
    No. 10,449.
    James P. Guinault vs. Louisville and Nashville Railroad Company.
    Under the Removal of Causes Act, the right o£ removal is determined on the face of the petition, as matter of law. The facts alleged are taken as true and can not he contested in the State Court. If disputed, their truth may he put at issue in the United States Court on a motion to remand.
    The law does not provide for verification of the application hy affidavit. Perhaps affidavit is unnecessary, hut, if otherwise, the affidavit of the attorney for a foreign corporation is sufficient.
    
      APPEAL from the Civil District Court for the Parish of Orleans. King, J.
    
    
      W. K Murphy for Plaintiff and Appellant:
    1. No corporation has a right to exercise corporate powers in tlie State of Louisiana, or operate a railroad therein, without authority from the State, and without establishing a domicil therein. Acts 1857, p. 61; R. S., p. 144, Sec._740; Act 38 Of 1877, p. 48.
    2. Answers to subpoenas duces tecum must bo made by the parties to whom they are directed, and when evasive'or not direct and responsive to the demand, will be taken as confessed. C. P. Art. 140, 473; Mills vs. Fellows, 30 An. 824; Columbia Fire Co. No. 5 vs. Purcell et als.; 25 An. 284; Murison & Co. vs. Butler, 18 An. 197, 300.
    Bayne, Denegre & Bayne for Defendant and Appellee:
    The judge of the court a qua granted the removal of the cause upon the petition, showing that defendant corporation was created under the laws of Kentucky and a citizen of that State. It does business here as other foreign corporations conformably to the Constitution (Art. 236) and laws of this State. It concedes that it was properly sued in this State. What it asks is, that being'sued hero it may avail itself of the privilege it has under an act of Congress (as a corporation of Kentucky), and remove it into another court exercising jurisdiction within the State. Railroad Company vs. Koontz, 10 U. S. p. 10; Goodletvs. Louisville and Nashville Railroad Company, 122 U. S. 391; Garrett vs. Bonner. 30 An. 1305; Penn Company vs. Railroad, 118 U. S. 295; Davis vs. Montgomery, 36 An. 874.
    The petition was verified by the affidavit of the attorneys of defendants, though such verification was not necessary. Connor vs. Scott, 4 Dillon 342; Hauser vs, Clayton, 3 Wood 273.
    All right of removal is determined upon the petition, and the question is presented as a pure question of law, and that is, whether, admitting the facts stated in the petition for removal to'be true, it appears on the face of the record which includes the petition, and pleadings, and proceedings, down to that time that the petitioner is entitled to the removal, and if so, it takes effect from the filing of tlie petition. Burlington Railway vs. Dunn, 122 U. S. 517.
   The opinion of the court was delivered by

Fenner, J.

In May last this case was before us on appeal from an order of removal to the United States Circuit Court. We then found the application for removal defective in that it did not affirmatively contradict the allegation in the original petition of plaintiff to the effect that defendant was a citizen of and domiciled in the State of Louisiana, and we, therefore, reversed the order and remanded the cause, reserving to defendant the right to remedy this defect.

Defendant thereupon filed a new petition for removal, wherein it is alleged not only that it is a citizen of Kentucky, but that it is not a citizen of Louisiana and has no domicil'therein. On this petition, the judge a quo granted a new order of removal, from which the present appeal is taken.

The fact that under the laws of this State, defendant has appointed a resident agent upon whom process may be served, does not affect the question of its domicil and citizenship. We considered and" determined this point very recently in the case of Barber Asphalt Co. vs. City, not reported.

The same point as applicable to the Removal of Causes has been repeatedly adjudicated by the Federal Supreme Court. R. R. Co. vs. Koontz, 104 U. S., p. 10; Goodlett vs. R. R. Co. 122 U. S., p. 391.

The right of removal is determined on the face of the application, as matter of law. The facts alleged must be accepted, pro hao vice, as true They can not be contested in the State Court. If they are disputed, the United States Court, to which the cause is removed, is the proper forum to settle the controversy, where the truth of the facts may be put at issue on a motion to remand. Burlington vs. Dunn, 122 U. S. 517.

The application and bond complied with all requirements of the law, and the judge a quo performed his simple duty in granting the order of removal.

The objection that the petition for removal is only verified by the affidavit of counsel has no force. The law does not provide specifically for any verification by affidavit; and if affidavit be essential, in absence of any provision to the contrary, the authority of the attorney to make it would be presumed and held sufficient.

Judgment affirmed.  