State ex rel. The Baltimore & Ohio Telegraph Co. v. Delaware & Atlantic Telegraph & Telephone Co.

12 Del. 269

• Court: Superior Court of Delaware
• Decided: September 15, 1885
• Status: Published

Opinion

The Court, Comegys, C. J.:

In this case we are asked to decide, upon a rule to show cause, the question whether the plaintiff in the rule is entitled to ask for it; and if he be, whether he has shown such facts as, if true, would justify the court in granting it. Apparently no more important subject has arisen, for a long time, for decision in this State than that which the papers and argument present, of the right of a foreign corporation to ask for a mandamus to facilitate it in this State of the powers conferred upon it in the State of its creation. Its importance is greatly magnified because of a question which, but for the sufficiency for the purposes of decision of others presented, we should be bound to consider and pass upon. The case before us, does not, however, require that • we should go into that subject at any length, and therefore we will pass it.

The difficulty in dealing with the application to make the rule absolute, is that of seeing upon what it can be based. As we conceive, none has been shown to us. Supposing, for the mere sake of the argument, however, that a foreign corporation can have any existence, or capacity, in this State, to be recognized by its courts, without legislative enactment, how can it be claimed that the plaintiff in this case has such, seeing that its operations are expressly confined to the territorial limits of Maryland, whose creation the corporation is? Cases have been presented which decide that where, by the terms of the act of incorporation, or the general law of a State, a corporate body has power to act generally, everywhere, the States, by comity— that is, gracious favor, extended also by other States to their creations—will allow it to exercise, to a reasonable extent, its powers within them. That is to say, they will allow it to seek redress in their courts for breaches of contract, for example. But this is, obviously ex gracia merely. It cannot, in any sense, be claimed as a right. The States are independent; and can open their courts, or not, to foreignors, or foreign (that is, as applied to them) corporations. These latter, being mere artificial bodies, and not personal in a sense to entitle them to be treated, in a question such as this, as citizens of another State, the usage of comity which prevails, does not necessarily, or appropriately, exist for them. It is by the comity of a country, its courtesy to another country, that a citizen or subject of the latter is allowed to use its juridicial process. It is true that, so far as citizens of any State of the United States are concerned, there is secured to them, by the Federal Constitution, the same rights, privileges and immunities which citizens, as such, enjoy in their respective States. This is by virtue of, and to consolidate their nationality; but the provision is not for corporate bodies, which are citizens in no sense except for redress of grievances in the courts of the Union. In them they are such by judicial construction. Were corporate bodies entitled to the same recognition as citizens, then all constitutional restraint upon their creation would be nugatory. The 'provision of our own constitution which requires a vote of two-thirds of each branch of the legislature to pass a corporate act, could be rendered a dead letter by the courts, if comity could clothe a foreign creation with corporate functions here. This is conclusive of the view that, in this State at least, to give a foreign corporation the right to demand a mandamus to enable it to use its foreign franchises, something more is needed to insure compliance than the mere invocation of comity.

But the invoked action of comity would be misapplied in a case like that before us—of a corporation expressly limited, by its own charter, to the transaction of business within the limits of the State of Maryland. It is conceivable that a corporate body unrestricted to State territory, and created to pursue a business which might be followed anywhere, should, where there is no constitutional, or legal impediment in the way, be recognized by a State, and allowed to act in it by courtesy; but where one is expressly, as in this case, confined to the jurisdiction of its birth in its operations, it is not conceivable that it should be allowed to act beyond it. In the nature of its being, it cannot project itself, by any mere recognition of a court into another jurisdiction and act there—for it would have nothing to show in justification, To adopt it in anyway in another State, would be in fact a want of comity on the part of such State—as clothing it with a function which was withheld from it by the act which created it.

Without going any further into the subject, we give as our judgment that the motion in this case ought to be practical, and we therefore order that the rule be discharged.