as a means to an end. Quinn v. Leathem, [1901] A. C. 495, 514. However these things may be, we have said enough to show that there is no anomaly in a statute, at least, which punishes a combination such as is charged here. It has been held that even the free use of land by a single owner for purely malevolent purposes may be restricted constitutionally, although the only immediate injury is to a neighboring land owner. Rideout v. Knox, 148 Massachusetts, 368. Whether this decision was right or not, when it comes to the freedom of the individual, malicious mischief is a familiar and proper subject for legislative repression. Commonwealth v. Walden, 3 Cush. 558. Still more are combinations for the purpose of inflicting it. It would be impossible to hold that the liberty to combine to inflict such mischief, even upon such intangibles as business or reputation, was among the rights which the Fourteenth Amendment was intended to preserve. The statute was assumed to be constitutional in Arthur v. Oakes, 63 Fed. Rep. 310, 325, 326.

But if all these general considerations be admitted, it is urged nevertheless that the means intended to be used by this particular combination were simply the abstinence from making contracts, that a man's right so to abstain cannot be infringed on the ground of motives, and further, that it carries with it the right to communicate that intent to abstain to others and to abstain in common with them. It is said that if the statute extends to such a case it must be unconstitutional. The fallacy of this argument lies in the assumption that the statute stands no better than if directed against the pure nonfeasance of singly omitting to contract. The statute is directed against a series of acts, and acts of several, the acts of combining, with intent to do other acts. "The very plot is an act in itself." Mulcahy v. The Queen, L. R. 3 H. L. 306, 317. But an act, which in itself is merely a voluntary muscular contraction, derives all its character from the consequences which will follow it under the circumstances in which it was done. When the acts consist of making a combination calculated to cause temporal damage, the power to punish such

acts, when done maliciously, cannot be denied because they are to be followed and worked out by conduct which might have been lawful if not preceded by the acts. No conduct has such an absolute privilege as to justify all possible schemes of which it may be a part. The most innocent and constitutionally protected of acts or omissions may be made a step in a criminal plot, and if it is a step in a plot neither its innocence nor the Constitution is sufficient to prevent the punishment of the plot by law.

It was urged farther that to make a right depend upon motives is to make it depend upon the whim of a jury and to deny the right. But it must be assumed that the constitutional tribunal does its duty and finds facts only because they are proved. The power of the legislature to make the fact of malice material we think sufficiently appears from what we already have said.

Finally it is argued that the Supreme Court of Wisconsin would hold that the statute extends to acts of which the motives were mixed and which were done partly from disinterested malevolence and partly from a hope of gain. If so, it is said, the statute would be open to all the objections at which we have hinted in dealing with the word "willfully." The Supreme Court did use some language which looked that way, but we consider it to have decided that the statute would be confined to combinations with intent to do wrongful harm. 110 Wisconsin, 193, 260. Thus limited, on whatever ground, the statute would punish only combinations of a kind for which no justification could be offered and those which were taken out of the justification by the motive with which they were made... We see no sufficient reason to believe that the court will go farther or construe the act in such a way as to raise questions which we need not go into here. Therefore it is unnecessary to consider whether, on a more literal construction, the portion dealing with malicious intent could be separated from that which deals with the purpose of merely willful injury, and saved, even if the latter were held to go too

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far. Probably the two phrases will be read together and the statute made unquestionable as a whole.

MR. JUSTICE WHITE dissenting.

Judgment affirmed.

Not being able to concur in the conclusion of the court that. the opinion of the Supreme Court of Wisconsin has affixed to the statute of that State a much narrower meaning than the text of the statute imports, and thinking, on the contrary, that not only such text but the construction of the statute adopted by the Supreme Court of Wisconsin operates to deprive the citizen of a lawful right to contract protected by the Fourteenth Amendment, I dissent.

THOMAS v. BOARD OF TRUSTEES OF THE OHIO STATE UNIVERSITY.

CERTIFICATE FROM THE CIRCUIT COURT OF APPEALS FOR THE SIXTH CIRCUIT.

