and this would undoubtedly be true of an act done outside all the incorporating States. In one of the incorporating States, however, one should hold in strictness that it is the local corporation which is acting. But an act done anywhere binding one of the corporations will give a cause of action in either State of incorporation against the corporation in that State; whether because the corporations are to be taken as partners or, more probably, because the State in incorporating it subjected it to such a liability,-created it to be dealt with as one corporation and not two, in the language of Judge Doe.

§ 782. Suits by and against a consolidated corporation.

The same confusion seems to exist with regard to suits by or against such a corporation. Since a foreign corporation is not present, and cannot come into the State except by an agent, and since service of process on an agent will not generally give jurisdiction over the principal, it is not possible to get jurisdiction over a foreign corporation for purpose of suit in the ordinary way. Such a corporation may be sued only by its consent, express or implied; and jurisdiction is assumed over such foreign corporations only as come into the State to do business there." But where the corporation is chartered by two States, the corporation which acts in each State is the corporation there chartered; the corporation of the other State does not come in to do business, and hence it is impossible that it should be sued. Suit against such a consolidated corporation in one of the States which has chartered it is therefore suit against a corporation of that State.78 And therefore where such a corporation is sued in a State court it cannot remove the suit to a Federal court on the ground that it is a citizen of the other State,79 and suit

77 St. Clair v. Cox, 106 U. S. 350, 27 L. ed. 222.

78 Chicago & N. W. Ry. v. Whitton, 13 Wall. 270, 20 L. ed. 571; Pac. Ry. v. Mo. Pac. Ry., 23 Fed. 565; Dean v. La Motte Lead Co., 59 Mo. 523; Bernhardt v. Brown, 119 N. C. 506, 26 S. E. 162. See, however, Holland v. R. R., 16 Lea (Tenn.), 414.

79 Cohn v. Louisville, N. O. & T. R. R., 39 Fed. 227; Paul v. Baltimore

brought in the Federal court of one State by a citizen of that State against the corporation on ground of diverse citizenship of the parties must be dismissed, even though the cause of action arose in the other State.80

When such a consolidated corporation is plaintiff the same reasoning does not apply. A foreigner, not being present, may bring action by agent; and an attorney bringing suit for the consolidated corporation may therefore be as well attorney for the corporation of one State as for the corporation of the other. The earlier cases appear to hold, in such a case, that all the constituent corporations were joined in the suit.81 But this is not now the accepted doctrine. It is within the power of the corporation to choose which one of its members shall bring suit; and it is therefore held that the corporation as a citizen of one State may bring suit in the Federal courts against a citizen of the other State.82

There would seem to be no sound distinction in principle between corporations consolidated by the concurrent action of two States, and corporations created originally in one State and afterwards rechartered in another. But such a distinction has been made, with regard to Federal jurisdiction, by the Supreme Court of the United States. For purposes of jurisdiction a rechartered corporation is taken to be a citizen of the State which first chartered it, whether suit is brought by or against it.83 The view of the court was summed up by Mr. Justice Peckham as follows: 84

& O. & C. R. R., 44 Fed. 513; Fitzgerald v. Mo. Pac. Ry., 45 Fed. 812; Winn v. Wabash R. R., 118 Fed. 55.

80 Horne v. Boston & M. R. R., 18 Fed. 50; Burger v. Grand Rapids & I. R. R., 22 Fed. 561.

81 Ohio & M. R. R. v. Wheeler, 1 Black, 286, 17 L. ed. 130; County of Allegheny v. Cleveland & P. R. R., 51 Pa. 228.

82 Nashua & L. R. R. Corp. v. Boston & L. R. R. Corp., 136 U. S. 356, 34 L. ed. 363.

83 St. Louis & S. F. Ry. v. James, 161 U. S. 545, 40 L. ed. 802; St. Joseph

& G. I. R. R. v. Steele, 167 U. S. 659, 42 L. ed. 315; Louisville, N. A. & C.

84 Southern Ry. v. Allison, supra.

"A corporation may be made what is termed a domestic corporation, or in form a domestic corporation, of a State in compliance with the legislation thereof, by filing a copy of its charter and by-laws with the Secretary of State; yet such fact does not affect the character of the original corporation. It does not thereby become a citizen of the State in which a copy of its charter is filed, so far as to affect the jurisdiction of the Federal courts upon a question of diverse citizenship."

It will be noticed that the doctrine of these cases is carefully limited to corporations which having first come into existence as corporations of one State are afterwards rechartered in another State; and the decisions do not apply to corporations established as consolidated corporations by the simultaneous action of several States. Even so limited, the doctrine seems of questionable soundness, especially as applied to corporations defendant. It affords one more illustration of the anomalous nature of corporations chartered by two States.

