3. If the said Board may sue or be sued in a Federal court by the name of "The Board of Trustees of the Ohio State University," although not constituting a corporation of the State of Ohio, within the jurisdictional rule referred to in the first question, do the facts stated on the face of the bill sufficiently show that the persons composing said Board of Trustees are citizens of Ohio, or should the court take notice of the law creating said Board of Trustees, and of other laws of Ohio defining the qualification of such trustees, and by legal intendments find that the persons constituting said board when this bill was filed were in fact citizens of Ohio and that the requisite diversity of citizenship existed to give jurisdiction to the Circuit Court?

That the jurisdiction of a Circuit Court of the United States is limited in the sense that it has no jurisdiction except that conferred by the Constitution and laws of the United States; that a cause is presumed to be without its jurisdiction unless the contrary affirmatively appears; that such jurisdiction, or the facts upon which in legal intendment it rests, must be distinctly and positively averred in the pleadings or should appear affirmatively and with equal distinctness in other parts of the record, it not being sufficient that jurisdiction may be inferred argumentatively; and that, for the purpose of suing and being sued in a Circuit Court of the United States, the members of a local "corporation" are conclusively presumed to be citizens of the State by whose laws it was created, and in which alone the corporate body has a legal existence; are propositions so firmly established that further discussion of them would be both useless and inappropriate. Brown v. Keene, 8 Pet. 112, 115; Louisville, Cincinnati & Charleston R. R. Co. v. Letson, 2 How. 497; Marshall v. Baltimore & Ohio R. R. Co., 16 How. 314; Lafayette Insurance Co. v. French, 18 How. 404, 405; Covington Drawbridge Co. v. Shepherd, 20 How. 227; Ohio & Mississippi R. R. Co. v. Wheeler, 1 Black, 286, 296; Insurance Co. v. Ritchie, 5 Wall. 541; Robertson v. Cease, 97 U. S. 646, 648; Steamship Co. v. Tugman, 106 U. S. 118, 120;

King Bridge Co. v. Otoe County, 120 U. S. 225; Parker v. Ormsby, 141 U. S. 81; Continental Nat. Bank v. Buford, 191 U. S. 120.

It is equally well established that when jurisdiction depends upon diverse citizenship the absence of sufficient averments or of facts in the record showing such required diversity of citizenship is fatal and cannot be overlooked by the court, even if the parties fail to call attention to the defect, or consent that it may be waived. Mansfield, C. & L. M. Ry. Co. v. Swan, 111 U. S. 379; Martin v. Baltimore & Ohio R. R. Co., 151 U. S. 673, 689; Powers v. Chesapeake & Ohio Ry., 169 U. S. 92, 98. As late as in Minnesota v. Northern Securities Co., 194 U. S. 48, 62, 63, we said, both parties insisting upon the jurisdiction of the Circuit Court: "Consent of the parties can never confer jurisdiction upon a Federal court. If the record does not affirmatively show jurisdiction in the Circuit Court, we must, upon our own motion, so declare and make such order as will prevent that court from exercising an authority not conferred upon it by statute."

So that the fact stated in the certificate that neither party in the Circuit Court objected to its jurisdiction is of no consequence.

Two other cases illustrating the above rules may be specially referred to.

In Chapman v. Barney, 129 U. S. 677, 682, which was a suit, in the Circuit Court for the Northern District of Illinois, by the United States Express Company against a citizen of Illinois, the declaration alleged that the company was organized under and by virtue of the laws of New York and was a citizen of that State. The court said: "On looking into the record we find no satisfactory showing as to the citizenship of the plaintiff. The allegation of the amended petition is, that the United States Express Company is a joint-stock company organized under a law of the State of New York, and is a citizen of that State. But the express company cannot be a citizen of New York, within the meaning of the statutes regulating jurisdiction, unless it be a corporation. The allegation that the com

pany was organized under the laws of New York is not an allegation that it is a corporation. In fact, the allegation is, that the company is not a corporation, but a joint-stock company —that is, a mere partnership. And, although it may be authorized by the laws of the State of New York to bring suit in the name of its president, that fact cannot give the company power, by that name, to sue in a Federal court. The company may have been organized under the laws of the State of New York, and may be doing business in that State, and yet all the members of it may not be citizens of that State. The record does not show the citizenship of Barney or of any of the members of the company."

