Such mortgage indebtedness rests for its security upon the credit and value of the entire line of road, its fixtures and franchises in both States, and which is indivisible, and so is each bond of the mortgage debt. The security being an entirety, and existing as it does locally in two different States, and is equally liable to sale in satisfaction of the mortgage debt. If one of these States may tax the whole, so may the other, and each will, in that case, tax interests and property situated in part without its territorial limits and jurisdiction, while neither that portion of the road situated in one or the other of these States is separately liable for any separate part of such indebtedness or bonds, but each is liable with all its interests for the whole. No portion of the bonds pertain to any one part of the road more than to another; and as there is no severance to the bonds, none can be made for taxation proportionate, or in reference to, the comparative work or line of road within the two different States. If taxable as to one bond, it is so as to all, and if in one State, so likewise in the other; and the result would be double taxation of the bonds or bondholders, and thus the burden would increase and be doubled again, if permissible at all, and the line of the road and its unity existed in still another one or more States. In the language of the United States supreme court, NELSON, J., as a better illustration than our language may give, "If Pennsylvania can tax these bonds, upon the same principle Maryland can tax them.** * The only difference in the two cases is, that the line of road is longer within the limits of the former than the latter. Her tax would be a more marked one beyond the jurisdiction of the State, as the property and interests outside of its limits would be larger. The consequence of this taxation of three mills on the dollar, if permitted, would be double taxation of the bondholders. Each State could tax the entire issue of bonds. * * The effect of this taxation upon the bondholders is readily seen. A tax of three mills per dollar of the principal at an interest of six per centum payable semi-annually, is ten per centum per annum of the interest. A tax, therefore, by each State at this rate amounts to an annual deduction from the coupons of twenty per centum; and, if this consolidation of the line of road extended into New York or Ohio, or into both, the deduction would have been thirty or forty. If Pennsylvania must tax bonds of this description, she must confine it to bonds issued * exclusively by her own corporations. * * To permit the deduction of the tax from the coupons in question, would be giving effect to the acts of the legislature of Pennsylvania upon the property and interests lying beyond her jurisdiction." III. LIABILITY TO SUIT FOR COMMON LAW CAUSE OF ACTION. Suit in Either State. A railroad company which is incorporated by two States, and which operates as one road in both States, is liable to an action in the courts of one of those States for dereliction of common law duties in the other State, as a common carrier, by discriminating between persons as to transportation on the road. The case cited of McDuffee v. The Portland & Rochester R. R. Co.2 was this: The Portland & Rochester Railroad Company, chartered by both the States of New Hampshire and Maine, and operating its road in both said States, discriminated in the State of Maine between certain persons in relation to the carriage, accommodations and price of carriage of express matter. There being a statute in New Hampshire inhibiting such discrimination, the plaintiff predicated his right of action upon such statute. Objection being made thereto, the court ruled that the statute but re-enacted the common law on the same subject, and which prevailed in Maine, and that, therefore, the common law right of action being essentially the same in both States, and the action being a transitory one, it might be maintained in the courts of New Hampshire, if the pleadings be so reformed as to make it an action at common law, saying nothing of the statute, and advised an amendment accordingly; and in so amending the court suggested, that it might be well to employ as much of the statutory language as practicable, but without reference to the statute. This proceeding was an action on the case, and the decision of the New Hampshire court asserts the right to maintain such an action, if for a common law cause, in one State for a cause arising in another State, when the laws of each on the subject of the right are as at common law, against a railroad corporation operating its road in both States. So, in the case of Harris v. The Baltimore & Ohio Railroad, a corporation created in Maryland, 1 McDuffee v. The Portland & Rochester R. R. Co., 52 N. H. 430; Railroad Co. v. Harris, 12 Wall. 65. 