We are not concerned with the justice * * * of such legislation." To the same effect may be cited, Hoffman v. State of Missouri, 274 U.S. 21, 47 S.Ct. 485, 71 L.Ed. 905; Denver R.G.R. Co. v. Terte, 284 U.S. 284, 52 S.Ct. 152, 76 L.Ed. 295; Southern Railway Co. v. Cochran (C.C.A.) 56 F.2d 1019; Hoch v. Byram, 180 Minn. 298, 230 N.W. 823; Wolf v. Chicago, M., St. P. Ry. Co., 180 Minn. 310, 230 N.W. 826; and Wood v. Delaware H.R. Corporation (C.C.A.) 63 F.2d 235, all going to the same point and leading to the conclusion that such burden, if any, is for the consideration of Congress and not for the courts. It is granted, of course, that a state may not impose an unreasonable burden upon interstate commerce; but it must also be granted that Congress has the power to regulate and control interstate commerce, and a burden imposed by a federal statute must stand upon an entirely different basis.
Therefore, the anti-trust and the employers' liability acts, having substantially identical provisions as to venue, cannot be distinguished in principle. Baltimore Ohio R. Co. v. Kepner, 314 U.S. 44, 62 S.Ct. 6, 86 L.Ed. 28, 136 A.L.R. 1222; Miles v. Illinois Central R. Co., 315 U.S. 698, 62 S.Ct. 827, 86 L.Ed. 1129, 146 A.L.R. 1104; Trapp v. Baltimore Ohio R. Co., D.C., 283 F. 655; Schendel v. McGee, 8 Cir., 300 F. 273; Norris v. Illinois Central R. Co., D.C., 18 F.2d 584; Beem v. Illinois Central R. Co., D.C., 55 F.2d 708; Wood v. Delaware Hudson R. Corp., 2 Cir., 63 F.2d 235; Chesapeake Ohio R. Co. v. Vigor, 6 Cir., 90 F.2d 7, certiorari denied 302 U.S. 705, 58 S.Ct. 25, 82 L.Ed. 545; Baltimore Ohio R. Co. v. Clem, D.C., 36 F. Supp. 703; Sacco v. Baltimore Ohio R. Co., D.C., 56 F. Supp. 959. Ex parte Schollenberger, 96 U.S. 369, 24 L.Ed. 853; International Shoe Co. v. State of Washington, et al., 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95, 161 A.L.R. 1057; Mississippi Publishing Corporation v. Murphree, 326 U.S. 438, 66 S.Ct. 242, 90 L.Ed. 185.
It is well established that the residence of a domestic corporation is at the location of its principal office unless a statute directs otherwise. Fairbanks Steam Shovel Co. v. Wills, 1916, 240 U.S. 642, 36 S.Ct. 466, 60 L.Ed. 841; Wood v. Delaware H.R. Corp., 2 Cir., 1933, 63 F.2d 235; State ex rel. Stanton v. Zangerle, 117 Ohio St. 436, 159 N.E. 823. In Massachusetts, as in many other states, a domestic corporation is required to state in its Articles of Agreement the location of its principal office.
They do not proceed under the Employers' Liability Act in their discretion, but by positive requirement. Wood v. Delaware H.R. Corp., 2 Cir., 63 F.2d 235; Southern R. Co. v. Cochran, 6 Cir., 56 F.2d 1019; Schendel v. McGee, 8 Cir., 300 F. 273, 279 (where we said, in a companion case to Chicago, M. St. P. Railroad Co. v. Schendel, previously discussed, "It being the law, it is a court's duty, where there is jurisdiction, to take and retain that jurisdiction and try the case.")
Christian v. Boston Maine R.R., 2 Cir., 109 F.2d 103. Since the defendant's railroad does not run into the territory constituting the Southern District of New York, though it maintains executive offices in that District, it insists that the court was without jurisdiction and asks a reconsideration of the same question decided adversely to it in Wood v. Delaware H.R.R. Corp., 2 Cir., 63 F.2d 235. We decline to do that, however, and adhere to our former decision.
Adding N W as a party plaintiff did not make the alleged defect more serious — its joinder did not "render the venue of the action improper" within the language of the Rule. While it has been generally held that a corporation "resides" only in the district of the chartering state where its principal office is located, Galveston, H. S. A. Ry. v. Gonzalez, 151 U.S. 496, 14 S.Ct. 401, 38 L.Ed. 248 (1894); Wood v. Delaware H. R.R., 63 F.2d 235 (2 Cir. 1933), it is arguable that a different result should follow under 28 U.S.C. § 1398(a) which permits it to sue either in the district of its residence or in that of its principal office since the usual construction would make the alternative illusory in the common case where the principal office is in the incorporating state. However, we find it unnecessary to pass upon this.
