known to congress. Indeed, in amending the act of 1875, congress retained the fifth section, and confirmed it. The time for the application for removal is changed, and all else is retained. The plaintiffs contend that if they could not have originally brought their suit in the federal court it cannot be removed. But the removal act requires the court to examine into the dispute or controversy, and to determine if that is within its jurisdiction. When a suit "brought originally into this court," the plaintiff must on the face of his complaint show jurisdiction. If he does not, the complaint will be dismissed. He may be a citizen of a different state from the defendant. He may hold lands under grant from another state. If he fail to show this on the record, he is dismissed. So, when it is sought to remove a case from the state to the federal court, unless the defendant can in his record show jurisdiction, he will be dismissed. But as the question is as to the "dispute or controversy," if he can show in his petition that, notwithstanding the skillful statements and omissions of the plaintiff, the suit really and substantially involves a dispute or controversy properly within the jurisdiction of this court, he will not be dismissed. This distinction clearly appears in Metcalf v. City of Watertown, 128 U. S. 589, 9 Sup. Ct. Rep. 173. It will be noticed that the question is, does the suit involve a dispute or controversy substantially and really within this jurisdiction? That is to say, in its nature and essence, not whether as an incident to the cause, a matter which might become a part of a defense dehors the record may or may not raise a federal question; but whether the real, substantial, fundamental issue made in the record, including the petition, is one over which this court by the law under the constitution has jurisdiction. To this extent, and no further, I concur with Judge SHIRAS in Dey v. Chicago, 45 Fed. Rep. 84. Several courts of the United States since the act of 1887-88 treat the petition as part of the record. State v. Railroad Co., 33 Fed. Rep. 725; Austin v. Gagan, 39 Fed. Rep. 626; McDonald v. Salem, 31 Fed. Rep. 577; Johnson v. Insurance Co., 35 Fed. Rep. 374. See, also, Fost. Fed. Pr. § 385. It appearing from the record in this case that the suit really and substantially involves a dispute or controversy whether the state of South Carolina has not passed an act impairing the obligation of a contract, alleged to have been made between the said state and the defendant, the cause presents a question within the original jurisdiction of this court, (Railroad Co. v. California, 118 U. S. 113, 6 Sup. Ct. Rep. 993,) and is removable.

The next question is, has the cause been removed? This being a removable case, as soon as the petition and bond were filed in the state court its jurisdiction absolutely ceased, and that of this court immediately attached. Railroad Co. v. Mississippi, 102 U. S. 135; Railroad Co. v. Koontz, 104 U. S. 5; Steam-Ship Co. v. Tugman, 106 U. S. 118, 1 Sup. Ct. Rep. 58; Crehore v. Railway Co., 131 U. S. 244, 9 Sup. Ct. Rep. 692.

The last question which we are asked to examine is, are there not considerations of comity and courtesy which would induce the court to withhold action? The petition for removal and bond were filed in the court

of common pleas for Beaufort county some days before the regular term of this court. Although it was the duty of the defendant removing to bring his case to this term, (Brown v. Murray, 43 Fed. Rep. 614.) I would, in courtesy to the state court, have withheld action until it could meet and receive the petition. The course of Judge GRESHAM in Shedd v. Fuller, 36 Fed. Rep. 609, would have been followed. But it has been brought to the attention of the court that the petition and bond were presented to the state judge charged with the case, and that he passed upon it. No discourtesy to the state court can now be supposed. Its action cannot in any way affect the course of this court in determining upon the right of removal.

With regard to considerations of comity, they have no place here. The question is one as to the right of the citizen, not as to the conduct of the court. Had an action been, brought in this court, after the jurisdiction of the state court had been engaged over the subject-matter in another action, then the court could properly consider whether it ought not to leave the parties to the tribunal first charged with the settlement of the dispute. But this is a case brought in the state court, removed into this court. In entertaining the petition for removal, this court cannot mean any reflection upon the state court. It simply considers whether the petitioners have the right to the removal. fusing it would be a denial of right.

If they have, re

FITZGERALD v. MISSOURI PAC. RY. Co. et al.

(Circuit Court, D. Nebraska. April 16, 1891.)

1. REMOVAL OF CAUSES-AMENDMENT OF APPLICATION.

The case as made by the petition for removal and the pleadings at the time of the removal is the test of the right to remove; and no amendment can be made in the circuit court, setting up grounds for removal which were not presented to the state court on the motion to remove.

2. FEDERAL COURTS-DECISIONS OF STATE COURTS.

The decision of the supreme court of the state that a particular corporation is a corporation of that state is binding on the federal court.

3. CONSOLIDATION OF CORPORATIONS-CITIZENSHIP.

When a consolidated company is formed by the union of several corporations chartered by different states it is a citizen of each of the states which granted the charter to any one of its constituent companies, and when sued in one of these states it cannot claim the right of removal on the ground that it is also a citizen of another state.

