Connor, J.,
after stating the case: The record presents •two questions for decision: 1. Is the defendant Coast Line Railroad Company, of Virginia, a foreign corporation ? 2. Is the controversy, set out in the complaint, separable as between the plaintiff ,and the two corporations? It will be convenient to dispose of the second question first. The Removal Act of 1887, sec. 2, provides that only those suits may be removed, by reason of diverse citizenship, when the controversy is wholly between citizens of different States. A large number of decisions are to be found in the State and Federal Reports in which the term “separable controversy” is discussed. It is not always easy to say upon which side of the line dividing those cases, in which for this cause suits may be or may not be removed, any given case falls. The tendency of the courts has been to narrow the line of cases which are removable under the act. The petitioner is required to comply strictly with the provisions of the statute, and bring the case clearly within its terms. Hughes on Fed. Proc., 302.
T'o constitute a separable controversy “the action must be one in which the whole subject-matter of the suit can be determined between the parties to the separable controversy, without the presence of the other parties to the suit. Moon on Removal of Causes, sec. 140. The question in respect to
tbe separability of the controversy must be determined upon an examination of the plaintiffs complaint. Allegations in the petition respecting the defenses of the several defendants are not to be considered.
In
C. & C. Ry. Co. v. Dixon,
179 U. S., 131, Fuller,
C. J.,
says: “It is conceded that if an action be brought on a joint cause of action, it mates no difference that separate causes of action may have existed on which separate actions might have been brought; and furthermore, it makes no difference that in a suit on a joint cause of action a separate recovery may be had against either of the defendants.” The learned
Chief Justice
cites with approval from
Powers v. C. & O. Ry.
Co., 169 U. S., 92: “It ia well settled that an action of tort, which might have been brought against many persons, or against any one ox more of them, and which is brought in a State court against all jointly, contains no separate controversy, which will authorize its removal by some of the defendants into the Circuit Court of the United States, even if they file separate answers and set up> different defenses from the other defendants, and allege that they are not jointly liable with them, and that their own controversy with the plaintiff is a separate one, for, as this Court has often said, ‘a defendant has no right to say that an action shall be severable which the plaintiff seeks to make joint; a separate defense may deféat ,a joint recovery, but it cannot deprive a plaintiff of his right to prosecute his suit to final decision in his own way. The cause of action is the subject-matter of the controversy, and that is, for all purposes of the suit, whatever the plaintiff declares it to be in his pleadings.’ ” In that case the defendant railway company and its employees, in charge of its train, were sued jointly for injury to the intestate of the defendant in error. The employees being residents of the State of Kentucky, the Su
preme Court sustained tbe Court of Appeals of Kentucky in denying tbe petition for removal.
Bellaire v. B. & O. Railroad Co.,
140 U. S., 117, was a proceeding by tbe plaintiff municipal corporation of tbe State of Ohio to condemn a rigbt-of-way over certain land in wbicb defendant corporation bad an interest, together with tbe other defendants. Tbe railroad company, a Maryland corporation filed its petition for removal on account of diverse citizenship.
Mr. Justice Gray
said: “The object of tbe suit was to condemn ,and appropriate to tbe public use a single lot of land. * * * Tbe cause of action alleged, and consequently tbe subject-matter of tbe controversy, was whether tbe whole lot should be condemned; and that controversy was not tbe less a single and entire one because tbe two defendants owned distinct interests in tbe land and might be entitled to separate awards of damages. Tbe ascertaining of those interests and tbe assessment of those damages were but incidents to tbe principal controversy divisible by itself, apart from tbe right of tbe other defendants and from tbe main issue between both defendants on tbe one side and tbe plaintiff on tbe other.”
Kohl v. U. 8.,
9.1 U. S., 367;
Winchester v. Loud,
108 U. S., 130. “When several persons participate in tbe commission of a tort, the'cause of .action accruing to tbe injured party is joint and several, in tbe sense that be will have bis option to proceed against one or more of tbe
tort-feasors
separately or to join them all as defendants in one suit. But if be elects to treat tbe liability of tbe defendants as joint, and proceeds against all of them in one action, it will be regarded as involving brrt one single controversy between tbe plaintiff on tbe one side and all tbe defendants on tbe other side, and no one of tbe defendants can remove the cause to a Federal Court on tbe averment that it contains a separable controversy between
the plaintiff and himself alone.” Black’s Dillon on Removal of Causes, see. 146;
Pirie v.
Tvedt, 115 U. S., 41;
Sloan v.
