Railway v. Stringer (32 Ohio St. 468, 1877)

Scott, J.

The plaintiff in error is a corporation created solely by the State of New York, and is therefore to be regarded as a citizen of that state. And the fact that it is operating a railroad of another corporation, part of which lies within this state,- under a lease from the receiver of the latter corporation, does not give it the character of an Ohio corporation, or affect its status as a citizen of New York. It was so held by this commission in the case of the B. & O. R. R. Co. v. Cary, 28 Ohio St. 208. And we see no reason to doubt the correctness of the views there expressed, and do not hesitate to reaffirm the doctrine of that case. Indeed, it would not be otherwise, even if the plaintiff in error were the absolute purchaser of the property and franchises which it is now operating and using as a lessee. State v. Sherman, 22 Ohio St. 411. The laws of this state which authorize foreign corporations to make contracts and transact business within their appropriate spheres of action, in this state, do not purport to create domestic corporations, but merely to permit and regulate the action within this state, of existing foreign corporations.

The plaintiff in error, then, being sued by a citizen of this state, in the Court of Common Pleas of Ashland county, had a right, as a citizen of another state (the amount in controversy being more than $500), to ask for the removal of the case into the Circuit Court of the United States. Such right is clearly conferred by the judiciary act of congress of 1789. Plaintiff in error, in due time, exercised this right, by petitioning, in due foi-m, for such removal, and complying in all respects with .the requirements of the act of congress in that behalf. The court of common pleas overruled the application for removal, on the sole ground that, by virtue of the act of the legislature of Ohio, passed March 19, 1869, the petitioner had waived its right to such removal. The statutory provision referred to is as follows: “ Provided that it shall be regarded as one of the conditions upon which a railroad company of another state may lease or purchase a railroad, the whole or any part of which is in this state, or make any arrangement for operating the same, under'the provisions of this section, that such railroad company of another- state thereby waives the right to remove any case from any of the courts of this state to any