No. 43. Argued March 3, 1904.-Decided November 14, 1904.

Jurisdiction of a Circuit Court of the United States must appear affirmatively from distinct allegations, or icts clearly proven, and is not to be established argumentatively or by mere inference and when jurisdiction depends upon diverse citizenship, absence of sufficient averments, or of facts in the record, showing such diversity is fatal and the defect cannot be waived by the parties, nor can consent confer jurisdiction. For the purpose of suing and being sued in the Circuit Court of the United States the members of a local corporation are conclusively presumed to be citizens of the State by whose law it was created and in which alone the corporate body has a legal existence.

While this court is not conclusively bound by the judgment of the highest

court of a State as to what is and is not a corporation of that State within

the jurisdictional rule, it will accept such judgment unless a contrary view is demanded by most cogent reasons.

An averment that a Board of Trustees of a state institution was created by and exists under the laws of a State, other than that of complainant, and is a citizen of that State, without alleging that it is a corporation of the State, or that each individual member of the Board is a citizen of that State, and where the highest court of the State has decided that the Board although possessing some of the attributes of a corporation is not a corporation of such State, and held, insufficient to sustain the jurisdiction of the Circuit Court on the ground of diverse citizenship. Where a Board of Trustees of an institution can by the legislative act creating it, sue and be sued collectively and is bound by the judgment, a citizen of another State can sue it as such Board collectively, without bringing in all the members thereof, in a Circuit Court of the United States provided it affirmatively appears that each member of the Board is a citizen of a State other than that of complainant.

THE facts are stated in the opinion of the court.

Mr. Lawrence Maxwell, Jr., with whom Mr. Joseph Olds was on the brief, for the Ohio State University.

Submitted by Mr. J. E. Sater and Mr. L. F. Sater for Thomas et al.

MR. JUSTICE HARLAN delivered the opinion of the court.

This case is before us upon certified questions relating to the jurisdiction of the Circuit Court.

The suit is in equity, and the plaintiff is a citizen of Michigan. The defendants are George Folsom, a citizen of California, and the Board of Trustees of the Ohio State University.

The object of the bill was to effect the partition of certain lands claimed by the plaintiff and the defendant Folsom as tenants in common, but held adversely by the defendant Board of Trustees. The plaintiff sought to have the title determined as preliminary to partition.

The Board of Trustees appeared and demurred to the bill as not making a case entitling the plaintiff to any relief against

The demurrer was sustained, and the bill dismissed-the decree reciting that neither the plaintiff nor the defendant Folsoin had any title or interest in the lands described in the bill, or in the rents or profits thereof, but that the same belonged to the Board of Trustees of the Ohio State University. Folsom entered his appearance in the Circuit Court, but made no defense, nor was any decree taken by default against him. From that decree the plaintiff and the defendant Folsom prayed and perfected an appeal.

It is certified that the jurisdiction of the Circuit Court was wholly dependent upon diversity of citizenship, and that neither defendant objected in the Circuit Court that the case was not of equitable cognizance or that the court, as a Federal court, was without jurisdiction to determine it. But in the Circuit Court of Appeals Folsom insisted, among other things; that the Circuit Court "had no cognizance of the cause because the requisite diversity of citizenship does not exist, the Board 'of Trustees of the Ohio State University not being a corporation of Ohio within the jurisdictional rule imputing to the members of that board citizenship of the State under whose law it is organized."

The Circuit Court of Appeals propound the following questions:

1. Does the bill sufficiently aver that the Board of Trustees of Ohio State University is a corporation of the State of Ohio, or does it aver facts which in legal intendment constitute said body a corporation of the State of Ohio, within the rule that a suit by or against a corporation in a court of the United States is conclusively presumed, for the purpose of the litigation, to be one by or against citizens of the State creating the corporation?

2. If the said Board of Trustees be not such a corporation as is required by the jurisdictional rule referred to, may this suit be maintained against it as "The Board of Trustees of the Ohio State University" without bringing the persons constituting the board before the court as defendants?

VOL. CXCV-14