Anderson, 117 U. S., 275;
Little v. Giles,
118 U. S., 596.
In
Torrence v.
Shedd, 144 U. S., 527, it is said: “Not only in cases of joint contracts, but in actions for torts which might have been brought against all or against any one of the defendants, separate answers by the several defendants sued on joint causes of action may present different questions for determination, but they do not necessarily divide the suit into separate controversies. A defendant has no right to say that an action shall be separable which a plaintiff elects to be joint. * * * The cause of action is the subject-matter of the controversy, and that is, for all purposes of the suit, whatever the plaintiff declares it to be in his pleadings.”
The controversy which the plaintiff, according to his complaint, has with the defendants grows out of his alleged easement or rights in the streets upon which his dwelling is located, and the town common in front of his dwelling, by virtue of the trusts declared in the deed from ITowell to Moir and others, and subsequent acts of the General Assembly, and the alleged trespass upon or wrongful interference with such rights for which he claims damages. In addition to this cause of action, he says that the interference is continuous ; that other and further acts are' threatened by said corporations, for the prevention of which he asks injunctive relief. While he sets out, at length, the acts and conduct of the several defendants, he alleges that they are operating and maintaining their roads, in the matter of which he complains, pursuant to an existing agreement between them, and that the defendant the East Carolina Railroad Company is
owned or controlled by tbe other defendant, the Atlantic Coast Line Railroad Company.
It is manifest that the alleged wrongs of which he complains, and the continuance of which he seeks to prevent, are inflicted by the acts of both defendants, and for the purpose of this discussion pursuant to an agreement between them. It requires neither argument nor authority to show that if two railroad companies, by agreement, but each using separate tracks and cars, entered upon and occupied plaintiff’s premises, without legal right or authority, he would have a right of action against them jointly. If A and B, by an agreement so to do> drive their horses and wagons-upon my land, can there be any question that I may join them in one action for damages, and certainly before they have done so, I may maintain a bill, assuming that I have a right to invoke injunctive relief against them jointly to restrain the threatened trespass. It will be no answer to my action to say that they may have been sued separately. I am entitled to so join them that at the end of the litigation I am compensated in damages or protected against further interference against both the joint wrong-doers.
We express no opinion upon the merits of the controversy. Assuming the truth to be as alleged, and that the complaint states either an actionable injury or threatened illegal interference with plaintiff’s rights, Ave are., of the opinion that he is entitled to prosecute his action against the defendants jointly, and that, .therefore, the controversy is not, for the purpose of removal, separable. The second question raised by the record is of more difficulty because of the allegations in the complaint and condition of the record.
It is alleged that 'the petitioning defendant, called in the pleadings “the Atlantic Coast Line Railroad Company, of Virginia,” is “a corporation organized and existing under
and by virtue of the laws of the State of Virginia.” We note that the words “of Virginia” are separated from the word “Company” by a comma. We supposed that the plaintiff referred to and was prosecuting his action against the corporation created by chapter 71, Public Laws 1899, under the corporate name of “The Atlantic Coast Line Company of Virginia,” but upon close inspection of the record it appears that the words “of Virginia” are intended to be descriptive of the domicile of the defendant corporation, “the Atlantic Coast Line Company.” This construction is sustained by reference to the petition, in which the corporation describes itself as “the Atlantic Coast Line Railroad Company.” The report made to the Corporation Commission, a public record of which we must take judicial notice,
State v. Railroad,
141 N. C., 846, states that the “Atlantic Coast Line Railroad Company” is “made up” or composed of a number of “constituent companies” in the States of Virginia, North Carolina, South Carolina, Florida, Georgia, and Alabama. It is further stated that the organization and consolidation is made under the laws of the “State of Virginia.” The report further states that the charter under which the consolidation in North Carolina is made is the “act of General Assembly of North Carolina, approved 24 February, 1899.” By referring to this act we find it to be “An act to amend and re-enact chapter 284 of the Laws of 1893, concerning the Wilmington and Weldon Railroad Company, and to authorize that company to change its name to the Atlantic Coast Line Railroad Company of North Carolina.” The act, re-enacting the Act of 1893, conferred upon the Wilmington and "Weldon Railroad Company power to consolidate with any other railroad company and to permit any other railroad company, organized under the laws of this State, having power to consolidate, to do so
