As we have already said at this term in Ayres v. Wiswall, 112 U. S. 192, S. C., ante, 90, "the rule is now well established that this clause in the section refers only to suits where there exists a separate and distinct cause of action, on which a separate and distinct suit might have been brought and complete relief afforded as to such cause of action, with all the parties on one side of that controversy citizens of different states from those on the other. To say the least, the case must be one capable of separation into parts, so that in one of the parts a controversy will be presented with citizens of one or more states on one side and citizens of different states on the other, which can be fully determined without the presence of the other parties to the suit as it has been begun.” Hyde v. Ruble, 104 U.S. 407; Fraser v. Jennison, 106 U. S. 191; S. C. 1 SUP. CT. REP. 171.

In the present case all the defendants are sued jointly and as joint contractors. There is more than one contract set out in the complaint, and there is, therefore, more than one cause of action embraced in the suit, but all the contracts are alleged to be joint and binding on all the defendants, jointly, and in the same right. There is no pretense of a separate cause of action in favor of the plaintiff, and against the Louisville & Nashville Company alone. The answer of the company treats the several causes of action alike, and makes the same defense to all. For the purposes of the present inquiry, the case stands as it would if the complaint contained but a single cause of action. The claim of right to a removal is based entirely on the fact that the Louisville & Nashville Company, the petitioning defendant, has presented a separate defense to the joint action by filing a separate answer, tendering separate issues for trial. This, it has been frequently decided, is not enough to introduce a separate controversy into the suit, within the meaning of the statute. Hyde v. Ruble, supra; Ayres v. Wiswall, supra. Separate answers by the several defendants sued on joint causes of action may present different questions for determination, but they do not necessarily divide the suit into separate controversies. A defendant has no right to say that an action shall be several which a plaintiff elects to make joint. Smith v. Rines, 2 Sum. 348. A separate defense may defeat a joint recovery, but it cannot deprive a plaintiff of his right to prosecute his own suit to final determination in his own way. The cause of action is the subject-matter of the controversy, and that is, for all the purposes of the suit, whatever the plaintiff declares it to be in his pleadings. Here it is certain joint contracts entered into by all the defendants for the transportation of property. On the one side of the controversy upon that cause of action is the plaintiff, and on the other all the defendants. The separate defenses of the defendants relate only to their respective interests in the one controversy. The controversy is the case, and the case is not divisible.

It is said, however, that by the New York Code of Civil Procedure, § 1204, "judgment may be given for or against one or more plaintiffs, and for or against one or more defendants," and under this it has been held that when several are sued upon a joint contract, and it appears that only a portion are bound, the plaintiff may recover against those who are actually liable. The same rule undoubtedly prevails in many other states, but this does not make a joint contract several, nor divide a joint suit into separate parts. It may expedite judicial proceedings and save costs, but it does not change the form of the controversy; that is to say, the case. The plaintiff can still sue to recover from all, though he may be able to succeed only as to a part.

The order remanding the case is affirmed.

BLATCHFORD, J., took no part in the decision of this case.
V.58-47

(114 U. S. 60)

ST. LOUIS & S. F. Ry. Co. and others v. WILSON.1

(March 23, 1885.)

1. REMOVAL OF CAUSE-PRINCIPAL RELIEF ASKED SINGLE Cause of ACTION—ANSWED -SEPARATE CONTROVERSY.

A suit against a railroad company, resident in the state of the complainant, to which suit an individual non-resident has been made a party defendant only in aid of the principal relief asked,-which is the transfer to the plaintiff of stock standing in the name of the last-named defendant on the books of such company,is a suit in truth and in form against both defendants upon a single cause of action, and cannot be removed from a state to a federal court unless the separate answer of the non-resident defendant introduces a separate controversy.

2. SAME-TRANSFER OF RAILROAD STOCK-RIGHT OF COMPANY TO JUDICIAL FINDING.

In a controversy as to the transfer of stock standing in the name of a party upon the books of a railroad company, such party and the company being both defendants, the company may well claim a judicial finding in the cause, which shall bind them, if, upon a final hearing, a transfer is ordered.

