In the Act of March 3, 1887, c. 373, § 1, as corrected by
the Act of August 13, 1885, c. 866, giving the circuit courts of
the United States original jurisdiction, "concurrent with the
courts of the several states," of all suits of a civil nature in
which the matter in dispute exceeds $2,000 in amount or value
"arising under the Constitution or laws of the United States" or in
which there is "a controversy between citizens of a state and
foreign states, citizens or subjects," the provision that "no civil
suit shall be brought against any person by any original process or
proceeding 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 such a person or corporation
Page 150 U. S. 654
may be sued by a citizen of a the Union in any district in which
valid service can be made upon the defendant.
It is a sufficient service of a subpoena upon a foreign
steamship company which has within the district no officer and no
agent expressly authorized to accept service to serve it upon its
financial agent at his office at which the financial and monetary
business of the company in this country is transacted, and which
has been advertised by the company as its own office, although the
docks of the company, where its steamships land and take and
discharge cargo, and its office for the transaction of matters
connected with its actual industrial operations in this country are
in another district.
If a suit brought in the circuit court of the United States
against a foreign corporation and against individuals is
erroneously dismissed as against the corporation for want of
jurisdiction thereof, mandamus lies to compel that court to take
jurisdiction of the suit as against the corporation. And when an
appeal, taken by the plaintiff to this Court within six weeks from
the order of dismissal, remains upon the docket, without any motion
by the appellee to dismiss it, until the case is reached for
argument, and is then dismissed by the Court for want of
jurisdiction, and the plaintiff, within five weeks afterward,
applies for a writ of mandamus, there is no such laches as should
deprive him of this remedy.
This was a petition for a writ of mandamus to the judges of the
Circuit Court of the United States for the Southern District of New
York to command them to take jurisdiction and proceed against the
Hamburg-American Packet Company upon a bill in equity filed in that
court on September 15, 1888, by the petitioner, described in the
bill as of the City of New York, and a citizen of the State of New
York, against
"the Hamburg-American Packet Company, a corporation organized
and existing under the laws of the Kingdom of Hanover, Empire of
Germany, and doing business in the City of New York; Henry R.
Kunhardt, Sr., Henry R. Kunhardt, Jr., George H. Diehl, citizens of
the United States, and residents of the State of New York, and
Arend Behrens and William Koester, citizens of the United States,
and residents of the State of New Jersey,"
for the infringement by all the defendants of letters patent
granted by the United States to the plaintiff for an improvement in
slings for packages. Upon that bill the, following proceedings took
place:
A subpoena was issued addressed to all the defendants, and was
served on September 17, 1888, as stated in the marshal's
Page 150 U. S. 655
return thereon,
"upon the within-named defendant Henry R. Kunhardt, Sr., by
exhibiting to him the within original, and at the same time leaving
with him a copy thereof,"
and
"upon the within-named defendant Hamburg-American Packet
Company, by exhibiting to Henry R. Kunhardt, Sr., general agent for
said company, the within original, and at the same time leaving
with him a copy thereof."
On November 5, 1888, the return day of the subpoena, a general
appearance for all the defendants was entered by a solicitor.
On December 18, 1888, the company, "by Kunhardt & Co.,
agents," filed a demurrer to the bill for multifariousness, for
want of equity, "and for divers other good causes of demurrer
appearing in the said bill of complaint" and not otherwise
specified, and supported the demurrer by the affidavit of Behrens
that he was an agent of the company, that the demurrer was not
interposed for delay, and that he was duly authorized to make the
affidavit in behalf of the company.
On December 24, 1888, the plaintiff moved for leave to amend his
bill by alleging that the defendants jointly infringed his patent,
and
"that all of the defendants above named are inhabitants of the
City and County of New York; that the defendant the
Hamburg-American Packet Company has its principal business office
in this country located in the City and County of New York; that
the defendants Henry R. Kunhardt, Sr., Henry R. Kunhardt, Jr.,
George H. Diehl, Arend Behrens, and William Koester are, and during
the time of the infringement above set forth were, co-partners
under the firm name of Kunhardt & Company, and as such
co-partners are and were the agents and managers of the business of
the Hamburg-American Packet Company in this country, and have their
principal business office as such located in the city and County of
New York, and that the said infringements were committed in the
prosecution of such business, and all the defendants have
cooperated and participated in all the said acts and
infringements."
An affidavit of Behrens, filed in opposition to this motion,
contained the following statements:
"I do not regard it as
Page 150 U. S. 656
true that the Hamburg-American Packet Company has its principal
business office in this country located in the City and County of
New York. The actual facts are that the said company has its docks,
where all its steamers land and take and discharge cargo, situated
in the State of New Jersey. There also is the office of the company
for the transaction of the matters immediately connected with all
its actual industrial operations in this country. Said company
advertises that it has an office in the City of New York, which is
the office of the firm of Kunhardt & Co., is rented by Kunhardt
& Co., and entirely under their control. It is in fact the
office of Kunhardt & Co., agents for the Hamburg-American
Packet Company, and in said office of Kunhardt & Co., and by
Kunhardt & Co. as agents, the usual monetary and financial
transactions of said Hamburg-American Packet Company are conducted.
All the actual physical business of said Hamburg-American Packet
Company within the United States, however, is conducted within the
State of New Jersey, as aforesaid. It is not true that Kunhardt
& Co. have, jointly with said Hamburg-American Packet Company,
infringed the letters patent set forth in the bill of complaint.
All operations of loading and unloading the cargo from the said
Hamburg-American Packet Company's vessels in this country are
performed in New Jersey as aforesaid, under the immediate direction
and control of a superintendent especially employed and appointed
by the Hamburg-American Packet Company for that purpose, and whose
salary or compensation is paid by said company, and with the
direction and details of whose supervision of said loading and
unloading the firm of Kunhardt & Co. have no concern and
exercise no control."
