of within note June 18, '94, being pro- irresponsible person, in that instance a porceeds of sale of 30 shrs. stock Dominion ter in the employment of the company, and National Bank and 20 shares of stock lst this although the transfer had been thus National Bank of Hillsboro, 0.” The bank made for the purpose of avoiding liability filed its proof of claim for the balance of which might be incurred by the shareholdthe indebtedness upon the note; that no ers of the bank, in case of insolvency. In consideration was paid for said credit, and the course of the opinion, Mr. Chief Justice the same was not entered on the bank's Waite, speaking for the court, recognized books; that all dividends arising upon the that the real owner might be held liable as distribution of the estate of Price were ap- a shareholder, but in that case the facts plied upon the note.

showed the warehouse company, gought to The Hillsboro bank continued to do busi. be held as a shareholder, was never other ness until July 16, 1896. From the date of than a pledgee, and that notwithstanding transfer at all times the stock appeared the transfer to the irresponsible person, the on the books of the Hillsboro bank in the real ownership of the stock remained in the name of Otjen, there being nothing on the original holder. books to connect the Ohio Valley National In Pauly v. State Loan & T. Co. 165 U. Bank with the stock, or to indicate that it S. 606, 41 L. ed. 844, 17 Sup. Ct. Rep. 465, had any interest therein; that the defend the subject was considered at length, and ant bank at no time performed any act of it was held that one who was described ownership, or exercised or attempted to in the certificate as a pledgee, and who in exercise any of the rights of a stockholder good faith held the shares as such, was not in said bank, or of the Dominion National a shareholder, subject to the personal liaBank, unless the acts stated were, in le-bility imposed by § 5151. The previous gal intendment, of that character. The cases in this court were reviewed, and, in Ohio Valley National Bank procured the summing up the rules relating to the liashares to be transferred to Otjen because it bility of shareholders in national banks, dewas unwilling to assume the risk of the ducible from previous decisions, among statutory liability of a stockholder in re-other things it was said: “That the real spect thereto. The circuit court of appeals owner of the shares of the capital stock of held the bank liable as a stockholder (69 a national banking association may, in C. C. A. 609, 137 Fed. 461), and directed every case, be treated as a shareholder judgment accordingly.

within the meaning of § 5151.". And

again: “The object of the statute is not Messrs. Robert Ramsey and J. J. Muir to be defeated by the mere forms of for plaintiff in error.

transactions between shareholders and their Messrs. Henry M. Huggins and R. T. creditors. The courts will look at the reHough for defendant in error.

lations of parties as they actually are, or

as, by reason of their conduct, they must be Mr. Justice Day, after making the fore- assumed to be, for the protection of creditgoing statement, delivered the opinion of ors. Congress did not say that those only the court:

should be regarded as shareholders, liable Section 5151 of the Revised Statutes (U. for the contracts, debts, and engagements of 8. Comp. Stat. 1901, p. 3465) provides that the banking association, whose names apthe shareholders of every national banking pear on the stock list distinctly as shareholders. A mistake or error in keeping the parties after the death of Price, and the official list of shareholders would not pre-credit of the supposed value of the stock vent creditors from holding liable all who upon the note, and its presentation for alwere, in fact, the real owners of the stock, lowance and acceptance by the representaand as such had invested money in the tives of Price's estate? As the foregoing shares of the association. As already in- statement shows, the stock was originally dicated, those may be treated as sharehold- delivered to the bank, with a power of pubers within the meaning of § 5151 who are lic or private sale for the liquidation of the the real owners of the stock, or who hold pledge. After the death of Price the bank themselves out, or allow themselves to be caused the stock to be registered in the held out, as owners in such way and un- name of Otjen. After proof of the claim der such circumstances as, upon principles the dividends paid out of the Price estate of fair dealing, will estop them, as against were credited upon the note. If the bank creditors, from claiming that they were not, had followed literally the authority of the in fact, owners."