Miles v. Illinois Central Ry., 1942, 315 U.S. 698, 62 S.Ct. 827, 86 L.Ed. 1129, 146 A.L.R. 1104. The following are among the Circuit Court cases in which the doctrine has been expounded: Schendel v. McGee, 8 Cir., 1924, 300 F. 273; Southern Ry. v. Cochran, 6 Cir., 1932, 56 F.2d 1019; Wood v. Delaware & H. R. Corporation, 2 Cir., 1933, 63 F.2d 235; Chesapeake & Ohio Ry. v. Vigor, 6 Cir., 1937, 90 F.2d 7; Southern Ry. Co. v. Painter, 8 Cir., 1941, 117 F.2d 100, 103, 106; And see, Leet v. Union Pacific Co., 1944, 25 Cal.2d 605, 609, 610, 155 P.2d 42, 158 A.L.R. 1008. See Thomas B. Gray, Venue of Actions, 33 American Bar Association Journal, July 1947, page 659.
Cf. People ex rel. Miles v. Montreal B. Copper Co., 1903, 40 Misc. 282, 285, 81 N.Y.S. 974; Westor Theatres v. Warner Bros. Pictures, Inc., D.C.N.J. 1941, 41 F. Supp. 757, 761; and that defendant's conduct within the state, being limited to solicitation without more, does not constitute transacting business. Green v. Chicago, B. Q. Railway Co., 1907, 205 U.S. 530, 27 S.Ct. 595, 51 L.Ed. 916; Philadelphia Reading Railway Co. v. McKibbin, 1917, 243 U.S. 264, 37 S.Ct. 280, 61 L.Ed. 710; People's Tobacco Co., Ltd. v. American Tobacco Co., 1918, 246 U.S. 79, 38 S.Ct. 233, 62 L.Ed. 587, Ann.Cas. 1918C, 537; Wood v. Delaware H.R. Corp., 2 Cir., 1933, 63 F.2d 235; Schilling v. Delaware H.R. Corp., 2 Cir., 1940, 114 F.2d 69; Frene v. Louisville Cement Co., 1943, 77 U.S.App.D.C. 129, 134 F.2d 511, 146 A.L.R. 926; Jacobowitz v. Thomson, D.C.S.D.N.Y. 1943, 3 F.R.D. 471. Cf. Shelton v. Schwartz, 7 Cir., 1942, 131 F.2d 805.
Green v. Chicago B. Q. Railway Co., 1907, 205 U.S. 530, 27 S.Ct. 595, 51 L.Ed. 916; Philadelphia Reading Railway Co. v. McKibbin, 1917, 243 U.S. 264, 37 S.Ct. 280, 61 L.Ed. 710; People's Tobacco Co. Ltd. v. American Tobacco Co., 1918, 246 U.S. 79, 38 S.Ct. 233, 62 L.Ed. 587, Ann.Cas. 1918C, 537. But very little in addition to solicitation is sufficient. Wood v. Delaware H.R. Corp., 2 Cir., 1933, 63 F.2d 235; Schilling v. Delaware H.R. Corp., 2 Cir., 1940, 114 F.2d 69; Frene v. Louisville Cement Co., 1943, 77 U.S.App.D.C. 129, 134 F.2d 511; Jacobowitz v. Thomson, D.C.S.D.N.Y. 1943, 3 F.R.D.471. In the instant case the significant facts additional to solicitation are that the defendant maintains bank accounts here and that the trustees, registrars and transfer agents for the defendant's securities are in this district.
It has repeatedly been held by authorities which preclude a contrary determination by this Court that the privilege of venue conferred by Section 6 of the Federal Employers' Liability Act is absolute and that the plaintiff's right to bring his action in the federal court in a district where the defendant is doing business is not subject to discretionary denial by the court, whether on considerations of convenience, expense, alleged burden on interstate commerce, or crowding of court calendars with out-of-district cases. Trapp v. Baltimore O.R. Co., D.C., 283 F. 655; Schendel v. McGee, 8 Cir., 300 F. 273; Norris v. Illinois Cent. R. Co., D.C., 18 F.2d 584; Beem v. Illinois Cent. R. Co., D.C., 55 F.2d 708; Southern R. Co. v. Cochran, 6 Cir., 56 F.2d 1019; Wood v. Delaware H.R. Corp., 2 Cir., 63 F.2d 235; Chesapeake O.R. Co. v. Vigor, 6 Cir., 90 F.2d 7, certiorari denied 302 U.S. 705, 58 S.Ct. 25, 82 L.Ed. 545. The great number of cases cited by defendant indicates an exhaustive search for authorities to sustain its view, and the decision of this court that none of the cases upholds the defendant's position compels the conclusion that the so-called doctrine of forum non conveniens, while theoretically a qualification on jurisdiction, has not been applied to any action commenced in the federal court, except in admiralty (Canada Malting Co. v. Paterson Steamships, 285 U.S. 413, 52 S.Ct. 413, 76 L.Ed. 837; Langnes v. Green, 282 U.S. 531, 51 S.Ct. 243, 75 L.Ed. 520) or those cases which would have been denominated as actions in equity before the removal of the distinction by Rule 2 of the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c. Kansas City Southern R. Co. v. United States, 282 U.S. 760, 51 S.Ct. 304, 75 L.Ed. 684; Commonwealth of Massachusetts v. State of M