4. SAME.

A consolidated corporation which bears the same name in three states, and has one board of directors and the same share-holders, and operates the road as one entire line, and is designed to accomplish the same purposes, and exercises the same general corporate powers and functions in all the states, is not the same corporation in each state. While it is a unit, and acts as a whole, in the transaction of its corporate business, it is not a corporation at large, nor is it a joint corporation of the three states. Like all corporations, it must have a legal dwelling place, and it dwells in three states, and is a separate and single entity in each. It is, in effect, a corporate trinity, having no citizenship of its own distinct from its constituent members, but a citizenship indentical with each.

5. SAME

CONTRACTS.

In the conduct of its corporate business the consolidated corporation acts as a unit, as one corporation, and not three; and, in the absence of a statutory provision to the contrary, it may transact its corporate business in one state for all, and the contracts it enters into and the liabilities it incurs in one state are binding upon it in all the states, and may be enforced against it in any one of them, when the action is transitory.

6. EMINENT DOMAIN-SECURING RIGHT OF WAY.

The act of congress prescribing the mode in which a railroad company may secure the right of way through the public lands construed, and held that it is the duty of the railroad company, and not the contractor building the road, to do the things required by the act to secure the right of way.

7. CORPORATIONS-CONTROL OF CORPORATE PROPERTY.

The owner of all the stock and bonds of a corporation does not own the corporate property. The corporate property, which includes all rights of action and claims for damages, belongs to the corporation, and is subject to the management and control of its board of directors.

3. REMOVAL OF CAUSES-JURISDICTION-FEDERAL QUESTION.

No federal question is raised in a case by an answer that is bad in substance without reference to the federal question.

9. SAME.

A cause is not removable simply because in its progress it may become necessary to construe or apply an act of congress. Unless there is a dispute between the parties as to the meaning of the act, there is no federal controversy between them. The decision of the case, or some material issue in it, must depend upon a construction of the act claimed by one party and denied by the other. A simple averment that such is the fact is stating a conclusion, and is not sufficient; the facts

that show it to be true must be set out.

10. SAME-REMAND TO STATE COURT.

When it is settled that the jurisdiction of the circuit court in a removal cause is doubtful, all doubt as to what the court should do is dispelled, and the cause will be remanded. This rule is in harmony with the spirit and design of the act of congress repealing the act which allowed an appeal or writ of error from an order remanding a cause.

(Syllabus by the Court.)

In Equity. Removal from state court.

Marquett, Deweese & Hall, for plaintiff.

B. P. Waggener and R. S. Hall, for defendants.

CALDWELL, J. This cause was removed by the defendant the Missouri Pacific Railway Company from the state court into this court. The question now to be considered is whether it was properly removed. The suit is brought by the plaintiff as a stockholder in the defendant corporation the Fitzgerald & Mallory Construction Company, hereafter designated as the "Construction Company," on behalf of himself and all other stockholders of that company, to compel an accounting between that company and the defendant the Missouri Pacific Railway Company.

The railway company sets up two grounds for removal,-diverse citizenship and a federal question.

1. The averments in the petition for removal touching the citizenship of the parties are as follows:

"Your petitioner further avers that at the commencement of this suit the said plaintiff was and still is a citizen of the state of Nebraska, and at the commencement of this suit the defendant the Fitzgerald & Mallory Construction Company was and still is a corporation created, chartered, and organized under and by virtue of the laws of the state of Iowa; and your petitioner avers that it is advised and believes, and so charges the fact to be, that for the purpose of this action it was at the commencement of this suit, and still is, a Corporation chartered, incorporated, and created under and by virtue of the

laws of the state of Kansas; that prior to the commencement of this action your petitioner was made up of three several constituent companies, to-wit, a railroad company chartered, organized, created, and existing under and by virtue of the laws of the state of Missouri, a railroad company chartered, organized, created, and existing under the laws of the state of Kansas, and a railroad company chartered, organized, created, and existing under the laws of the state of Nebraska; that the said Missouri and Kansas corporations were, by due proceedings had under and by virtue of the laws of each of said several states, duly consolidated under the name of the Missouri Pacific Railway Company,' and subsequent thereto the said consolidated company was, by due proceedings had in 1882, duly consolidated with the Missouri Pacific Railway Company in Nebraska, which said latter consolidation was in all respects under and in pursuance of the consolidation and laws of the state of Nebraska, and that for the purpose of all contracts entered into in said state of Nebraska, and all causes of actions which accrued against said the Missouri Pacific Railway Company in said state of Nebraska, and for the enforcement of all statutory obligations by said consolidation, it became and was, and still is, a corporation organized, created, and existing in pursuance of the laws of the state of Nebraska; but your petitioner avers that said pretended cause of action set forth in plaintiff's petition filed herein arose and accrued out of a certain contract entered into between the said Fitzgerald and Mallory Construction Company and the said the Missouri Pacific Railway Company, as chartered, organized, created, and existing under and by virtue of the laws of the state of Kansas; * * * and your petitioner thereon avers that it is advised and believes that by reason of said matters and things, for the purpose of this action only, and by reason of the obligations, if any, growing out of contract relations between your petitioner and the said Fitzgerald & Mallory Construction Company, your petitioner was at the commencement of this suit, and still is, a citizen of the state of Kansas."