power of attorney attached to the note and And in Rankin v. Fidelity Ins. Trust & sold the stock at public or private sale, S. D. Co. 189 U. S. 242, 252, 47 L. ed. and itself become the purchaser, we take 792, 796, 23 Sup. Ct. Rep. 553, the doctrine it there could be no question that it would was stated that a defendant who was in fact thus have become the real owner of the the owner of shares of stock could not avoid stock, and, within the principles of the liability by listing them in the name of cases heretofore cited, the shareholder, liaanother, notwithstanding it might do so if ble under the terms of the statute. We it were the mere pledgee of the stock; think what was in fact done necessarily and further, that the case then under con- had the same effect; the bank applied the sideration turned upon the actual ownership value of the stock with the consent of the of the shares, which question was properly pledgeor, and thus vested the title in the left to the jury. And to the same effect bank. are well-considered cases in other courts, It is urged that although the indorsement Federal and state. It was held that the upon the note in the form in which it was real owner might be charged, although his presented to Price's administrator recited name never appeared upon the books of the credit as of June 18, 1894, being proceeds of bank. Davis v. Stevens, 17 Blatchf. 259, a sale of the stock, there never was a sale Fed. Cas. No. 3,653, opinion by Mr. Chief in fact, and that the bank is not estopped Justice Waite; Houghton v. Hubbell, 33 by anything shown in the case from showC. C. A. 574, 63 U. S. App. 31, 91 Fed. 453; ing the true situation and the actual transLaing v. Burley, 101 Ill. 591; Lesassier v. action between the parties. Kennedy, 36 La. Ann. 539.

Conceding, for this purpose, that Price's Assuming, then, the established doctrine representative could have insisted upon a to be that the mere pledgee of national strict performance of the power conferred bank stock cannot be held liable as a share in the authority given to the bank as to holder so long as the shares are not regis- the disposition of the collateral, yet, if tered in his name, although an irresponsi- the representative of Price desired to do so, ble person has been selected as the regis- there was nothing to prevent him from tered shareholder, we deem it equally set- waiving a strict compliance with the terms tled, both from the terms of the statute at- named, and permitting the bank to acquire taching the liability and the decisions which title to the stock by crediting its value on have construed the act, that the real owner the note. This is in fact what was done. Inof the shares may be held responsible, al- stead of selling the stock, the bank, in exethough in fact the shares are not registered cuting the authority conferred, indorsed in his name. As to such owner the law what it deemed the value of the stock, as of looks through subterfuges and apparent the date of the credit, upon the note, and, ownerships and fastens the liability upon reduced by the amount of this valuation, the shareholder to whom the shares really presented the note to the administrator of belong.

Price, who must have allowed the claim in Applying these principles to the case at this form, as it is specifically stated that bar, we think there can be no doubt of the the subsequent dividends upon the claim liability of the Ohio Valley National Bank were paid to the bank. By this transaction, in this case. Conceding that it was exempt who became the real owner of the stock ? so long as the relation which it held to the certainly not Otjen, for it is not contended stock was that of a pledgee, and that Otjen that he was other than a mere holder of the was the registered stockholder, holding for stock as collateral security to the bank, the benefit of the bank as pledgee, and not without any beneficial interest. Price had as owner,—what was the attitude of the died, and his representative had allowed the claim, showing the application of the value chusetts to review an order denying relief of the stock as a credit upon the note. If by habeas corpus to an alien minor child Price's representative could have objected of a naturalized citizen, who is debarred to the form in which the bank liquidated from landing because afflicted with a danthe pledge, he did not do so, but accepted gerous contagious disease. Affirmed. the bank's method of devesting him of title The facts are stated in the opinion. by allowing the claim with the credit upon Mr. Daniel B. Ruggles for appellant. it. The bank thus become the beneficial Assistant Attorney General Cooley for apowner of the stock, and had the Hillsboro pellee. National Bank continued solvent it certainly could not have denied to the Ohio Val- Mr. Justice Day delivered the opinion of ley Bank, after this transaction, the rights the court: and privileges of a stockholder.

