Hammerstein v. Lyne

VAN VARKENBURGH, District Judge (after stating the facts as above). The Constitution of the United States (article 3, § 2), provides : “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 all cases affecting ambassadors, other public ministers, and consuls; to all cases of admiralty and maritime jurisdiction; to controversies to which the United States shall be a party; to controversies between two or more states; between a state and citizens of another state; between citizens of different states; between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects.” — 168 — This comprehends and limits the jurisdiction of the national courts. Defining the jurisdiction of the District Courts, the Judicial Code (chapter 2, § 24) provides: “The District Courts shall have original jurisdiction as follows: “First. Of all suits of a civil nature, at common law or in equity, brought 'by the .United States, or by any officer thereof authorized by law to sue, or between citizens of the same state claiming lands under grants from different states; or, where the matter in controversy exceeds, exclusive of interest and costs, the sum or value of three thousand dollars, and (a) arises under the Constitution or laws of the United States, or treaties made, or which shall be made, under their- authority, or (b) is between citizens of different states, or (c) is between citizens of a state and foreign states, citizens or subjects.” The jurisdiction of this court must exist, if at all, because the case at bar belongs to one of the classes named, and more specifically to “b” or “c” above described. The complainant is admitted to be a citizen of the state of New York. Then, to confer jurisdiction upon this court, in any view, the defendant must be a citizen of some other state, or she must be an alien. It is not and cannot be claimed that she is a citizen of any state other than Missouri. [1] It is first necessary to inquire -whether, upon the testimony before us, the defendant can be held to be a citizen of any state, and in determining this we must remember that the citizenship with which we are now concerned is that contemplated by the Judiciary Act. Citizenship in this country is a dual one — national and state — and the distinction between national and state citizenship has been frequently pointed out. The first section of the fourteenth article of amendment to the federal Constitution provides that: “All persons bom or naturalized in the United' States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.” Concerning the definition of citizenship therein contained, the Sur preme Court of the United States has said: “The distinction between citizenship of the United States and citizenship of a state is clearly recognized and established. Not only may a man be a citizen of the United States without being a citizen of a state, but an important element is necessary to convert the former into the latter. He must reside within the state to make him a citizen of it, but it is only necessary that he should be born or naturalized in the United States to be a citizen of the Union. It is quite clear, then, that there is a citizenship of the United States, and a citizenship of a state, which are distinct from each other, and which depend upon different characteristics or circumstances in the individual.” Slaughterhouse Oases, 16 Wall. 36, 73, 74, 21 L. Ed. 394. _ [2] In Cooper v. Galbraith, No. 3,193, 6 Fed. Cas. 473, Mr. Justice Washington said: “Citizenship, when spoken of in the Constitution in reference to the jurisdiction of the courts of the United States, means nothing more than residence. The citizens of each state are entitled to all the privileges and immunities of citizens in the several states; but to give jurisdiction to the courts of the United States, the suit must be between citizens residing in different states, or between a citizen and an alien.” — 169 — Of course, the residence here spoken of means permanent residence animo manendi. This appears from his language used in Butler v. Farnsworth, No. 2,240, 4 Fed. Cas. 902. wherein he says: “In order to give jurisdiction to tlie courts of the United States, the citizenship of the party must he founded on a change of domicile and permanent residence in the state to which he may have removed from another state. Mere residence is prima facie evidence of such change, although, when it is explained and shown to have been for temporary purposes, the presumption is destroyed.” Further discussing the question here involved, the learned Justice says: “With respect to the immunities which the rights of citizenship can confer, the citizen of one state is to be considered as a citizen of each and every other state in the Union. But the privilege of suing in the tribunals of the nation caimoi. possibly depend upon the fact of general citizenship, because, if it did. the jurisdiction of those tribunals would extend to every case where citizens were parties, since a citizen of Pennsylvania, suing a citizen of the same state, might truly allege that he is himself a citizen of any other state, and that the defendant is a citizen of the state in which the suit is brought. Or every case, in which citizens are parties, might, by the same course of argument be excluded, since, it being equally true that a citizen of new Jersey, who is plaintiff, is also a citizen