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Railroad Company v. Harris, 79 U.S. 12 Wall. 65 65 (1870)

Railroad Company v. Harris

79 U.S. (12 Wall.) 65


1. Where a Maryland railroad corporation whose charter contemplated the extension of the road beyond the limits of Maryland was allowed by act of the Legislature of Virginia -- reenacting the Maryland charter in words -- to continue its road through that State and was also allowed by act of Congress to extend into the District of Columbia, a lateral road in connection with the road through Maryland and Virginia, held (the unity of the road being unchanged in name, locality, election and power of officers, mode of declaring dividends, and doing all its business)

First. That no new corporations were created either in the District or in Virginia, but only that the old one was exercising its faculties in them with their permission, and that, as related to responsibility for damages, there was a unity of ownership throughout.

Second. That in view of such unity, the corporation was amenable to the courts of the District for injuries done in Virginia on its road.

Third. That this responsibility was not changed by a traveler's receiving tickets in "coupons" or different parts, announcing that "Responsibility for safety of person or loss of baggage on each portion of the route is confined to the proprietors of that portion alone."

2. The principle of pleading that a demurrer, after several pleadings, reaches back to a defective declaration has no application where the defect is one of form simply.

Page 79 U. S. 66

3. A plea in bar waives all pleas in abatement.

4. A defective declaration may be cured by sufficient averments in a replication demurred to.

On the 28th February, 1827, the State of Maryland incorporated a company known as the Baltimore & Ohio Railroad Company. It was, of course, a Maryland corporation, with capacity to sue and be sued, to take and condemn lands, subject to certain restrictions, and with the ordinary powers, rights, and privileges of corporations in that State and elsewhere. The place where the board of directors was to meet was Baltimore. There its dividends from the company's earnings were to be declared, and there was to be the seat of its government generally. It had power to make lateral roads. But the principal and declared purpose of the charter of the company, a purpose indicated by the company's name, was "the construction of a railroad from the City of Baltimore to some suitable point on the Ohio River" -- a matter to do which, in a line at all direct, it was necessary to have some action of the Legislature of Virginia. Accordingly the Legislature of Virginia, within eight days after the Legislature of Maryland had passed its act of incorporation, passed an act to "confirm" the same. The Virginia act reads thus:

"Whereas, an act has passed the Legislature of Maryland, entitled 'An act to incorporate the Baltimore & Ohio Railroad Company, in the following words and figures,' viz.: (setting out the Maryland acts). Therefore be it enacted by the General Assembly that the same rights and privileges shall be and are hereby granted to the aforesaid company, within the territory of Virginia as are granted to them within the territory of Maryland. The said company shall be subject to the same pains, penalties, and obligations as are imposed by said act, and the same rights, privileges, and immunities which are reserved to the State of Maryland or to the citizens thereof are hereby reserved to the State of Virginia and her citizens, except as to making lateral roads, and that the road shall not strike the

Page 79 U. S. 67

Ohio at a point below the mouth of the Little Kanawha; that the words 'other property' in the 17th section of the Maryland act shall not be construed to extend to any property other than materials necessary for the road, works, and buildings, and that in procuring land and materials for the road, they shall pursue the course pointed out by the Virginia laws."

Under these acts, a railroad was accordingly made between Baltimore and the Ohio River.

Subsequently to this date -- that is to say, on the 22d February, 1831, the Legislature of Maryland gave the company authority to build a lateral road from the main road between Baltimore to the Ohio, to the line of the District of Columbia. In immediate sequence, Congress passed a law by which a connection with the Capital was opened through the District. The act of Congress, which was approved March 2, 1831, entitled "An act to authorize the extension, construction, and use of a lateral branch of the Baltimore & Ohio Railroad, into and within the District of Columbia," ran thus:

"Whereas it is represented to this present Congress that the Baltimore & Ohio Railroad Company, incorporated by the General Assembly of the State of Maryland, by an act passed the 28th day of February, 1827, are desirous under the powers which they claim to be vested in them by virtue of the provisions of the before-mentioned act, to construct a lateral branch from the said Baltimore & Ohio Railroad to the District of Columbia, therefore,"

"Be it enacted &c. that the Baltimore & Ohio Railroad Company, incorporated by the said act of the General Assembly of the State of Maryland, shall be, and they are hereby authorized to extend into and within the District of Columbia, a lateral railroad such as the said company shall construct or cause to be constructed in a direction towards the said District in connection with the road they have located and are constructing from the City of Baltimore to the Ohio River in pursuance of said act of incorporation. And the said Baltimore & Ohio Railroad Company are hereby authorized to exercise the same powers, rights, and privileges, and shall be subject to the same restrictions in the construction and extension of the said lateral

Page 79 U. S. 68

road into and within the said District as they may exercise or be subject to under or by virtue of the said act of incorporation in the extension and construction of any railroad within the State of Maryland, and shall be entitled to the same rights, benefits, and immunities in the use of said road and in regard thereto as are provided in the said charter, except the right to construct any lateral road or roads in said District from said lateral road."

A supplementary act of the Legislature of Maryland, passed March 14, 1832, provided that the stock issued by the company to complete this lateral road "shall, united, form the capital upon which the net profits derived from the use of said road shall be apportioned."