This is an appeal from an order of the As we have seen, this court, in constru- circuit court of the United States for the ing the banking act, has not limited the district of Massachusetts, denying a petiliability to the registered stockholders. tion for a writ of habeas corpus filed by While the registered stockholders may be Charles Zartarian in behalf of Mariam Zarheld liable to creditors regardless of the tarian, his daughter, who, it was alleged, true ownership of the stock, and the , was unlawfully imprisoned, detained, and pledgee of the stock, not appearing other restrained of her liberty at Boston by the wise, is not liable, although the registered United States Commissioner of Immigrastockholder may be an irresponsible person tion, which imprisonment was alleged to of his choice, yet, where the real ownership have been in violation of the constitutional of the stock is in one, his liability may be rights of the said Mariam Zartarian, withestablished, notwithstanding the registered out due process of law, and contrary to ownership is in the name of a person, ficti- the provisions of § 2172 of the Revised tious or otherwise, who holds for him. Statutes of the United States (U. S. Comp.

We think the Circuit Court of Appeals Stat. 1901, p. 1334), which section, it is aldid not err in holding the bank, in view leged, made said Mariam a citizen of the of the facts shown in the case, as the true United States by virtue of the citizenship owner and responsible shareholder of the of her father, the petitioner. stock in question.

The United States District Attorney and Judgment affirmed.

the attorney for the petitioner stipulated the following facts:

“The petitioner, Charles Zartarian, for

merly a subject of the Sultan of Turkey, CHARLES ZARTARIAN, Appt., became a naturalized citizen of the United

V. GEORGE B. BILLINGS, United States Com-cuit court of Cook county, in the state of

States on September 12, 1896, at the cirmissioner of Immigration at the Port of Boston.

Illinois. That his daughter Mariam, on

whose behalf this petition is brought, is a Aliens-exclusion-effect of naturalization girl between fifteen and sixteen years of of parent.

age, and was born just prior to the petiAn alien minor child who has never tioner leaving Turkey. That in the latter dwelt in the United States is not, when part of the year 1904 the Turkish governcoming to join a naturalized parent, exempt ment, at the request of the United States from the provision of the act of March 3, 1903 (32 Stat. at L. 1213, chap. 1012, U. S minister at Constantinople, granted perComp. Stat. Supp. 1903, p. 170, U. S. Comp. mission to the petitioner's wife, minor son, Stat. Supp. 1905, p. 274), $ 2, debarring and his said daughter, Mariam, to emigrate aliens from landing if they are afflicted to the United States, it being stipulated in with a dangerous contagious disease, on the the passport issued to them that they could theory that she was invested with citizen never return to Turkey.

never return to Turkey. That on March 22, ship by virtue of the declaration of U. S. 1905, the Hon. G. V. L. Meyer, then United Rev. stat. & 2172, U. S. Comp. Stat. 1901, P: States Ambassador at Rome, Italy, issued

p. 1334, that minor children of naturalized States Ambassador at Rome, Italy, issued citizens shall, if "dwelling in the United a United States passport to your petitionStates," be considered as citizens thereof. er's said wife and daughter. That said Mar

iam arrived at Boston from Naples, Italy, [No. 120.]

on April 18, 1905, and that on April 18, Submitted December 7, 1906. Decided Janu. 1905, she was found to have trachoma, and

was debarred from landing by a board of ary 7, 1907.

special inquiry appointed by the United PPEAL from the Circuit Court of the States Commissioner of Immigration for the United States for the District of Massa- port of Boston."

A

The petitioner's child, Mariam Zartarian, In Campbell v. Gordon, 6 Cranch, 176, 3 was debarred from landing at the port of L. ed. 190, it was held that this act conBoston under the provisions of the act of ferred citizenship upon the daughter of an March 3, 1903, chap. 1012, 32 Stat. at L. alien naturalized under the act of January 1213, U. S. Comp. Stat. Supp. 1903, p. 170, 29, 1795 [1 Stat. at L. 414, chap. 20], she U. S. Comp. Stat. Supp. 1905, p. 274, enti. being in this country at the time of the tled "An Act to Regulate the Immigration passage of the act of April 14, 1802, and of Aliens into the United States."