§ 783. Present difficulties in dealing with consolidated corporation.

A recent case in the Circuit Court of Appeals has suggested anew the difficulty as the law now stands of dealing with the acts of such a corporation. A corporation created by the legislatures of Georgia and Alabama to engage in manufacturing in both States bought and mortgaged mills and a mill privilege lying in both States. The corporation had a common stock book, common officers, and authorized the mortgage by a single vote. The mortgage was foreclosed by an action brought in Ry. v. Louisville Tr. Co., 174 U. S. 552, 43 L. ed. 108; Southern Ry. v. Allison, 190 U. S. 326, 47 L. ed. 1078 (reversing Allison v. Southern Ry., 129 N. C. 336, 40 S. E. 91; Hollingsworth v. Southern Ry., 86 Fed. 353; Calvert v. Southern Ry., 64 S. C. 139, 41 S. E. 963; Wilson v. Southern Ry., 64 S. C. 162, 41 S. E. 971. The Supreme Court of North Carolina held the other view; Debnam v. Southern B. Tel. Co., 126 N. C. 831, 36 S. E. 269; Layden v. Knights of Pythias, 128 N. C. 546, 39 S. E. 47; Allison v. Southern Ry., 129 N. C. 336, 40 S. E. 91: Mowery v. Southern Ry., 129 N. C. 351, 40 S. E. 88. But the decision of the Supreme Court in Southern Ry. v. Allison, supra, has of course overruled these decisions.

the Federal court in Georgia by the trustee, a citizen of Alabama. The Alabama corporation afterwards filed in the Alabama State court a bill to redeem. The purchaser applied to the Federal court in Georgia for an injunction. It was held that the rights of the Alabama corporation had not been legally foreclosed, and that the injunction would therefore not be granted.85

McCormick, Circuit Judge, delivering the opinion of the court, said: "It was beyond the legislative power of the State of Alabama to so combine the corporation it created with a corporation of Georgia of the same name, composed of the same individual stockholders, and operated by the same officers, that a suit in a Federal court in Georgia against the Georgia corporation by a citizen of Alabama should become a suit against the Alabama corporation, and have binding force on it as a party thereto, without ousting the jurisdiction of the court; it seems to us that, for a stronger reason, it must be beyond the power of the corporations themselves, by any system of conducting their business, to clothe themselves with such peculiar citizenship." He added, however, significantly: "How far the unity of action in the prosecution of their enterprises by the two corporations may give such force to the decrees passed against one of them as may bind the other corporation in the matters affected by those decrees is a question which goes to the merits of the controversy, and is entirely beyond our inquiry into the jurisdiction of the Circuit Court to entertain this bill."

Pardee, Circuit Judge, vigorously dissented; and his language is worth quoting. "It is contended that, because the Alabama & Georgia Manufacturing Company was incorporated in the State of Georgia and in the State of Alabama, there were two distinct and separate legal entities-twins in law and in fact. If this contention be sound, then the fact that these twins in law had the same corporators, the same

85 Alabama & G. M. Co. v. Riverdale Cotton Mills, 127 Fed. 497.

stockholders, the same officers, the same property, and the same business requires their assimilation to the celebrated Siamese twins, so united that wherever one was the other was necessarily present, and requires the holding that whatever was the act of the one was necessarily the act of the other. And it also seems clear that, if they were two separate legal entities, in regard to the one plant and the one property and the one business, each was the full agent of the other, and each was bound by the other's transactions. Whenever a bale of cotton was bought for the cotton mills or a yard of cloth was sold from the same, whether transacted by the Alabama & Georgia Manufacturing Company of Alabama or the Alabama & Georgia Manufacturing Company of Georgia, it was complete and binding on both; and also when the board of directors of both these corporations, acting for and in the name of the Alabama & Georgia Manufacturing Company (wherever incorporated) in 1883, granted the mortgage, which was the subject of foreclosure in the main suit in this case, without specifying which particular corporation was acting, each corporation was privy thereto, and the mortgage then executed was the mortgage of both ' entities' and binding upon both entities.'

"It is clear to me that if the Alabama & Georgia Manufacturing Company chartered in Alabama, and the Huguley Manufacturing Company chartered in Alabama, are separate 'entities' from the corporations of the same name chartered in the State of Georgia, then they should be held to be joint tenants, privies in estate, and both fully bound by the proceedings had in the foreclosure suit."

784. Statutory provisions for consolidation.

In many States are provisions for the consolidation of corporations which either expressly or by implication cover domestic corporations only.86 But in a few States a general

86 See for instance Conn. 1903, ch. 194, § 75; Del. Corp. Supp. § 59ff.; Ky. Stat. § 555; Md. Gen. L. Art. 23, § 39; Mo. Rev. Stat. § 1334; Nev.