Appeal from the Circuit Court of the United States for the Eastern District of Missouri.

Jas. O. Broadhead, for plaintiff in error. Jas. S. Botsford, for defendant in error.

WAITE, C. J. This is an appeal from an order of the circuit court of the United States remanding a suit to the circuit court of the city of St. Louis, Missouri, from which it had been removed upon a petition filed under the act of March 3, 1875, c. 137, (18 St. 470.) The suit was in equity, and brought by William C. Wilson, the appellee, a citizen of Missouri, against the St. Louis & San Francisco Railway Company, a Missouri corporation, and Jesse Seligman and James Seligman, citizens of New York, to compel the company to transfer to Wilson on its books certain shares of its capital stock standing in the name of the Seligmans, and to issue to him certificates therefor. The petition states that Wilson purchased the stock at a sale under an execution issued upon a judgment in his favor and against the Seligmans, and that on the nineteenth of December, 1883, he exhibited to the company his certificate of purchase, and demanded that the company cause his name "to be entered on the stock books of said corporation as the owner of said shares of said capital stock, * * * and further duly notified said corporation to pay to him all dividends that might thereafter be declared and payable to and on said stock;" but that the company refused so to do. The prayer is for a transfer of the stock, the cancellation of the certificates to the Seligmans, the issue of new certificates and payment of dividends to Wilson, and an injunction prohibiting the Seligmans from acting as stockholders.

The company and the Seligmans filed separate answers, but setting up substantially the same defense, to-wit, that the stock, though standing in the names of the Seligmans, did not in fact belong to them when the execution was levied, or when the sale to Wilson was made, because they had long before that time sold and transferred their certificates to other parties for value, who were the real holders and owners of the stock, though not transferred to them on the books. The Seligmans in their answer deny the validity of the judgment against them, for the reason that it was rendered in a suit to which they were not parties.

The petition for removal was presented by the Seligmans alone, and, after stating the citizenship of the parties, proceeds as follows: "That there is in said suit a controversy wholly between citizens of different states, which can be fully determined as between them without the presence of the defendant, the St. Louis & San Francisco Railroad; that there is in said suit a sepa rate controversy wholly between said plaintiff and your petitioners, citizens

18. C. 22 Fed. Rep. 3.

of different states as aforesaid, which can be fully determined as between them, and your petitioners are actually interested in such controversy; that the controversy in said suit between plaintiff and your petitioners, as made by the pleadings, is wholly distinct and separate from that between the plaintiff and the St. Louis & San Francisco Railway Company." Upon this petition the state court removed the suit, but the circuit court of the United States remanded it. To reverse this order of the United States court the appeal was taken.

·

There is but one controversy in this case, and that is as to the duty of the railroad company to transfer to Wilson the stock standing in the name of the Seligmans on its books and to issue new certificates therefor. Upon the one side of that controversy is the plaintiff, a citizen of Missouri, and on the other the railroad company, a Missouri corporation. The sole purpose of the suit is to establish the duty and enforce its performance. This cannot be done without the presence of the company, for it is upon the company itself that the decree must operate. The Seligmans are made parties only in aid of the principal relief which is asked. As the stock stands in their names on the books, the company may well claim a judicial finding in the cause which shall bind them, if upon the final hearing a transfer is ordered. The suit, therefore, is in truth and in form against both the company and the Seligmans on a single cause of action, and cannot be removed unless the separate answer of the Seligmans introduces a separate controversy. This we have held in Louisville & N. R. Co. v. Ide, ante, 735, is not necessarily the effect of separate issues under separate defenses to the same action. No relief whatever can be granted unless it is found to be the duty of the company to transfer the stock, and as to that controversy the company is an indispensable party Central R. Co. of N. J. v. Mills, 113 U. S. 249; S. C., ante, 456; Thayer v. Life Ass'n, 112 U. S. 717; S. C., ante, 355.

The order remanding the cause is affirmed.

(113 U. S. 727)

COOPER MANUF'G CO. OF MOUNT VERNON, OHIO, v. FERGUSON and another,

Partners, etc.1

(March 16, 1885.)