with said Wilmington and Weldon Railroad Company. It is expressly provided that this act shall not have the effect of ousting the jurisdiction of the courts of this State over causes of action arising in this State. The act ratified 24 February, 1899, confers upon the Wilmington and Weldon Railroad Company power "to consolidate or merge its railroads with, or to buy or lease the railroad or railroads of any other railroad company with which it may connect, either directly or indirectly, organized under the laws of this State or of any adjoining State, which, under the laws of this or such other State, may have power to consolidate, merge, sell, or lease its road; and any such other company shall have the right to consolidate, merge, sell, or lease its railroad in whole or in part, with or to the Wilmington and Weldon Railroad Company,” etc. The act contains a proviso that such railroad, etc., shall be liable to taxation in this State, and a further proviso that "This act shall not have the effect of ousting the jurisdiction of the courts of this State over causes of action .arising within this State:
Provided
further, that any and all corporations consolidated, leased or organized under the provisions of this act shall be domestic corporations of North Carolina, and shall be subject to the laws and jurisdiction thereof.” Section 2 confers upon the Wilmington and Weldon Railroad Company power to change its name to the “Atlantic Coast Line Railroad Company of North Carolina.” The report to the Corporation Commission states that the consolidation was completed 1 July, 1902. Prior to 1813 the Williamston and Tarboro Railroad extended from Tarboro in this State to Williams-ton. The Seaboard and Raleigh Railroad Company was chartered by act of General Assembly, 1813-14, ch. 46, with power to purchase the Williamston and Tarboro Railroad Company. Section 18, ch. 46. Thereafter, Laws 1883, ch.
48, the Seaboard and Ealeigh Eailroad Company was authorized to change its name to the Albemarle and Ealeigh Eailrond Company. The report made to the Eailroad Commissioners by the Wilmington and Weldon Eailroad Company (1894, page 58) states that the “Albemarle and Eal-oigh Eailroad Company, from Tarboro to Plymouth, consolidated with the Wilmington and Weldon Eailroad Company and operated as a prolongation of the Tarboro Branch.” The Wilmington and Weldon Eailroad Company, after 1894 and up to and including the year 1899, reported to the Commission as a separate corporation (Eeport- 1899, p. 82), including the branch from Eocky Mount to Plymouth. Eor the year 1900 “the Atlantic Coast Line Eailroad” makes a report to the Commission (p. 98) showing “Property Operated” — a large number of railroads, including, although the mileage is distributed differently, the Wilmington and Weldon Eailroad and its branches. There is nothing in any of these reports indicating in what State the “Atlantic Coast Line Eailroad Company” is incorporated, except the statement that the consolidation was made under the laws of Virginia. In the absence of any other statute of public record showing any change in the domicile of the defendant corporation, we look to the act ratified 24 February, 1899, in which the General Assembly conferred the power upon the Wilmington and Weldon Eailroad Company to consolidate, etc., expressly providing that “any and all corporations consolidated, leased or organized under the provisions of this act shall be domestic corporations of North- Carolina and subject to the laws and jurisdiction thereof.” If this provision is valid, it would seem that no power is conferred upon the domestic corporation, chartered by the General Assembly of this State during the Session of 1833, to change its domicile or become, for any purpose, a foreign corporation.
It is elementary that a corporation is to be deemed a resident, or citizen, of the State in which it is created — its domicile of origin or creation. Clark on Corp., sec. 14. “The residence of a corporation is in the sovereignty by which it was created. It must dwell in the place of its creation and cannot migrate to another sovereignty.” • 7 Am. "and Eng. Enc., 694. This is plain enough, but when, by permission of the sovereignty of its creation, it consolidates with a corporation of another sovereignty, difficult and sometimes perplexing questions regarding its relation to the two sovereignties .arise.
The statutes and public records show that the Wilmington and Weldon Railroad Company, a' domestic corporation, has by permission of the Legislature become one of “the constituent roads” in a line of consolidated railways extending through six States. In the consolidation are a large number of other “constituent roads.” To say that each of these roads, chartered in six different States from Virginia to Alabama, have, by the consolidation, become citizens of the State of Virginia, is rather startling. If this result, so far as the Wilmington and Weldon Railroad Company is concerned, has been accomplished by virtue of the power conferred by the Act of 1899, ch. 105, in defiance of the express provision in the statute that it should continue a domestic corporation, it would indicate an absence of power in the Legislature to guard the sovereign rights of the State in respect to corporations of its own creation. It would seem perfectly clear that a railroad corporation has no power to change its domicile. While the Legislature may permit a Virginia corporation to come into this State and consolidate with one of her own corporations, we cannot perceive how, in availing itself of such permission, the Virginia corporation may take the North Carolina corporation out of
this State into Virginia and so adopt it that the State, by virtue of whose laws it came into existence .and continues to exist, loses jurisdiction, of it for the purpose of bringing it into her courts to answer for wrongs done her own citizens. While we do not concede that such would be the result of permission to consolidate, in the absence of restrictive words, certainly where,'in the statute conferring the power to consolidate, it is expressly provided that the corporation, together with any corporations with which it should consolidate, should remain a domestic corporation, it would seem that such restriction would place the question beyond controversy.
