(192 Ky. 137, 232 S. W. 411.) tion a certificate of such incorporation." Section 4225 of the Statutes, which is the one that provides for the collection of the organization tax demanded by the defendant, says: "Every corporation which may be incorporated by or under the laws of this state, having a capital stock divided into shares, shall pay into the state treasury one tenth of one per centum upon the amount of capital stock which such corporation is authorized to have, and a like tax upon any subsequent increase thereof. Such tax shall be due and payable on the incorporation of the company and on the increase of the capital stock thereof, and no such corporation shall have or exercise any corporate powers until the tax shall have been paid, and upon payment it shall file a statement thereof with the secretary of state." Counsel for plaintiff, both in the petition and in brief filed on this appeal, take the position that: (a) It was the intention of the legislature in enacting the last-inserted section to demand and require the payment of the organization tax, therein provided for, only from corporations created in this state for the first time, and that it was not intended that such organization tax should be collected from a prior created foreign corporation, which still desired to maintain its foreign identity, when it sought to become domesticated in the manner pointed out in § 765, supra, in order that it may become vested with the powers set forth in § 211 of the Constitution; and that (b) if those sections are susceptible to the construction that it was the intention of the legislature to impose the organization tax upon foreign railroad companies seeking to become domesticated in the manner pointed out, then such an intention and purpose were beyond its power to enact, and that § 4225, in so far as it provides for such a purpose, if it does do so, is unconstitutional and void, as im posing an unlawful burden upon interstate commerce. The attorney general, in behalf of the secretary of state, contests the correctness of both of these propositions. In support of the second one-(b)-counsel for plaintiff cites and relies on the case of Western U. Teleg. Co. v. Kansas, 216 U. S. 1, 54 L. ed. 355, 30 Sup. Ct. Rep. 190; but the question there involved, as we interpret that opinion, was the domestication of the foreign corporation in a manner similar to that provided by § 841, supra, of our Statutes, in order to permit it to transact business in the domesticating state. No question relating to the conferring of authority on the foreign corporation to own real property within the borders of that state, or conferring upon it power to exercise the right of eminent domain therein, was involved in that case: Whether a different rule would prevail if those questions had been involved we will not attempt to discuss or determine, since we have arrived at the conclusion that contention (a) of plaintiff's counsel is correct, which disposes of the necessity of determining the other one. thing known to the law as the Corporation Sovereignties. But, while this is creation in corporations. which residence or citizenship is material, a citizen and a resident or inhabitant of the state by or under the laws of which it was created." -how intent ascertained. Whether the method provided by the domesticating state, to which the applying corporation is a foreign one, was intended to create a new corporation, or only to confer certain powers upon the foreign corporation, is a question of intention to be gathered from the language employed in the constitutional or statutory provisions prescribing the method. C. J. supra, 1332, and 8 Fletcher, Cyc. Corp. § 5709, pp. 9304-9309. From the same sources, and from other authorities which might be cited, we learn that before such an intention will be inferred it must appear from the language employed that the purpose was to create the corporation anew, and to confer upon it all the -what must appear to indicate intent. powers usually exercised by similar domestic corporations, and to reserve to the state the power to exercise such authority over the corporation as is usually exercised over its originally created and wholly domestic ones. "The mere grant of privileges or powers to an existing corporation, without more, does not do this, and does not make it a citizen of the state conferring such powers." C. J. supra, 1232; Pennsylvania R. Co. v. St. Louis, A. & T. H. R. Co. 118 U. S. 290, 30 L. ed. 83, 6 Sup. Ct. Rep. 1094, and numerous other cases cited in note 34 to the above text. Section 211 of the Constitution only purports to confer two rights: one to own real estate in this state, and the other the power to acquire it by condemnation through the exercise of the right of eminent domain; and it is only upon foreign railroad corporations that even those two rights may be conferred by that section. Both it and § 765 of the Statutes recognize the continued existence of the foreign railroad corporation after their provisions have been complied with by it. There is no intimation in either of them that, after being clothed with the power and authority attempted to be conferred, the creature or entity thereby becoming possessed of them has been made a new creature by being born again. The section of the Constitution withholds from such foreign corporations either of the two rights referred to, "until it shall have become a body corporate," etc. Logically there would no longer be a foreign corporation to which the pronoun "it" could apply, if the domesticating method extinguished the foreign corporation by creating an entirely new one under the laws of this state. Likewise § 765 of the Statutes, in providing the method by which the same rights may be conferred upon a foreign railroad corporation, withholds them "until it" (not individuals proposing to form a new corporation) shall do the things prescribed in the section. Indeed, if the contention of the secretary of state and of his counsel, the attorney general, be true, i. e., that it was the intention of § 211 of the Constitution and of § 765 of the Statutes to create outright a new corporation