1. INTERSTATE COMMERCE-COLORADO STATUTE-CORPORATIONS-AGENCIES.

The statute of Colorado, passed in the year 1877, entitled “An act to provide for the formation of corporations," cannot be construed to impose upon a foreign corporation limitations of its right to make contracts in the state for carrying on commerce between the states, for that would make the act an invasion of the exclusive right of congress to regulate commerce between the several states.

2. SAME-ARTICLE 15, 10, CONST. COLO., AND ACT OF 1877, CARRYING OUT ITS PROVISIONS. The obvious construction of article 15 of section 10 of the constitution of Colorado, (1876,) and of the statute passed by the legislature of that state in 1877, providing "for the formation of corporations," is that no foreign corporation shall begin doing business in the state, with the purpose of pursuing it or carrying it on, until it has filed a certificate designating the principal place where the business of the corporation shall be carried on in the state, and naming an authorized agent, residing in such principal place of business, upon whom process may be served. It cannot require such a certificate as a prerequisite to the doing of a single act of business, when there is no purpose to do any other business or have a place of business in the state.

In Error to the Circuit Court of the United States for the District of Colorado.

Section 10 of article 15 of the constitution of the state of Colorado, adopted in 1876, and still in force, provides as follows: "No foreign corporation shall do any business in this state without having one or more known places of

'S. C. 4 Fed. Rep. 498.

728

business, and an authorized agent or agents in the same upon whom process may be served." To carry into effect this clause of the constitution, the legislature of Colorado, in the year 1877, in an act entitled "An act to provide for the formation of corporations," enacted as follows:

"Sec. 23. Foreign corporations shall, before they are authorized or permitted to do any business in this state, make and file a certificate, signed by the president and secretary of such corporation, duly acknowledged, with the secretary of state, and in the office of the recorder of deeds of the county in which such business is carried on, designating the principal place where the business of such corporation shall be carried on in this state, and an authorized agent or agents in this state residing at its principal place of business upon whom process may be served; and such corporation shall be subjected to all the liabilities, restrictions, and duties which are or may be imposed upon corporations of like character organized under the general laws of this state, and shall have no other or greater powers."

Section 26 of the same act provided that a failure to comply with the provisions of section 23 should render the officers, agents, and stockholders of the corporation individually liable on all its contracts made while the corpo ration was so in default.

These provisions of the organic and statute law of the state being in force, the plaintiff in error, which was a corporation organized and existing under the laws of the state of Ohio, and having its principal place of business at Mount Vernon, Ohio, on February 22, 1880, at the county of Larimer, in the state of Colorado, entered into a contract in writing of that date with the defendants, who were citizens of Colorado, by which it was agreed that the plaintiff should sell to the defendants, and deliver to them on the cars at Mount Vernon, in the state of Ohio, a steam engine and other machinery, in consideration whereof, the defendants were to pay the plaintiff the price stipulated in the contract for such machinery.

This suit was brought by the plaintiff on August 10, 1880, to recover of the defendants damages for their breach of the contract. The defendants, among other defenses, pleaded-First, that when the contract was entered into, the plaintiff had not made and filed the certificate required by section 23 of the act of 1877; second, that at the time of making the contract the plaintiff did not have a known place of business in the state of Colorado, and did not have an authorized agent or agents in the state upon whom process might be served. The plaintiff demurred to both these answers, because they did not state facts sufficient to constitute a defense to the action. Upon the hearing of the demurrer the judges of the circuit court were divided in opinion, and the presiding judge being of opinion that the demurrer should be overruled, it was overruled accordingly, and the plaintiff electing to stand by its demurrer, judgment was entered against it dismissing its suit, and for costs. By the present writ of error the plaintiff brings that judgment under review.

The certificate of division of opinion recites the facts above set forth, and states the question upon which the judges differed to be: "Whether the tenth section of article sixteen" (fifteen) "of the constitution of the state of Colorado, and the twenty-third section of an act of the general assembly of the state of Colorado, passed in the year A. D. 1877, entitled an Act to provide for the formation of corporations,' were, or either of them was, under all the circumstances stated, and the various acts passed by the legislature of the state of Colorado, a bar in this action."