2 52 N. H. 430. and subsequently in the State of Virginia, and by act of Congress in the District of Columbia, by which its corporate capacity was extended under one and the same name into both Virginia and said District, making it one and the same corporation, with like powers in each. The plaintiff below, Harris, having bought a ticket in the District of Columbia over the road of said company to the Ohio river, was injured en route in Virginia, by a collision. Having sued the corporation in the District of Columbia for his injuries in Virginia, and the case having gone to the supreme court of the United States, that court held that such action would lie in said District, the company being one and the same there and elsewhere. In this case the plaintiff alleged a contract for safe transportation, and that by negligent management a collision occurred causing the injury, resting the right of action partly on contract and partly in tort as for negligence. The contract for passage was made in the District of Columbia, and the court held the suit rightly brought there. The action was predicated on only a common law right; thus the question as to the right to sue in one State, in a statutory action, for injuries incurred in another State, for which an action is given by statute of the State where the injury occurs, did not arise in this case. So in the case of Richardson v. The Vermont & Massachu setts Railroad Company, incorporated by, and operating its road in, the States of Vermont and Massachusetts, the supreme court of Vermont, in an action ex contractu, held that the company were liable to suit in each of said States. Moreover, the Vermont charter embodied a clause in substance requiring some officer of the company to at all times reside in Vermont, on whom process could be served, and that the company should be held to answer in the jurisdiction where service and return should be made. But here again, the point is not reached as to whether, if an action be brought in one of those States against this same company for an injury inflicted within the territorial limits of the other of those States, and the character of the action is not one at common law, but is one created by a statute of the State wherein the injury occurs, jurisdiction can be sustained in the State where such suit is brought. 1 Railroad Co. v. Harris, 12 Wall. 65. 244 Vt. 613. 3 Richardson v. Vermont & Mass. R. R. Co., 44 Vt. 613. IV. POWERS OF UNITED STATES COURT AS TO MORTGAGE FORECLOSURE AND SALE OF PROPERTY SITUATED IN TWO STATES. But when the proceeding is in the circuit court of the United States, and the proper parties exist to confer jurisdiction, as well as all other necessary jurisdictional circumstances to enable such court to take cognizance of the subject matter of the suit, and actual jurisdiction be obtained of the parties, then the court may decree in reference to the subject matter; as, for instance, against corporate works situated partly in two different States, and if the proceedings be for foreclosure of a mortgage against the same, and for sale thereof, irrespective of the property being locally situated in different States and districts than that in which the court is held, then the decree, in addition to order of sale, will enforce the parties in possession to deliver over to the purchaser the property sold on confirmation of the sale.1 I. II. CHAPTER XXVI. FOREIGN PRIVATE CORPORATIONS. INTER-STATE SUITS BY AND AGAINST CORPORATIONS. RIGHT OF A STATE TO EXCLUDE CORPORATIONS OF OTHER STATES. III. FOREIGN CORPORATIONS MAY DO BUSINESS IN A STATE IF NOT PROHIBITED. WHAT LAW GOVERNS THEIR CONTRACT. IV. INTER-STATE POWER OF CORPORATIONS TO HOLD LANDS. V. INTER-STATE SUIT AGAINST STOCKHOLDERS TO ENFORCE INDIVIDUAL VI. LIABILITY. INTER-STATE CONSOLIDATION OF RAILROAD CORPORATIONS. VII. POLICE POWER OVER FOREIGN CORPORATIONS IN A STATE. I. INTER-STATE SUITS BY AND AGAINST FOREIGN CORPORATIONS. May be Plaintiffs. Actions and suits ex-contractu may, by comity, be brought by a corporation, as plaintiff, in the courts of other States than that wherein the plaintiff resides, against natural persons or corporations of such other States; and this, too, irrespective of whether such plaintiff corporation be created under State or national authority. But quære, as to actions for torts. It is suggested by high authority that the latter cannot be maintained. In the case here cited, the supreme court of Illinois, LAWRENCE, J., say: "This was an action for a libel, brought by an insurance company incorporated under the laws of the State of Ohio. A demurrer to the declaration was sustained in the superior court, and that ruling is assigned for error. It has been held, both in England and this country, that a domestic corporation may maintain an action for libel. Whether a 1 Angel & Ames on Corps. $$ 372, 376; Libbey v. Hodgdon, 9 N. H. 394; Tombigbee R. R. Co. v. Kneeland, 4 How. 16; Bank of Augusta v. Earle, 13 Pet. 519; Bank of Marietta v. Pindall, 2 Rand. (Va.) 465; British Am. Land Co. v. Ames, 6 Met. 391; Frazier. Willcox, 4 Rob. (La.) 519; Bank of Edwardsville v. Simpson, 1 2 Hahnemannian Life Ins. Co. v. Beebe, 48 Ill. 87. |