then “dwelling in the United States." Section 2 of that act, among other things, The act has also been held to be prospecprovides that certain classes of aliens shall tive in its operation and to include children be excluded from admission to the United of aliens naturalized after its passage, when States, including "persons afflicted with a “dwelling in the United States.” Boyd v. loathsome or with a dangerous contagious Nebraska, 143 U. S. 135, 177, 36 L. ed. 103, disease." Upon the finding of the board of 115, 12 Sup. Ct. Rep. 375. inquiry that said Mariam had trachoma, she The construction of this law and the was debarred from landing.

meaning of the phrase "dwelling in the The contention is that she does not come United States” has been the subject of within the terms of this statute, not being much consideration in the executive dean alien, but entitled to be considered a partment of the government having to do citizen of the United States, under the pro- with the admission of foreigners and the visions of § 2172 of the Revised Statutes, rights of alleged naturalized citizens of the which provides: “The children of persons United States. The rulings of the State Dewho have been duly naturalized under any partment are collected in Prof. Moore's Di. law of the United States

being un- gest of International Law, vol. 3, pp. 467 der the age of twenty-one years at the et seq. time of the naturalization of their parents, The Department seems to have followed a shall, if dwelling in the United States, be rule established at an early period, and forconsidered as citizens thereof."

mulated with fullness in Foreign Relations As Mariam was born abroad, a native for 1890, p. 301, in an instruction from Mr. of Turkey, she has not become a citizen Blaine to Minister Phelps, at Berlin, in of the United States, except upon compli- which it was laid down that the naturalizaance with the terms of the act of Congress, tion of the father operates to confer the for, wanting native birth, she cannot other. municipal right of citizenship upon the mi. wise become a citizen of the United States. nor child if, at the time of the father's Her right to citizenship, if any she has, is naturalization, dwelling within the jurisdicthe creation of Congress, exercising the pow. tion of the United States, or if he come er over this subject conferred by the Con- within that jurisdiction subsequent to the stitution. United States v. Wong Kim Ark, father's naturalization and during his own 169 U. S. 649, 702, 42 L. ed. 890, 909, 18 minority. Sup. Ct. Rep. 456.

Whether, in the latter case, a child not The relevant section, 2172, which it is within the jurisdiction of the United States maintained confers the right of citizenship, at the time of the parent's naturalization, is the culmination of a number of acts on but coming therein during minority, acthe subject passed by Congress from the quires citizenship, is not a question now beearliest period of the government.

Their fore us. history will be found in vol. 3, Moore's In- The limitation to children “dwelling in ternational Law Digest, p. 467.

the United States" was doubtless inserted The act of 1872 is practically the same as in recognition of the principle that citizenthe act of April 14, 1802 (2 Stat. at L. 153, ship cannot be conferred by the United chap. 28, U. S. Comp. Stat. 1901, p. 1334), States on the citizens of another country which provided :

when under such foreign jurisdiction;'and “The children of persons duly naturalized is also in deference to the right of independunder any of the laws of the United States ent sovereignties to fix the allegiance of

being under the age of twenty-one those born within their dominions, having years at the time of their parents being regard to the principle of the common law so naturalized

shall, if dwelling in which permits a sovereignty to claim, with the United States, be considered as citizens certain exceptions, the citizenship of those of the United States; and the children of born within its territory. persons who are now or have been citizens It is pointed out by Mr. Justice Gray, of the United States shall, though born out delivering the opinion in United States v. of the limits and jurisdiction of the United Wong Kim Ark, 169 U. S. 649, 686, 42 L. ed. States, be considered as citizens of the Unit- 890, 904, 18 Sup. Ct. Rep. 456, that the nated States."

uralization acts of the United States have

a

been careful to limit admission to citizen- CONRAD WECKER, Plff. in Err., ship to those "within the limits and under the jurisdiction of the United States." NATIONAL ENAMELING & STAMPING The right of aliens to acquire citizenship

COMPANY and George Wettengel, Defts.

in Err. is purely statutory; and the petitioner's child, having been born and remained abroad, clearly does not come within the terms of Appeal-finality of decision below. the statute. She was debarred from entering court, rendered after the plaintiff, having

