The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1900-06-08

poration, not out of natural persons,
but out of foreign corporation that
has no natural or legal existence in
this State. This is only partially cor
rect. Whatever may be the wording
of the act. its effect, as well as its
legal intent. is to create a domestic
corporation out of the stockholders of
the foreign corporation. Perhaps il
would be better to say that it enables
the stockholders of a foreign corpor-
alton to become a domestic corpora
ton with the same capital stock and
identical powers, privileges and obi
cations.
Again, it is said that the act re-
quires a foreign corporation 10 file
it's foreign charter and bylaws; but
this is done, not as recognizing the
legal validity of such charter, but to
definitely ascertain the powers to be
conferred, which can never exceed
those permitted by the Constitution
and laws of this State. In fact as a
foreign corporation, having no legal
existence in this State. can never be
anything more than a licensee, ex
press or implied. it would seem that
it could become a domestic corpora
ton only by some form Of creation.
X X The defendant is none the
less a North Carolina corporation be-
cause Our laws permit it to use its
New York charter and bylaws simply
for the purpose Of indicating the eN-
tent of its powers acquired by virtue
of our incorporation.
Having thus decided that the act
in question does not license or pre-
tend to license. but in legal intention
and effect creates a domestic cOrpor-
alton. We come to the final question.
whether a corporation so domesticated
can remove an action into the Federal
courts solely by virtue of its prior in
corporation by some other State"
Recognizing the fact that this is
a question whose ultimate determine
ton rests with the Supreme court of
the United States. Judge Douglas, in
his opinion, says he has carefully eX-
amined the United States Reports on
the point, and he thinks they are en-
tirelv consistent the opinion rendered.
He quotes Memphis r. Co. VS.. Ala
bama. 1O7 U. S., 5S1, and adds: 1T
is rare that a precedent so exactly
fits that the case under consideration
can be decided by the adoption of
single sentence from the opinion of
he cited case with a mere change of
names. Has that case been over-ruled
or modified? Not so far as we can
see. certainly not in express terms nor
by necessary implication in any case
that has been cited to us or that we
have been able to find. On the con
trary it has been expressly cited with
approval in numerous eases" Y
A number of other leading cases to
the same effect are quoted and com
mented upon at length, and Judge
Dauglas concludes as follows:
They are many other cases Sus-
tanning the position we have taken,
but those above cited are so carefully
considered and ably written, with
such full citations of authority, that
further elaboration by MS seems use
less.
eve are Of the opinion that as the
defendant has become domestic cor
poration of the State of North Caro-
lima, and in contemplation of law a
citizen thereof. and as the plaintiff
has sued the defendant as a North
Carolina corporation upon cause of
action which diSclOSeS no Federal
question whatever. the case cannot
be removed into the Circuit court Of
the United States. Therefore the
Judgment OF the court below is af-
firmed.