The question involved in this appeal is essentially different from that presented in
Southern Ry. Co. v. Allison,
190 U. S., 326. There the plaintiff in error was a Virginia corporation. The contention of defendant in error was that by virtue of the provisions of the statute passed by the General Assembly of this State and the act of the corporation pursuant thereto it became a domestic corporation. The Court held that by filing a copy of its charter with the Secretary of State it did not become a citizen of this State. Assuming that the defendant Atlantic Coast Line Railroad Company is a Virginia corporation, with power conferred by its charter to consolidate with the Wilmington and Weldon Railroad Company, and that, pursuant to the provisions of the act ratified 24 February, 1899, as stated in its report to the Corporation Commission, the two • corporations did consolidate, what is the status in regard to citizenship of the consolidated corporation for the purpose of jurisdiction ? It is well settled that the Legislatures of two States cannot by any joint legislation create one corporation having a domicile in each State.
Cooley, C. J.,
in
Chicago and N.
W.
Ry. Co., v. Auditor,
53 Mich., 19 (at page 91), discussing the status
of corporations chartered by different States, which have consolidated under statutory power, says: “We appreciate very fully the difficulty of determining, under all circumstances, in what light we are to regard the anomalous organizations which are formed by the consolidation of two or more corporations which have received their corporate powers from different sovereignties. * * * It is familiar law that each corporation has its existence and domicile, so far as the term can be applicable to the artificial person, within the territory creating it. It comes into existence, then, by its sovereign will; and, though it may be allowed to exercise corporate functions within another sovereignty, it is impossible to conceive of one joint act, performed simultaneously by two sovereign States, which shall bring a single corporation into being, except it be by compact or treaty. There may be separate consent given for the consolidation of corporations separately created; but when the two unite, they severally bring to the new entity the powers and privileges already possessed, .and the consolidated company simply exercises, in each jurisdiction, the powers the corporation then chartered had possessed and succeeds then to its privileges. * * * After the consolidation, each State legislates in respect to the road within its own limits, and which was constructed under its grant of power, as it did before.” The learned
Chief Justice
proceeds to say: “It also necessarily follows, from the doctrine maintained by the Federal Supreme Court in respect to the citizenship of corporations * * * where, therefore, two corporations, created in different States, consolidate, though for most purposes they are not thereafter to be separately regarded, yet, in each State, the consolidated company is deemed to stand iq the place of the corporation to which it then succeeded, and of its members, and consequently to be a citizen of that
State for many purposes, while, in tbe other State, it would stand in the place of the other corporation in respect to citizenship there.” In
Quincy Bridge Co. v. Adams
Co., 88 Ill., 615, the same question was presented.
Breese, J.,
said: “The States of Illinois and Missouri have no power to unite in passing any legislative act. It is impossible, in the very nature of their organizations, that they can do so. They cannot so fuse themselves into a single sovereignty and, as such, create a body politic which shall be a corporation of the two States without being a corporation of each State or of either State. * * * The only possible status of a company, acting under charters from two States, is that it is an association incorporated in and by each of the States, and when acting as a corporation in either of the States it acts under the authority of the State in which it is then acting, and that only, the legislation of the other State having no operation beyond its territorial limits.” Both these cases are cited with approval by
Thayer, J.,
in
Missouri Pac. Ry. Co. v. Mich.,
69 Red. Rep., 753, in which the authorities are reviewed, and it is held that: “A corporation formed by the consolidation of corporations of three different States, pursuant to the laws thereof, is, within each of such States, a corporation of that State; and the Federal courts have no jurisdiction of a suit against it by a citizen of the State on the ground of diverse citizenship.”
The conclusion to which all the authorities come, being founded upon the case of
Ohio and Miss. Railroad Co. v.