Under this act of Congress and the act of Maryland authorizing a lateral road, a road was made from Washington to a point on the main road called the Washington Junction, not far from Baltimore, and so a complete road by rail opened from Washington to the Ohio River. At this point, the Baltimore & Ohio Railroad terminated. From Belair, in Ohio, opposite this point of termination, began another road (the Ohio Central), running to Columbus. While, however, the road from Washington to the Ohio River was thus made up of two parts, one from Washington to the Junction and one from the Junction to the Ohio River, each part, as the reader will have observed, was made in virtue of two different enactments -- the former, from Washington to the Junction, by the act of Congress and the act of Maryland; the latter, or main branch, by the act of Maryland and the act of Virginia.

In this state of things, one Harris bought, at an office which the Baltimore & Ohio Railroad Company had established in Washington, a ticket with which to go to Columbus, Ohio. This ticket was made up of three coupons, one for travel between Washington City and the Washington Junction; another for travel between Washington Junction and the Ohio River, over the line of the Baltimore & Ohio Railroad; and the third and last, for travel from Belair, in Ohio, opposite the terminus of the Baltimore & Ohio Railroad, to Columbus, in Ohio, over the line of the Central

Page 79 U. S. 69

Ohio Railroad, already mentioned as confessedly disconnected with the Baltimore & Ohio one except in the matter of running junction. [Footnote 1]

Over the first coupon was a memorandum thus:

"Responsibility for safety of person or loss of baggage on each portion of the route is confined to the proprietors of that portion alone."

And each coupon had printed on it:


While traveling on the Baltimore & Ohio Railroad, at Mannington, in the State of Virginia, Harris was severely injured by a collision between the train in which he was so traveling and another train of the Baltimore & Ohio Railroad Company. He accordingly brought suit against the railroad in the Supreme Court of the District of Columbia for the injury he had suffered. The writ was served on the president of the Baltimore & Ohio Railroad Company. At the time that the writ was thus served, there was no act of Congress authorizing suits against foreign corporations doing business in the District. Some time afterwards -- that is to say, on the 22d of February, 1867, [Footnote 2] Congress enacted:

"That in actions against foreign corporations doing business in the District of Columbia, all process may be served on the agent of such corporation or person conducting its business aforesaid, or in case he is absent and cannot be found, by leaving a copy thereof at the principal place of business of, in the District, and such service shall be effectual to bring the corporation before the court."

The declaration was against the company, describing it not as a citizen, or resident, or inhabitant of the District, or of

Page 79 U. S. 70

any State, but as

"a corporation duly and legally established by law, having and professing a legal and recognized existence, within the limits of the District of Columbia, and exercising therein corporate powers, rights, and privileges, in the making of the contracts, receiving freight and passengers, for transportation in and along their said railroad, from the City of Washington to the Ohio River,"

and it relied on the purchase of the ticket, and a contract in virtue thereof, to carry the plaintiff safely to the Ohio River, and the breach of the contract in what had occurred.

The company pleaded in abatement,

1st. That the company was not an inhabitant of the District of Columbia when the writ was served.

2d. That the company was not found in the District of Columbia when the writ was served.

The view of the company in their pleas apparently was that no new corporation had been created by the act of Congress of 1831 within the District, and so made an inhabitant of it; that the old corporation, by virtue of that act, did not become such an inhabitant or found within the District, and that the court in which the action was brought had succeeded but to the jurisdiction of the circuit court of the District; a court in regard to whose jurisdiction it was provided by the 6th section of an Act of February 27, 1801, [Footnote 3] identical, so far as this suit was concerned, with the 11th section of the Judiciary Act of 1789:

"That no action or suit shall be brought before said court by any original process against any person who shall not be an inhabitant of or found within said District at the time of serving the writ."

To the first of the above-mentioned pleas Harris replied that the company was an inhabitant of the District of Columbia by virtue of the act of Congress already mentioned, the date and title of which he set forth, and that they had accepted its provisions, and constructed their roads under the

Page 79 U. S. 71

act, availing themselves of the privileges thus conferred and doing business under it in the District of Columbia.

To the second, that the company was found within the District of Columbia when the writ was served and was within the jurisdiction of the court by virtue of the acts of Congress mentioned in the first replication, and that due and legal service of the writ was made upon the person of the president within the District, &c.

The company demurred to these replications, adding to the demurrer an admission of the service on the president but denying that such service was a legal service or service on the company. The demurrers were overruled. The company thereupon filed the general issue of Not Guilty. Upon the trial, the counsel of the company asked the court to instruct the jury that upon the evidence before them, the plaintiff could not recover.

The court refused to give the instruction, and the jury having found $8,250 damages for the plaintiff, the company brought the case here.

It was argued at the last term, when a reargument was directed upon one of the points raised in the first argument, to-wit:

"Whether the acts of Congress and the statutes of West Virginia relating to the Baltimore & Ohio Railroad Company created a new and distinct corporation under that name in the said state and District of Columbia, respectively, or whether they are only enabling acts, as respected the corporation under that name, created by the State of Maryland. "

Page 79 U. S. 77

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