# In re Hohorst/Opinion of the Court

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* Case Syllabus
* Opinion of the Court
United States Supreme Court
150 U.S. 653
In re Hohorst
By the constitution of the United States (article 3, § 2) the judicial power shall extend to all cases, in law and equity, arising under this constitution, the laws of the United States, and treaties made, or which shall be made, under their authority; to controversies to which the United States shall be a party; to controversies between citizens of different states; between citizens of the same state claiming and between citizens of a state and states; and between citizens of a state and foreign states, citizens, or subjects.
By the act of March 3, 1887, (chapter 373, § 1), as corrected by the act of August 13, 1888, (chapter 866,) 'the circuit courts of the United States shall have original cognizance, concurrent with the courts of the several states, of all suits of a civil nature, at common law or in equity, where the matter in dispute exceeds, exclusive of interest and costs, the sum or value of two thousand dollars, and arising under the constitution or laws of the United States, or treaties made, or which shall be made, under their authority, or in which controversy the United States are plaintiffs or petitioners, or in which there shall be a controversy between citizens of different states,' 'or a controversy between citizens of the same state claiming lands under grants of different states, or a controversy between citizens of a state and foreign states, citizens or subjects.' 24 Stat. 552; 25 Stat. 434.
The intention of congress is manifest, at least as to cases of which the courts of the several states have concurrent jurisdiction, and which involve a certain amount or value, to vest in the circuit courts of the United States full and effectual jurisdiction, as contemplated by the constitution, over each of the classes of controversies above mentioned; and (what particularly concerns the case at bar) congress, following the very words of the constitution, has here vested in those courts jurisdiction of controversies 'between citizens of a state and foreign states, citizens or subjects.'
The question then arises how far the jurisdiction thus conferred over this last class or subject, is affected by the subsequent by a citizen of a state against a foreign citizen or subject, is affected by the susequent provisions of the same section, by which, after other regulations of the jurisdiction of the circuit courts and district courts of the United States, it is enacted that 'no civil suit shall be brought before either of said courts against any person by any original process or proceeding in any other district than that whereof he is an inhabitant; but, where the jurisdiction is founded only on the fact that the action is between citizens of different states, suit shall be brought only in the district of the residence of either the plaintiff or the defendant.'
Of these two provisions, the latter relates only to suits between citizens of different states of the Union, and is therefore manifestly inapplicable to a suit brought by a citizen of one of these states against an alien; and the former of the two provisions cannot reasonably be construed to apply to such a suit.
The words of that provision as it now stands upon the statute book are that 'no civil suit shall be brought before either of said courts against any person by any original process or proceeding in any other district than that whereof he is an inhabitant.' These words evidently look to those persons, and those persons only, who are inhabitants of some district within the United States. Their object is to distribute among the particular districts the general jurisdiction fully and clearly granted in the earlier part of the same section; and not to wholly annul or defeat that jurisdiction over any case comprehended in the grant. To construe the provision as applicable to all suits between a citizen and an alien would leave the courts of the United States open to aliens against citizens, and close them to citizens against aliens. Such a construction is not required by the language of the provision, and would be inconsistent with the general intent of the section as a whole.
This view is confirmed by a consideration of the earlier statutes upon this subject, which, although repealed, may properly be referred to in aid of the construction of existing laws. Ex parte Crow Dog, 109 U.S. 556, 561, 3 Sup. Ct. 396; Viterbo v. Friedlander, 120 U.S. 707, 725, 726, 7 Sup. Ct. 962. The corresponding provision, as originally enacted in the judiciary act of September 24, 1789, (chapter 20, § 11,) continued in force for the greater part of a century, and retained in the Revised Statutes, applied only to inhabitants of the United States; for its words were that no civil suit should be brought 'against an inhabitant of the United States by any original process in any other district than that whereof he is an inhabitant, or in which he shall be found at the time of serving the writ.' 1 Stat. 79; Rev. St. § 739. The substitution, in the act of March 3, 1875, (chapter 137, § 1,) of the words 'against any person' for the words 'against an inhabitant of the United States,' has been assumed to be an immaterial change. 18 Stat. 470; In re Louisville Underwriters, 134 U.S. 488, 492, 10 Sup. Ct. 587; Shaw v. Mining Co., 145 U.S. 444, 448, 12 Sup. Ct. 935. But, if the act of 1875 could have been treated as extending the provision to suits against aliens, it could only be by virtue of the clause permitting defendants to be sued in the district in which they were found. That clause having been stricken out in the acts of 1887 and 1888, the provision, as it stands in these acts, must be limited by implication, as the provision in its original form was by express words to inhabitants of the United States, and it is therefore inapplicable to an alien or to a foreign corporation.
Moreover, the present suit is for an infringement of a patent for an invention, the jurisdiction of the national courts over which depends upon the subject-matter, and not upon the parties; and, by statutes in force at the time of the passage of the acts of 1887 and 1888, the courts of the nation had original jurisdiction 'exclusive of the courts of the several states,' 'of all cases arising under the patent-right or copyright laws of the United States,' without regard to the amount or value in dispute. Rev. St. § 629, cl. 9; Id. § 711, cl. 5. The section now in question at the outest speaks only of so much of the civil jurisdiction of the circuit courts of the United States as is 'concurrent with the courts of the several states,' and as concerns cases in which the matter in dispute exceeds $2,000 in amount or value. The grant to the circuit courts of the United States, in this section, of jurisdiction over a class of cases described generally as 'arising under the constitution and laws of the United States,' does not affect the jurisdiction granted by earlier statutes to any court of the United States over specified cases of that class. If the clause of this section defining the district in which suit shall be brought is applicable to patent cases, the clause limiting the jurisdiction to matters of a certain amount or value must be held to be equally applicable, with the result that no court of the country, national or state, would have jurisdiction of patent suits involving a less amount or value. It is impossible to adopt a construction which necessarily leads to such a result. U.S. v. Mooney, 116 U.S. 104, 107, 6 Sup. Ct. 304; Miller-Magee Co. v. Carpenter, 34 Fed. 433.