In Great Southern Fire Proof Hotel Co. v. Jones, 177 U. S. 449, 456, 457, the bill alleged that the plaintiffs Jones and others were members of a limited partnership association, doing business, by their firm name, under the authority of a Pennsylvania statute, and that such association was a citizen of that State. Although the constitution of Pennsylvania provided that the term corporation, as used in a certain article of that instrument, should be construed as including all joint-stock companies or associations having any of the powers or privileges of corporations not possessed by individuals or partnerships, and although the Supreme Court of Pennsylvania had held that it would not be improper to call a limited partnership, created under its statutes, a quasi corporation having some of the characteristics of a corporation, this court, without considering the merits of the case, said: "When the question relates to the jurisdiction of a Circuit Court of the United States as resting on the diverse citizenship of the parties we must look in the case of a suit by or against a partnership association to the citizenship of the several persons composing such association. That a limited partnership association created under the Pennsylvania statute may be described as a ‘quasi corporation,' having some of the characteristics of a corporation, or as a 'new artificial person,' is not a sufficient reason for regarding it as a corporation within the jurisdictional rule

heretofore adverted to. That rule must not be extended. We are unwilling to extend it so as to embrace partnership associations. We therefore adjudge that as the bill does not make a case arising under the Constitution and laws of the United States, it was necessary to set out the citizenship of the individual members of the partnership association of Jones & Laughlins, Limited, which brought this suit." The judgment was reversed, upon the ground that the jurisdiction of the Circuit Court did not affirmatively appear from the record. Upon the return of the cause to the court of original jurisdiction the bill was an ended, and it was alleged that each member of the partnership was a citizen of Pennsylvania. The case was then heard upon its merits and was again brought here and determined. Great Southern Fire Proof Hotel Co. v. Jones, 193 U. S. 532.

In the light of these decisions we come to the question whether the jurisdiction of the Circuit Court affirmatively appears in this case. If it does not, it must be held that that court had no authority to take cognizance of it.

The bill alleges that the defendant, the Board of Trustees of the Ohio State University, "was created by and exists under and by virtue of a law duly passed and enacted by the Legislature of said State of Ohio, on March 22, 1870, and now known and designated as sections 4105-9 and following, of the Revised Statutes of said State of Ohio, and the subsequent acts amendatory of and supplementary thereto;" that said board, "under and by virtue of the aforesaid laws and enactments, and at all times since its creation and establishment, is fully authorized and empowered to sue and be sued, to contract and be contracted with, to make and use a common seal, and to alter the same at its pleasure, and to adopt by-laws, rules and regulations for the government of said college, and to have the general supervision of all lands, buildings and other property belonging to said college, and of receiving by gift, devise or bequest, moneys, lands and other properties for its benefit and for the benefit of those under its charge, subject,

however, to the provisions, exceptions, and restrictions contained in section twenty and five thousand nine hundred and fifteen of the Revised Statutes of the State of Ohio;" and is "a citizen of and domiciled in the State of Ohio." 67 O. L. 20; 75 O. L. 126; R. S. Ohio, § 4105 et seq.

Do those averments, taken in connection with the statutes of Ohio relating to the defendant Board-of the provisions of which statutes judicial notice may be taken, Hanley v. Donoghue, 116 U. S. 1, 6-sufficiently show that the Circuit Court was entitled to take cognizance of this case?

If the defendant Board had been specifically averred to be and was in fact a corporation created by and existing under the laws of Ohio, then within the meaning of the adjudged cases the controversy would have been one between citizens of different States, and consequently within the jurisdiction of the Circuit Court; for, in that case, the legal presumption. would be that the Trustees were citizens of the State by which the corporation was brought into existence, and no averment or evidence to the contrary would be admissible for the purpose of withdrawing the suit from the jurisdiction of the Circuit Court. Ohio & Miss. R. R. Co. v. Wheeler, 1 Black, 286, 296. Here the averment is only that the defendant Board of Trustees is a citizen of and domiciled in Ohio; not that the Trustees themselves are citizens of that State. That averment alone is not sufficient. In Lafayette Ins. Co. v. French, 18 How. 404, 405, which was a suit brought in the Circuit Court of the United States for the District of Indiana, the declaration alleged that the plaintiffs were citizens of Ohio, and that the defendant, the Lafayette Insurance Company, was a citizen of Indiana. This court, speaking by Justice Curtis, said: "This averment is not sufficient to show jurisdiction. It does not appear from it that the Lafayette Insurance Company is a corporation, or, if it be such, by the law of what State it was created. The averment that the company is a citizen of the State of Indiana can have no sensible meaning attached to it. This court does not hold that either a voluntary association of