of Pennsylvania, the Pennsylvania defendant might plead that the plaintiff and defendant are citizens of the same state. It is plain, therefore, that citizenship, in relation to the federal judiciary, cannot he that which, has just been referred to, but must, be of that kind which identifies the party with some particular state, of which he is a member. The theory of this provision in the Constitution is the danger of partiality in the state tribunals, where the suit is between a member of the political family, where the suit is instituted, and a stranger. Citizens, in reference to federal jurisdiction, are mentioned as in opposition to each other. It is a citizen of one state, and a citizen of another state in which the suit is brought, which can never be explained by a general citizenship, which confounds all distinction, and admits of no opposition. The only rational construction of the Constitution, in relation to federal jurisdiction, is to limit it to cases where the suit is between the resident citizens of different states, or where an alien is a party.” Still further developing this idea, Mr. Justice Story, in Case v. Clarke, No. 2,490, 5 Fed. Cas. 254, said: “To constitute a person a citizen of a state, so as to sue in the courts of the United States, he must have a domicile in such state.” In Marks v. Marks (C. C.) 75 Fed. 321, 322, the rule is thus stated: “To constitute citizenship of a state in relation to the Judiciary Act requires, first, residence within such state; and, second, an intention that such residence shall be permanent. In this sense, state citizenship means the same thing as domicile in its general acceptation. The act, of residence does not alone constitute the domicile of a parly, but it is the fact of residence, accompanied by an intention of remaining, which constitutes domicile. The distinction between domicile and mere residence may be shortly put as that between residence animo manendi and residence animo revertendi.” In Sharon v. Hill (C. C.) 26 Fed. 337, 342, it was said: “Citizenship is a status or condition, and is the result of both act and intent: * * * The residence and the intent must coexist and correspond; and although, under ordinary circumstances, the former may be sufficient evidence of the latter, it is not conclusive, and the contrary may always be shown; and when the question of citizenship turns on the intention with — 170 — which- a person has resided in a particular state, his own testimony, under ordinary circumstances, is entitled to great weight on the point.” [3] What constitutes citizenship in another state, in the sense of the Constitution and Judiciary Act, with reference to the jurisdiction of the federal courts was discussed by Circuit Justice Marshall in Prentiss v. Barton, No. 11,384, 19 Fed. Cas. 1276. He said: ' “In the sense of the Constitution and of the Judiciary Act, he who is incorporated into the body of the state, by permanent residence therein, so as to become a member of it, must be a citizen of that state, although born in another. Or, to use the phrase more familiar in the books, a citizen of the United States must be a citizen of that state in which his domicile is placed.” , He points out that state citizenship cannot depend entirely upon birth; that the rights so conferred, as respects suits in the courts of . the United States, may be changed by a change of residence. In Prentiss v. Brennan, No. 11,385, 19 Fed. Cas. 1278, Mr. Justice Nelson says: “A person may be a citizen of the United States, and not a citizen of any particular state. This is the condition of citizens residing in the District of Columbia, and in the territories of the United States, or who have taken up a residence abroad, and Others that might be mentioned. A fixed or permanent residence or domicile in a state is essential to the character of citizenship that will bring the case within the jurisdiction of the federal courts.” It is apparent that state citizenship, under our system and as used in the Constitution and Judiciary Act, is essentially different from national citizenship. The latter is defined to be the relation of allegiance and protection between individuals and their country. It is the antithesis of alienage, and involves a national right or condition. As was said in Lynch v. Clarke, 1 Sandf. Ch. (N. Y.) 583: “It pertains to the confederated sovereignty — the United States — and not to' the individual states.” A citizen of the United States owes his primary and highest allegiance-to the general government, and not to his particular state. On the other hand, state citizenship is the practical equivalent of domicile. “That place is properly the domicile of a person in which he has voluntarily fixed his abode, not for a mere special or temporary purpose, but with a present intention of making it his permanent home.” 14 Cyc. 833. Generally speaking, and especially with reference to the Judiciary Act, it must involve national citizenship. Although a state may, by its Constitution and laws, confer certain privileges of citizenship on foreign subjects, it cannot make them citizens within the meaning of this act City of Minneapolis v. Reum, 6 C. C. A. 31, 56 Fed. 576. Nevertheless, such state citizenship or domicile is not at all essential to national citizenship. [4] It would appear conclusively from the facts presented, from the uniform views