Walter H. Smith, for plaintiff in error. in error.

Thos. M. Robinson, for defendant

WOODS, J. The right of the people of a state to prescribe generally by its constitution and laws the terms upon which a foreign corporation shall be allowed to carry on its business in the state, has been settled by this court. Bank of Augusta v. Earle, 13 Pet. 519; Paul v. Virginia, 8 Wall. 168;

Ducat v. Chicago, 10 Wall. 410. The plaintiff in error does not deny this right, but insists that, upon a proper construction of section 10 of article 15 of the constitution of Colorado, and of section 23 of the act of 1877, its contract with the defendants was valid, and that its suit should have been maintained. As the clause in the constitution and the act of the legislature relate to the same subject, like statutes in pari materia, they are to be construed together. Eskridge v. State, 25 Ala. 30. The act was passed by the first legislature that assembled after the adoption of the constitution, and has been allowed to remain upon the statute book to the present time. It must therefore be considered as a contemporary interpretation, entitled to much weight. Stuart v. Laird, 1 Cranch, 299; Martin v. Hunter, 1 Wheat. 304; Cohens v. Virginia, 6 Wheat, 264; Adams v. Storey, 1 Paine, 90. It must be conceded that if the contract on which the suit was brought was made in violation of a law of the state, it cannot be enforced in any court sitting in the state charged with the interpretation and enforcement of its laws. U.S. Bank v. Owens, 2 Pet. 527; Groves v. Slaughter, 15 Pet. 449; Harris v. Runnels, 12 How. 79; Brown v. Tarkington, 3 Wall. 377; Davidson v. Lanier, 4 Wall. 447; Hanauer v. Doane, 12 Wall. 342; Wheeler v. Russell, 17 Mass. 258; Law v. Hodson, 11 East, 300; Little v. Poole, 9 Barn. & C. 192; Thorne v. Travelers' Ins. Co. 80 Pa. St. 15; Allen v. Hawks, 13 Pick. 82; Roche v. Ladd, 1 Allen, 441; In re Comstock, 3 Sawy, 218.

So far as appears by the record, the plaintiff had no principal place of business, nor any place of business whatever, in the state of Colorado, and the making of the contract set out in the complaint was the only business ever done by it, or that it ever purposed to do, in that state. The question, therefore, is whether, upon a true construction of the constitution and statute, the making of the contract which the plaintiff seeks to enforce, was, under the circumstances stated, forbidden. The contention of the defendant in error is that the prohibition against the doing of any business in the state by a foreign corporation, except upon the prescribed condition, includes the doing of any single and isolated act of business whatever. Thus broadly stated, it is clear that the interpretation of the defendants cannot be sustained. In a case involving the construction of the statute, the supreme court of Colorado held that a foreign corporation might, without complying with the provisions of the statute, maintain an action in the courts of the state to recover damages for trespass to its real estate. The court said: "The prohibition extends to doing business before compliance with the terms of the statute. We do not think this an abridgment of the right of a foreign corporation to sue. It extends only to the exercise of the powers by which it may be said ordinarily to transact or carry on its business. To what extent the exercise of these powers is affected we do not decide. Utley v. Clark-Gardner Lode Min. Co. 4 Colo. 369. So it is clear that the statute cannot be construed to impose upon a foreign corporation limitations of its right to make contracts in the state for carrying on commerce between the states, for that would make the act an invasion of the exclusive right of congress to regulate commerce among the several states. Paul v. Virginia, 8 Wall. 168. The prohibition against doing any business cannot, therefore, be literally interpreted.

Reasonably construed, the constitution and statute of Colorado forbid, not the doing of a single act of business in the state, but the carrying on of business by a foreign corporation without the filing of the certificate and the appointment of an agent, as required by the statute. The constitution requires the foreign corporation to have one or more known places of business in the state before doing any business therein. This implies a purpose, at least, to do more than one act of business; for a corporation that has done but a single act of business, and purposes to do no more, cannot have one or more known places of business in the state. To have known places of business it must be carrying on or intending to carry on business. The statute