On January 7, 1889, the company moved to dismiss the bill for
want of jurisdiction.
On January 11, 1889, the motion to amend and the motion to
dismiss were heard together, and the court denied the motion to
dismiss, "but without prejudice to any subsequent demurrer, plea,
answer, or motion to dismiss, because of lack of jurisdiction,"
gave the plaintiff leave to amend the bill, as prayed for,
nunc
pro tunc as of the time when it was filed,
Page 150 U. S. 657
and gave the defendants leave to answer, plead, or demur to the
bill, as amended, on or before the first Monday of March. On
February 2, 1889, the plaintiff filed a bill so amended.
On February 16, 1889, the company served on the plaintiff notice
of hearing upon the bill and demurrer.
On February 21, 1889, the company moved for leave to amend its
general appearance into to a special appearance for the specific
and only purpose of moving to set aside the service of the subpoena
upon it through its alleged agent Henry R. Kunhardt, Sr., and to
dismiss the bill as against it for want of jurisdiction, and also
moved to set aside the service and to dismiss the bill as against
it, "because of lack of jurisdiction of this Court over the person
of said defendant."
An affidavit of Richard John Cortis, filed in support of this
motion, stated that for several years, he had been well acquainted
with the details of the organization and residence and general
business of the company; that its principal offices and place of
business were, and always had been at the City of Hamburg, in the
Empire of Germany, and the residences of all its directors and
stockholders were within the territorial limits of that empire, and
that it had never had an office in the City of New York or at any
place within the Southern District of New York.
On April 5, 1889, the court ordered that this motion be granted
unless the plaintiff should, within five days, file a stipulation
to withdraw the amended bill as to the company, and to go to trial
as to the company upon the original bill. 38 F. 273. No such
stipulation having been filed, on April 11, 1889, the court ordered
that the appearance be amended as moved for; that the service of
the subpoena upon the company be set aside and quashed, and that
the bill be dismissed as against the company.
From that order the plaintiff, on May 23, 1889, took an appeal,
which was entered in this Court on October 8, 1889, argued on March
13, 1893, and dismissed on March 27, 1893, for want of
jurisdiction, because that order, not disposing of the case as to
all the defendants, was not a final decree, from which an appeal
would lie.
148 U. S. 148 U.S.
262.
Page 150 U. S. 658
On May 1, 1893, an application was made to this Court for leave
to file the present petition, praying for a writ of mandamus to the
judges of the circuit court to take jurisdiction and proceed
against the company in the suit aforesaid, and to strike from the
record the order of April 11, 1889, and to make such disposition of
the suit as ought to have been made had that order not been made,
and for such other relief in the premises as might be just.
On May 10, 1893, this Court gave leave to file the petition, and
granted a rule to show cause, returnable at this term. On October
17, a return was filed setting forth the foregoing proceedings of
the circuit court and stating that the order of April 11, 1889, was
made upon the following grounds:
1st. That it was made to appear, and the circuit court found,
that the company had originally made a general, instead of a
special, appearance in the suit, because of a justifiable mistake
on its part as to the nature of the suit, caused by the plaintiff's
own allegations in the original bill.
2d. That it appeared by the affidavits and other proceedings set
forth in the record that the company is a corporation organized and
existing under the laws of the Kingdom of Hanover, Empire of
Germany, and is not, and was not at the time of the service of the
subpoena upon Henry R. Kunhardt, Sr., an inhabitant of the Southern
District of New York.
3d. That, upon the facts as presented to the circuit court and
shown by the record, it did not appear that said Kunhardt was at
any time the general agent of the company, or such an agent that
service upon him of the subpoena in the suit was sufficient to
confer jurisdiction over the company.
MR. JUSTICE GRAY, after stating the facts in the foregoing
language, delivered the opinion of the Court.
By the Constitution of the United States, Article III, Section
2, the judicial power shall extend to all cases, in law and
equity,
Page 150 U. S. 659
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, c. 373, § 1, as corrected by
the Act of August 13, 1888, c. 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 subsequent provisions of the same section, by
which, after other regulations of the jurisdiction of the circuit
courts and district courts of the United States,
Page 150 U. S. 660
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,
109 U. S. 561;
Viterbo v. Friedlander, 120 U. S. 707,
120 U. S.
725-726. The corresponding provision, as originally
enacted in the Judiciary Act of September 24, 1789, , c. 20, §
11, continued in force for the greater part of a century, and
retained in the Revised Statutes,
Page 150 U. S. 661
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.Stat. § 739. The substitution, in the Act
of March 3, 1875, c. 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,
134 U. S. 492;
Shaw v. Quincy Mining Co., 145 U.
S. 444,
145 U. S. 448.
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.Stat. § 629, cl. 9; § 711, cl. 5. The section now in
question at the outset 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
Page 150 U. S. 662
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.
United
States v. Mooney, 116 U. S. 104,
116 U. S. 107;
Miller-Magee Co. v. Carpenter, 34 F. 433.
It was contended in behalf of the company that this case was
governed by the recent decisions of this Court in
Shaw v.
Quincy Mining Co., 145 U. S. 444, and
Southern Pacific Co. v. Denton, 146 U.
S. 202. 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.
145 U. S.
453.
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.
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,
Page 150 U. S. 663
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,
106 U. S. 359;
Societe Fonciere v. Milliken, 135 U.
S. 304;
Mexican Central Railway v. Pinkney,
149 U. S. 194; New
York Code of Civil Procedure § 432;
Tuchband v. Chicago
& Alton Railroad, 115 N.Y. 437.
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
Page 150 U. S. 664
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.
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.