It was contended in behalf of the company that this case was governed by the recent decisions of this court in Shaw v. Mining Co., 145 U.S. 444, 12 Sup. Ct. 935, and Southern Pac. Co. v. Denton, 146 U.S. 202, 13 Sup. Ct. 44. But those decisions went no further than to hold that within the meaning of the judiciary acts a corporation cannot be considered a citizen, an inhabitant, or a resident of a state in which it has not been incorporated; and that under the act of 1888 a corporation incorporated in one of the United States, and in that state only, cannot be compelled to answer in another state in which it has a usual place of business, and of which the plaintiff is not a citizen. In the first of those cases it was observed that the question what might be the rule in suits against an alien or a foreign corporation was not before the court, and might be governed by different considerations. 145 U.S. 453, 12 Sup. Ct. 935.
Upon deliberate advisement, and for the reasons above stated, we are of opinion that the provision of the existing statute, which prohibits suit to be brought against any person 'in any other district than that whereof he is an inhabitant,' is inapplicable to an alien or a foreign corporation sued here, and especially in a suit for the infringement of a patent right; and that, consequently, such a person or corporation may be sued by a citizen of a state of the Union in any district in which valid service can be made upon the defendant. In re Louisville Underwriters, 134 U.S. 488, 10 Sup. Ct. 587.
The question, then, whether the Hamburg-American Packet Company was bound to answer to the suit brought by this petitioner against it depended upon the question whether Henry R. Kunhardt, Sr., upon whom the subpoena was served, was such an agent of the company that service upon him as its agent was sufficient service upon the company.
The marshal's return upon the subpoena states that the service thereof upon the company was made by serving it upon said Kunhardt, 'general agent for said company.' This return, of course, is not conclusive of that fact. But upon the affidavits filed by the company, giving them the utmost effect in its favor, the real state of facts was as follows: There is no room for suggesting that there was within the district any director or other officer of the company, or any agent expressly authorized to accept service upon it. The company's docks, where its steamships land and take and discharge cargo, and its office for the transaction of matters immediately connected with its actual industrial operations in this country, were in the state of New Jersey, and under the charge of a superintendent employed and paid by the corporation for the purpose, and not a member of the firm of Kunhardt & Co. But the usual monetary and financial transactions of the corporation were transacted by that firm, as agents of the corporation, at the office of the firm in the city of New York, which had been advertised by the corporation as its own office.
The firm of Kunhardt & Co. being the financial agents of the corporation, the office of the firm being in the city of New York, and being the office of the corporation for the transaction of its monetary and financial business in this country, the service of the subpoena in New York upon the head of the firm as general agent of the corporation was a sufficient service upon the corporation. St. Clair v. Cox, 106 U.S. 350, 359, 1 Sup. Ct. 354; Societe Fonciere v. Milliken, 135 U.S. 304, 10 Sup. Ct. 823; Railroad Co. v. Pinkney, 149 U.S. 194, 13 Sup. Ct. 859; Code Civil Proc. N. Y. § 432; Tuchband v. Railroad Co., 115 N. Y. 437, 22 N. E. 360.
The Hamburg-American Packet Company being liable to this suit in the circuit court of the United States for the southern district of New York if duly served with process in the district, and having been so served, and the order of that court dismissing the suit as against the corporation not being reviewable on appeal at this stage of the case, there can be no doubt that mandamus lies to compel the circuit court to take jurisdiction of the suit as against the corporation. Railroad Co. v. Wiswall, 23 Wall. 507; Ex parte Schollenberger, 96 U.S. 369; In re Pennsylvania Co, 137 U.S. 451, 452, 11 Sup. Ct. 141.
The order of the circuit court dismissing the bill as against the corporation was made on April 11, 1889. Six weeks afterwards the plaintiff appealed from that order, and his appeal was entered in this court on the first day of October term, 1889. The appellee might, at that or any subsequent term, under rule 6, have made and submitted on briefs a motion to dismiss that appeal; but never did so before the case was called for argument in the regular order of the docket on March 13, 1893. The delay in disposing of that appeal, therefore, was less owing to the plaintiff than to the defendant. The appeal was dismissed for want of jurisdiction on March 27, 1893; and within five weeks afterwards the plaintiff presented his application for leave to file this petition for a writ of mandamus, and obtained a rule to show cause, returnable at the present term. There is no ground, therefore, for imputing to him such laches as should deprive him of this remedy.
These reasons being conclusive in favor of issuing a writ of mandamus to the circuit court to set aside the order of dismissal, and to take jurisdiction of the bill as against the defendant corporation, even if the appearance in its behalf in that court had been only a special appearance for the purpose of moving to dismiss the bill for want of jurisdiction, it is unnecessary to consider whether, under the circumstances of the case, the corporation was rightly allowed to amend its general appearance into a special appearance, or whether the action of the circuit court in that respect could be controlled by writ of mandamus.
Writ of mandamus to issue.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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