1. A judgment of a Federal circuit the United States by the action of the au- unsuccessfully moved to remand the cause thorized officials, and, never having legally to the state court whence it was removed, landed, of course could not have dwelt with had elected to stand upon his motion to rein the United States. Nishimura Ekiu v. mand, and refused to recognize the jurisUnited States, 142 U. S. 651, 35 L. ed. 1146, diction of the Federal court, that plaintiff 12 Sup. Ct. Rep. 336.

take nothing by the suit, and that the de

fendants go hence without day and recover It is urged that this seems a harsh appli- their costs against the plaintiff, is final for cation of the law; but if the terms of the the purpose of appeal. statute are to be extended to include chil- Removal of causes--separable controversy. dren of a naturalized citizen who have nev- 2. A Federal circuit court to which a er dwelt in the United States, such action case has been removed as presenting a must come from legislation of Congress, separable controversy properly refuses to re

mand the cause to the state court, where and not judicial decision. Congress has

the testimony shows that the real purpose made provision concerning an alien’s wife of the plaintiff in suing jointly in tort a or minor child suffering from contagious dis- resident employee and his nonresident emease, when such alien has made a declara- ployer was to prevent the exercise of the tion of his intention to become a citizen, right of removal by the nonresident deand when such disease was contracted on

fendant. * board the ship in which they came, holding Evidence-sufficiency-joinder of resident to

prevent removal of cause. them under regulations of the Secretary of

3. Uncontradicted testimony that the Treasury until it shall be determined resident employee sued jointly in tort with whether the disorder will be easily curable, his nonresident employer was merely a or whether such wife or child can be per- draftsman, whose work was confined to mitted to land without danger to other per making the necessary drawings based on the sons, requiring that they shall not be de- plans and ideas of others, and that he had ported until such facts are ascertained (32 which is alleged to have been so defectively

nothing to do with planning the apparatus Stat. at L. 1221, chap. 1012, U. S. Comp. constructed as to have caused the injury Stat. Supp. 1903, p. 185, U. S. Comp. Stat. complained of, is sufficient to support a Supp. 1905, p. 290). But Congress has not conclusion of law that such employee was said that an alien child who has never made a defendant for the sole purpose of dwelt in the United States, coming to join preventing the exercise of the right of rea naturalized parent, may land when amict-moval by the nonresident defendant.

afflict

Appeal-objections and exceptions. ed with a dangerous contagious disease.

4. The objection that a Federal circuit As this subject is entirely within con- court, on motion to remand a cause to the gressional control, the matter must rest state court whence it had been removed, there; it is only for the courts to apply the should not have determined, upon affidavits, law as they find it.

the question of the good faith of the plainIt is suggested that the agreed finding of ployee and his nonresident employer, is not

tiff in suing jointly in tort a resident emfacts contains no stipulation as to the dan-open to the plaintiff in error, who made no gerous or contagious quality of trachoma, objection to the consideration of affidavits but the petition shows that the petitioners in support of the petition for the removal, daughter was debarred from landing because and himself filed a counter affidavit. it was found that she had a dangerous contagious disease; to wit, trachoma. Fur

[No. 133.] thermore, the statute makes the finding of

Submitted December 14, 1906. Decided Jan. the board of inquiry final, so far as re

uary, 7, 1907. view by the courts is concerned, the only appeal being to certain officers of the De- N ERROR to the Circuit Court of the partment. 32 Stat. at L. 1213, chap. 1012,

I

United States for the Eastern District U. S. Comp. Stat. Supp.

Supp. 1905, p. 274; of Missouri to review a judgment in favor Nishimura Ekiu v. United States, supra. of defendants in a suit which had been re

Finding no error in the order of the Cir. moved to that court, as presenting a sepacuit Court, it is affirmed.

rable controversy, from the Circuit Court *Ed. Note.-For cases in point, see Cent, Dig. vol. 42, Removal of Causes, $ 79. tEd. Note.-For cases in point, see Cent. Dig. vol. 2, Appeal and Error, $$ 1212-1215.