in Kentucky, and that none but domestically created corporations can exercise the rights proposed to be conferred by those sections, then there would have been no use for their enactment, since in that case it would have been sufficient to say, both in the Constitution and the Statutes, that no railroad corporation "shall be entitled to the benefit of the right of eminent domain or have power to acquire the right of way or real estate for depot or other purposes," unless it be one created exclusively under the laws of this state. All the references to a foreign corporation in each of the sections, and to what "it" must do, and to the powers which "it" will receive thereafter, can have no meaning unless it was the intention to recognize "it" as a continuing foreign corporation. It must, furthermore, not be overlooked that the sections of the Constitution and of the Statutes now (192 Ky. 137, 232 S. W. 411.) under consideration propose only to confer upon the corporation the limited powers above referred to. They do not pretend to confer all of the corporate powers usually given to and exercised by newly created corporations. If the effect of a compliance with the sections of the Constitution and Statutes under consideration is complete domestication for all purposes, so as to convert the foreign corporation into a newly created Kentucky one, the result would be that the foreign corporation would become citizenized here so as to deprive it of the status of a foreign corporation, and bar its right to invoke the jurisdiction of Federal courts upon the ground of diverse citizenship. In the case of Louisville, N. A. & C. R. Co. v. Louisville Trust Co. 174 U. S. 552, 43 L. ed. 1081, 19 Sup. Ct. Rep. 817, the Supreme Court of the United States had before it facts substantially the same as we have here, and it held that the foreign corporation did not extinguish its foreign identity, or lose its status as a citizen of the foreign state (Indiana), by becoming incorporated in Kentucky so as to enable it to purchase and own real estate here for railroad purposes, and to exercise in this state the right to acquire such property by condemnation under the power of eminent domain. In that case the Louisville, New Albany, & Chicago Railway Company had been incorporated and organized under the laws of the state of Indiana, and in 1880 the legislature of this state passed an act in-. corporating it in this state as a Kentucky corporation, which method of incorporating companies in this state, by special act of the legislature, was both legal and common at that time, but has since been abolished by our present Constitution. The special act incorporating that company in this state conferred upon it, not only the powers above enumerated, but all the powers incident to a corporation, and which are possessed by all other corporations created under the laws of this 18 A.L.R.-9. state. The company accepted its Kentucky charter, and thereafter, on a number of occasions and in a number of transactions, described itself as a Kentucky corporation. It filed a suit in the circuit court of the United States for the district of Kentucky, the defendants in which were citizens of Kentucky. They contested the jurisdiction of the court upon the ground that the plaintiff therein was a citizen of Kentucky, and could not invoke the jurisdiction of the Federal court on the ground of a diversity of citizenship. The Supreme Court in rejecting that contention said: "As to the jurisdiction, it being clear that the plaintiff was first created a corporation of the state of Indiana, even if it was afterwards created a corporation of the state of Kentucky also, it was and remained, for the purposes of the jurisdiction of the courts of the United States, a citizen of Indiana, the state by which it was originally created. It could neither have brought suit as a corporation of both states against a corporation or other citizen of either state, nor could it have sued or been sued as a corporation of Kentucky, in any court of the United States. Ohio & M. R. Co. v. Wheeler, 1 Black, 286, 17 L. ed. 130; St. Louis & S. F. R. Co. v. James, 161 U. S. 545, 40 L. ed. 802, 16 Sup. Ct. Rep. 621; St. Joseph & G. I. R. Co. v. Steele, 167 U. S. 659, 663, 42 L. ed. 315, 316, 17 Sup. Ct. Rep. 925; Barrow S. S. Co. v. Kane, 170 U. S. 100, 106, 42 L. ed. 964, 966, 18 Sup. Ct. Rep. 526." If the baptismal ceremony administered to the foreign corporation in that case did not have the effect of extinguishing it and making of it an entirely new creature, so as to destroy its foreign identity in Kentucky, it is difficult to see how the administration of our present provided ceremony would have that effect, since it goes no further toward manifesting such an intention on the part of the legislature than did the domesticating acts in the case referred to; and manifestly the or ganization tax demanded of plaintiff is not required by § 4225 of the Statutes of any other corporations than those created (sometimes referred to as "born") here, and those terms can have no application to a corporation which still has its former foreign existence. This court in the case of Cincinnati, N. O. & T. P. R. Co. v. Com. 119 Ky. 196, 83 S. W. 562, held that the organization tax sought to be collected in the instant case as imposed by the section of the Statutes, supra, could not be exacted of a foreign railroad company which had complied with the provisions of § 841, although the section says that a foreign corporation complying with its terms "shall at once become and be a corporation, citizen, and resident of this state." In the case of Plummer v. Chesapeake & O. R. Co. 143 Ky. 102, 33 L.R.A. (N.S.) 362, 136 S. W. 162, there were presented to this court questions relating to the domesticating of foreign railroad corporations pursuant to the method provided by, and for the purposes contained in, § 765, supra, of the Statutes, and it was expressly held in that case that the process of domestication provided by the two sections (765 and 841) were for distinct and separate purposes, but, as said in the opinion, so we may say now: "Why this distinction