Like averments are made in the answer filed with the petition for removal in the state court. The case as made by the petition for removal and the pleadings at the time of the removal is the test of the right to remove. Graves v. Corbin, 132 U. S. 571, 10 Sup. Ct. Rep. 196; Jackson v. Allen, 132 U. S. 27, 10 Sup. Ct. Rep. 9; Rothschild v. Matthews, 22 Fed. Rep. 6; Stevens v. Nichols, 130 U. S. 230, 9 Sup. Ct. Rep. 518. No amendment can be made in the circuit court setting up grounds for removal which were not presented to the state court on the motion to remove. Id., and Cameron v. Hodges, 127 U. S. 322, 8 Sup. Ct. Rep. 1154; Crehore v. Railroad Co., 131 U. S. 240, 9 Sup. Ct. Rep. 692. The supreme court of Nebraska has decided that the railway company is a corporation of the state. The decision was rendered in a case brought against the railway company for the purpose of determining that question. State v. Railway Co., 25 Neb. 164, 41 N. W. Rep. 127. The decision is conclusive upon the question in this court, and puts an end to the defendant's claim to remove this cause on the ground of citizenship. But, independently of that decision, upon the averments of the petition for removal and the answer, it sufficiently appears that the defendant is a corporation and citizen of Nebraska. A denial of its citizenship in Nebraska, in the face of the facts set out in the petition for removal and the answer, is simply a denial of the law. It has long been settled law that when a consolidated company is formed by the union of several corporations chartered by different states it is a citizen of each of

the states which granted the charter to any one of its constituent companies, and when sued in one of those states it cannot claim the right of removal on the ground that it is also a citizen of another state. Dill. Rem. Causes, § 104, and cases cited; Mor. Priv. Corp. § 101; Fost. Fed. Pr. § 19. It is expressly averred in the petition for removal that the defendant the Missouri Pacific Railway Company was formed by the consolidation of companies originally chartered by the states of Missouri, Kansas, and Nebraska. This makes the consolidated company, for all purposes of jurisdiction in the federal courts, a citizen of each of those states. Although it bears the same name in the three states, has one board of directors and the same shareholders, and operates the road as one entire line, and is designed to accomplish the same purposes, and exercises the same general corporate powers and functions in all the states, it is not the same corporation in each state, but a distinct and separate entity in each. It is a corporate trinity, having no citizenship of its own distinct from its constituent members, but a citizenship identical with each. By the consolidation the corporation of one state did not become a corporation of another, nor was either merged in the other. The corporation of each state had a distinct legislative paternity, and the separate identity of each as a corporation of the state by which it was created, and as a citizen of that state, was not lost by the consolidation. Nor could the consolidated company become a corporation of three states without being a corporation of each or of either. While the consolidated corporation is a unit, and acts as a whole in the transaction of its corporate business, it is not a corporation at large, nor is it a joint corporation of the three states. Like all corporations, it must have a legal dwelling place. Every corporation, not created by act of congress, dwells in a state. This consolidated corporation dwells in three states, and is a separate and single entity in each.

For the purposes of jurisdiction in the federal courts, and securing to the states the exercise of their just powers over corporations of their own creation, and over property within their jurisdiction, the consolidated company is conclusively presumed to be a citizen of each of the states whose laws and corporations contributed to its formation. It enjoys in each state all the powers and privileges the corporation there chartered had, and must answer in the courts and is amenable to the laws of each state respectively as a corporation of that state. Railway Co. v. Whitton, 13 Wall. 270; Muller v. Dows, 94 U. S. 444; Farnum v. Canal Co., 1 Sumn. 46; St. Louis, A. & T. H. R. Co. v. Indianapolis & St. L. R. Co., 9 Biss. 144; same case under title of Pennsylvania R. Co. v. St. Louis, etc.. R. Co., 118 U. S. 290, 6 Sup. Ct. Rep. 1094; Racine, etc., R. Co. v. Farmers' L. & T. Co., 49 Ill. 331; Quincy R. Co. v. Adams Co., 88 Ill. 615; Chicago, etc., R. Co. v. Auditor General, 53 Mich. 91, 18 N. W. Rep. 586; Horne v. Railroad Co., 62 N. H. 454; Paul v. Baltimore, etc., R. Co., 44 Fed. Rep. 513; Nashua & L. R. Corp. v. Boston & L. R. Corp., 136 U. S. 356, 382, 10 Sup. Ct. Rep. 1004; Pacific Ry. Co. v. Missouri Pac. R. Co., 23 Fed. Rep. 565; Guinault v. Railroad Co., (La.) 6 South. Rep. 850; Central Trust Co. v. St. Louis, etc., R. Co., 41 Fed. Rep.