persons, or an association into a body politic, created by law, is a citizen of a State within the meaning of the Constitution." It is vital that the corporate character of the collective body should be averred or shown.

The fundamental inquiry therefore is whether the defendant Board of Trustees is a "corporation" within the jurisdictional rule that admits of a corporation being regarded, for purposes of suing and being sued in the courts of the United States, as a citizen of the State under and by the laws of which it was created. The pleadings, we have seen, do not in terms aver the Board to be a corporation; only that it is a citizen of and domiciled in Ohio, and to have been created as a collective body by the laws of that State, with power to sue and be sued by the name of the Board of Trustees of the Ohio State University. Those laws must therefore be examined in order to ascertain whether, for purposes of suit in the Circuit Court of the United States, the Board may be deemed a corporation of Ohio within the meaning of the above cases.

In determining this question we are confronted with the fact that the statute creating the defendant Board was clearly a special, as distinguished from a general act, and that the Constitution of Ohio forbade the passage of any special act conferring corporate powers. Const. Ohio, Art. XIII, § 1. So that the Board of Trustees cannot be held to have been made a corporation or endowed with corporate powers without holding that the act by which it was created was invalid under the Constitution of Ohio; whereas, the Supreme Court of Ohio have adjudicated that the act was valid as not conferring, and as not intended to confer, corporate powers on the Board.

This question was presented in Neill v. Board of Trustees of the Ohio Agricultural and Mechanical College, 31 Ohio St. 15, 21, (1876) which was the original name of the Ohio State University. The validity of the act creating the Board was there brought in question as having, to all intents and purposes, created a corporation and clothed it with corporate powers and privileges. But the Supreme Court of Ohio said:

"We are not able to yield our assent to this construction of the statute. The act is entitled 'An act to establish and maintain an agricultural and mechanical college in Ohio.' It creates a board of trustees to be appointed by the Governor by and with the advice and consent of the Senate; and commits to such board the government, control and general management of the affairs of the institution; and while the statute authorizes the board to make contracts for the benefit of the college, and to maintain actions, if necessary, to enforce them, and to exercise other powers similar to those conferred on bodies corporate, it does not assume to, nor does it in fact, create or constitute such board of trustees a corporation; and hence does not clothe it with corporate functions or powers. The State ex rel. The Attorney General v. Davis, 23 Ohio St. 434. The college is a state institution, designed and well calculated to promote public educational interests established for the people of the whole State, to be managed and controlled by such agencies as the legislature in its wisdom may provide. Similar powers, but perhaps less extensive, because less required, are conferred on the trustees of the various hospitals for the insane (73 O. L. 80), and on the board of managers of the Ohio Soldiers' and Sailors' Orphans' Homes (67 O. L. 53), and other institutions of the State. The powers thus conferred are essentially necessary to accomplish the objects for which these institutions were established. The power to establish them is found clearly granted in the seventh article of the Constitution." The article here referred to gave the legislature power to establish benevolent and other state institutions.

Thus, upon an issue distinctly made, the Supreme Court of Ohio has adjudged that the defendant Board is not, and was not intended to be made, a corporation of the State, but only an agency to manage and control a state institution as the State may direct or provide. And the interpretation of the state constitution upon which that judgment rests has never been modified by that court.

While the state court may not conclusively determine for

this court what is and what is not a corporation within the meaning of the jurisdictional rule that a corporation, for purposes of suing and being sued in the courts of the United States, is, under the Constitution and laws of the United States, to be deemed a citizen of the State by whose laws it is created, nevertheless, this court should accept the judgment of the highest court of a State upon the question whether a particular body created by its laws is or is not a corporation, by virtue of those laws, unless a contrary view is demanded by most cogent reasons involving or affecting the constitutional and statutory jurisdiction of the Federal courts. No such reasons exist in this case; and accepting the above decision of the Supreme Court of Ohio as correctly interpreting the constitution and laws of that State, we hold that while the defendant Board is clothed with some, it is not clothed with all, of the functions belonging to technical corporations, and is not such a corporation as may sue and be sued in a Circuit Court of the United States as a citizen of Ohio. A contrary ruling would, we apprehend, produce confusion and embarrassment in litigation relating to those public state institutions or agencies in Ohio which, according to the decision of its highest court, were not endowed, nor intended to be endowed, with corporate powers.