Wheeler, 1 Black (66 U. S.), 286, is thus stated by Judge Thompson in his valuable and exhaustive article on Corporations, 10 Oyc., 296: “If the consolidated corporation is sued in a State in which one of the constituent corporations is created, defendant cannot have the cause removed from the State Court to the Circuit Court of the "United States,
because within, that State the corporation is a domestic corporation, and hence a citizen of that 'State; so that both plaintiff and defendant are in theory of the law citizens of the same State.”
Muller v. Downs,
94 U. S., 444; Moon on Removal of Causes, sec. 129. The law is well stated in Black’s Dillon Rem. of Causes, sec. 102, citing
Fitzgerald v. Misso. Pac. Ry. Co.,
45 Fed., 812: “Although the consolidated corporation bears the same name in the three States, has one board of directors ,and the same shareholders, and operates the road as one entire line, and is designed to accomplish the same purposes and exercises the same general corporate powers and functions in all the States, it is not the same corporation in each of the States, but a distinct and separate entity in each. It is a corporate trinity, having no citizenship of its own, distinct from its constituent members,, but a citizenship identical with each. By the consolidation the corporation of one State did not become a corporation of another, nor was either merged in the other. The corporation of each State had a distinct legislative paternity, and the separate identity of each as a corporation of the State by which it was created, and as a citizen of that State, was not lost "by the consolidation. Nor could the consolidated company become ,a corporation of three States without being a corporation of each or of either. While the consolidated corporation is a unit, and acts as a whole in the transaction of its corporate business, it is not a corporation at large, nor is it ,a joint corporation of three States. Like all corporations, it must have a legal dwelling place. Every corporation, not created by act of Congress, dwells in a State. This consolidated corporation dwells in three States, and is a separate and single entity in each.”
Clark v. Barnard,
108 U. S., 436.
The General Assembly of this State by Act of 1899, ch.
77, ratified 13 February, 1899, chartered tbe Atlantic Coast Line Eailroad Company of Virginia. Tbe preamble of tbe act recites tbe reasons wbicb induced tbe Legislature to grant tbe charter, and in section 2 enacts: “The said Atlantic Coast Line Eailroad Company of Virginia is hereby authorized and empowered to maintain and operate tbe railroad wbicb formerly belonged to tbe Petersburg Eailroad Company in this State,” etc. It will be observed by reference to this act that tbe only purpose of granting tbe charter was to enable tbe corporation, in connection with a corporation of tbe same name created by tbe Legislature of Virginia, to operate tbe portion of tbe Petersburg Eailroad located in this State. Tbe Virginia corporation of tbe same name is not “domesticated” under tbe “Craig Act,” Laws of 1899, cb. 62, but a new corporation was created in this State. Without entering into any discussion of tbe status of a’corporation created in this way, it is sufficient to say that while tbe defendant is described in tbe complaint as the “Atlantic Coast Line Eailroad Company, of Virginia,” tbe summons is served upon tbe agent of tbe “Atlantic Coast Line Eail-road Company,” who, in verifying tbe petition, so describes himself. Tbe petition is filed by tbe “Atlantic Coast Line Eailroad Company,” and in this name tbe corporation makes its reports to tbe State Corporation Commission and is referred to in “Poor’s Manual,” 1899, p. 397, and 1902, p. 199. We do not find that tbe “Atlantic Coast Line Eail-road Company, of Virginia,” makes any report to tbe Commission. It is probably one of tbe “constituent roads” of tbe defendant “Atlantic Coast Line Eailroad Company,” although it does not so appear in tbe reports, nor is any reference made to chapter 77, Laws of 1899. We notice further that no power is conferred upon tbe corporation created by that act to consolidate, unless it be found in tbe charter of
the Petersburg Railroad Company of 1830 and chapter 149, Acts 1893, extending the charter of said corporation. It is true that the complaint alleges that the defendant corporation is a Virginia corporation, operating a railroad in this State. As we have seen, there is no statute which has been called to our attention, or which a diligent examination on our part discovers, authorizing the Atlantic Coast Line Railroad Company to operate in this State otherwise than by consolidation with domestic corporations, nor is any such claim made by the corporation in its reports to the Corporation Commission. As a matter of law, the plaintiff is in error' in averring the contrary. The question involved is of far-reaching importance to the corporation and the citizens of the State. We are of opinion that the defendant Atlantic Coast Line Railroad Company, in respect to its “constituent roads,” domestic corporations, is a domestic corporation, and that, as between the plaintiff and itself, there is no diverse citizenship entitling it to remove the cause’ into the Federal Court.
t
Affirmed.