was made it is not essential, in the consideration of the question before us, to inquire." In that opinion this court discussed the legal effect of a compliance by a foreign corporation with those two sections of the Statutes, the one making it "a corporation, citizen, and resident of this state," and the other making it one "organized as a corporation under the laws of this state," and then said: "It would therefore seem that, so far as our laws can affect the question, the corporation that has complied with § 841 is to the same extent a Kentucky corporation as is a foreign corporation that complies with § 765. The only difference between the two sections is in the means or method by which the foreign corporation is converted into or becomes a Kentucky corporation. So far as the principle involved is concerned, the requirements imposed by one section cannot be distinguished from those imposed by the other." It naturally follows that if a compliance with § 841 would not domesticate the complying corporation, so as to destroy its foreign identity and to render it amenable to the payment of the organization tax required by § 4225, supra, as held in the case of Cincinnati, N. O. & T. P. R. Co. v. Com. supra, a compliance with the provisions of § 765, supra, would also not have that effect. Upon the whole case we conclude that it was not the intention of the legislature, in enacting § 4225 of the Statutes, to in- -domestication clude therein for- of foreign eign corporations Corporation, seeking domestication under the provisions of § 765, and that plaintiff cannot be required to pay the organization tax demanded of it by the defendant. He should have accepted and filed the papers tendered him without the payment of that tax, and the judgment appealed from, conforming to these views, is affirmed. ANNOTATION. Effect of domestication of foreign corporations. I. Distinction between licensing to do domestic business and domesticating foreign corporation, 131. II. Distinction between creation of domestic corporation united to, and domestication of, foreign corporation, 133. III. Mutuality of action by state and corporation to effect domestication of foreign body, 134. IV. Residence of domesticated foreign corporation, 135. V. Citizenship of domesticated foreign corporation, 135. VI. Amenability of domesticated foreign corporation to legal process of domestic courts, 140. 1. Distinction between licensing to do domestic business and domesticating foreign corporation. Every corporation, unless the law or its charter forbids, may be permitted to transact corporate business beyond the limits of its own state. Canada Southern R. Co. v. Gebhard (1883) 109 U. S. 527, 27 L. ed. 1020, 3 Sup. Ct. Rep. 363; Galveston, H. & S. A. R. Co. v. Gonzales (1894) 151 U. S. 496, 38 L. ed. 248, 14 Sup. Ct. Rep. 401. A mere grant of privileges or powers to a foreign corporation, without more, does not make it a domestic one. Pennsylvania R. Co. v. St. Louis, A. & T. H. R. Co. (1886) 118 U. S. 290, 30 L. ed. 83, 6 Sup. Ct. Rep. 1094. Thus, the mere consent of a state to the extension within its territory of the line of a foreign railroad corporation, and to the carrying on of the business of such railroad within the state, does not make the railroad company a domestic corporation. Ibid. The domestication of a foreign corporation does not result from compliance with the Texas statute that provides, in substance, that foreign corporations shall obtain from the secretary of state permission to do business, and shall designate a chief office within the state, and shall then have and enjoy all the rights and privileges conferred by law upon domestic corporations. Coca Cola Co. v. Allison (1908) 52 Tex. Civ. App. 54, 113 S. W. 308. It, confessedly, is not easy to differentiate a legislative purpose to create a new domestic corporation, owing its life to the statute creating it, out of a foreign corporation, from a legislative intent to enable a corporation of another state to function within the domestic territory. Pennsylvania R. Co. v. St. Louis, A. & T. H. R. Co. (1886) 118 U. S. 290, 30 L. ed. 83, 6 Sup. Ct. Rep. 1094. According to this case, the language of the statute designed to effect the domestication of a foreign corpora foreign corporation, 141. VIII. Conclusion, 142. tion must be such as to imply the creation or adoption of the corporation in a form that clothes the state with powers usually exercised by it over its own domestic corporations, and that requires the foreign body to render to that state the allegiance which a corporation owes to its creator. This proposition has been reaffirmed, and may be asserted to be the law of the United States Supreme Court. Louisville, N. A. & C. R. Co. v. Louisville Trust Co. (1899) 174 U. S. 552, 43 L. ed. 1081, 19 Sup. Ct. Rep. 817. The consolidation of a foreign and a domestic corporation effected in strict compliance with statutes of the domestic state conferring upon the combined organization the status, rights, powers, and privileges of a domestic corporation, and subjecting it to all the duties and liabilities of such a corporation, makes the consolidated body, to all intents and for all purposes, a domestic corporation, governed by and subject to the laws of the domestic state. State ex rel. Leese v. Chicago, B. & Q. R. Co. (1888) 25 Neb. 156, 2 L.R.A. 564, 41 N. W. 125. A statute naming a railroad corporation chartered by the legislature of an adjoining state, and authorizing it to extend and construct its line between designated points through the territory of the enacting state, and providing that, if such company should avail itself of the privilege thereby granted, it should, as to all its rights, franchises, property, powers, duties, and obligations within the state, be subject to all the provisions of the laws thereof, was construed to create a domestic corporation of such railroad. Goshorn v. Ohio County (1865) 1 W. Va. 308. The purchase by a foreign railroad company of the railroad and franchises of a domestic one, and its acquisition by statute of authority to have, use, and enjoy them and the rights, powers, and privileges of its |