It is contended, however, that the bili sufficiently shows that the persons constituting the Board of Trustees of the Ohio State University were in fact citizens of Ohio, and therefore, as the Board had power to sue and be sued, and to contract and be contracted with, in its collective name, the requisite diversity of citizenship sufficiently appeared from the pleadings. This contention is not warranted by any distinct averments in the bill. The bill contains no such averment. As already stated, it alleges that the Board is a citizen of Ohio, not that the trustees are citizens of that State. As already stated, the bill does not in terms even allege that the Board is a corporation, although it shows that it possesses some of the characteristics of corporations. The constitution of Ohio pro

vides that no person shall be elected or appointed to any office in the State, unless he possesses the qualifications of an elector; and an elector must be a citizen of the State, Const. Art. XV, § 4, Art. V, § 1; therefore it must be taken not only that each Trustee of the Ohio State University holds an office within the meaning of the state constitution, but is in fact a citizen of that State; and the allegation that the Board was created by and existed as an organized body under the laws of Ohio was equivalent to an allegation that the trustees are each and all citizens of Ohio. Such is the process of reasoning by which it is attempted to support the jurisdiction of the Circuit Court in the present case. But it is settled that the jurisdiction of a court of the United States must appear from distinct allegations or from facts clearly proven, and is not to be established argumentatively or by mere inference. The presumption is that a cause is without the jurisdiction of a Circuit Court of the United States, unless the contrary affirmatively and distinctly appears. Brown v. Keene, 8 Pet. 112, 115, and other cases above cited.

For the reasons stated the first question must be answered in the negative. To the second question our answer is that as the Board was entitled to sue and be sued by their collective name, and would be bound by any judgment rendered against it in that name, the jurisdiction of the Circuit Court would have sufficiently appeared, so far as the pleadings were concerned, without bringing the several persons constituting the Board before the court as defendants, provided the bill had contained the additional allegation that each individual Trustee was a citizen of Ohio. Each branch of the third question must be answered in the negative. These answers will be certified to the Circuit Court of Appeals with liberty to that court to authorize such amendment of the bill in the Circuit Court as will show jurisdiction.

It is so ordered.

195 U.S.

Opinion of the Court.

WRIGHT v. LOUISVILLE & NASHVILLE RAILROAD COMPANY.

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIFTH

CIRCUIT.

No. 20. Argued October 25, 1904.--Decided November 14, 1904.

The constitution and laws of Georgia do not exempt from taxation shares of stock of a railroad corporation of another State held by a Georgia railroad corporation.

THE facts are stated in the opinion.

Mr. Boykin Wright and Mr. John C. Hart, Attorney General of the State of Georgia, for petitioner.

Mr. Alexander C. King and Mr. Joseph B. Cumming for respondent.

MR. JUSTICE HOLMES delivered the opinion of the court.

This case comes here on certiorari to the Circuit Court of Appeals, that court having affirmed, per curiam, a decree of the Circuit Court enjoining the Comptroller General of Georgia from collecting a tax for the year 1900. 116 Fed. Rep. 669; 117 Fed. Rep. 1007. In view of the conclusion to which we have been driven, it is enough to say that the question presented is whether shares of stock in the Western Railway of Alabama, an Alabama corporation, held by the Georgia Railroad and Banking Company, a Georgia corporation, are taxable as property of the latter, by the State of Georgia, under its constitution and statutes. The respondents, the plaintiffs below, are lessees of the Georgia corporation and are bound to reimburse the latter for the tax, if it has to be paid. Taking into account the decision in Kidd v. Alabama, 188 U. S. 730,