expressed by the courts, and from the definitions universally accepted, that the defendant in this case has established a domicile in London, England. She lives there. She declares it to he her home, and that it is her intention to remain there indefinitely.' — 171 — Slie lias abandoned her former home in Missouri for an indefinite and uncertain period, with no present intention of returning. Her present visit is a temporary one. It is her purpose to return to England, and she would have executed that purpose before this, had it not been for the pendency of this suit. Ennis et al. v. Smith et al., 14 How. 400-423, 14 L. Ed. 472; Morris v. Gilmer, 129 U. S. 315-328, 9 Sup. Ct. 289, 32 L. Ed. 690; 14 Cyc. 833. Under such circumstances, she is not and cannot be a citizen of Missouri within the meaning of the Judiciary Act conferring jurisdiction upon the federal courts of controversies between citizens of different states. [5] Is she, then, a citizen of the United States, or is she an alien? Because, if the latter, she can be sued in this court, if found in this jurisdiction, by the complainant, who is a citizen of the state of New York. It being admitted that she is by birth a citizen of the United States, the burden is upon the complainant to show that she has renounced or otherwise abandoned or lost that citizenship. She herself asserts it. What must we conclude from the facts appearing in testimony ? There has been no act of naturalization, nor any step in that direction. If she has lost her citizenship at all, it must be through some act of expatriation. What is essential to bring about that result? It will hardly be contended that mere change of residence, even with intention never to return, can have that effect. Miller, Circuit Justice, in Lanz v. Randall, No. 8,080, 14 Fed. Cas. 1131. “In order that expatriation may be considered to have taken place, there; must be an actual removal from the country of which the individual is then a citizen or subject, made voluntarily by a. person of full age and under no disability, as the result of a fixed determination to change the domicile and permanently reside elsewhere, as well as to throw off the former allegiance and become the citizen or subject’ of a foreign power.” 14 Cyc. 145, 146. In State v. Adams, 45 Iowa, 99, 24 Am. Rep. 760, it was held that: “Mere removal from the United States and residence in a foreign country for a period of years does not operate as a withdrawal of citizenship, where it is not shown that the individual intended to or did become a foreign citizen.” See, also, Ludlam v. Ludlam, 26 N. Y. 356, 84 Am. Dec. 193. It may be conceded that a citizen may reside abroad under such circumstances as to forfeit his right to the protection of the sovereignty to which he owes or professes allegiance; hut this is not tantamount to a loss of his former citizenship, and certainly not within the meaning of the Judiciary Act. The purpose to effect this must be manifested by some unequivocal act on the part of the citizen seeking or suffering expatriation. Comitis v. Parkerson (C. C.) 56 Fed. 557, 22 L. R. A. 148. We have seen that citizens and subjects of one country may acquire a domicile in a foreign country without such forfeiture. There has been in this case no such act, coupled with intention, as would operate to convert this defendant into an alien within the meaning of the law now under consideration. It follows that, inasmuch as Miss Lyne is neither a citizen of a state, nor an alien, within the meaning of the Judiciary Act, this court — 172 — is without original jurisdiction to entertain this action. That this may have the practical effect of denying complainant the right to litigate the differences between himself and the defendant in any federal court cannot alter the situation. “As has been so often said by the Supreme Court, construing the present Judiciary Act, ‘the whole purport and effect of that act was not to enlarge, but to restrict and distribute, jurisdiction.’ Shaw v. Mining Co., 145 U. S. 444 [12 Sup. Ct. 935, 36 L. Ed. 768]. And, as said before, Congress under constitutional power created all federal courts inferior to the Supreme Court, and conferred on such courts their jurisdiction and power. Within the constitutional limitation it may grant the exercise to such courts of just so much or so little judicial power as in its wisdom it may deem fit.” Mahopoulus v. Chicago, R. I. & P. Ry. Co. (C. C.) 167 Fed. 172. It will not be urged that citizens of the United States have the right to prosecute actions against other citizens in any jurisdiction they may find convenient. If Miss Lyne were conceded to be a citizen of Missouri, and, studiously avoiding either New York or Missouri, had elected to give concerts in'Chicago, in the Northern district of Illinois, would it be contended that, because of diverse citizenship, the complainant could have invoked the jurisdiction of the federal courts in the latter district? Obviously not. This is because the federal courts, in this respect, are courts of a limited and prescribed jurisdiction. Here, inasmuch as the jurisdiction is entirely wanting, no act of the parties could operate to confer it. The conclusion here reached necessarily disposes of all other contentions of complainant made in argument and brief. The plea to the jurisdiction must be sustained; and it is so ordered.