road Company by the service made on its president while he was casually passing through the district and was not at the time representing the railroad company. The railroad company was not so identified with its president at the time in that district as to render the service of summons upon him a service upon it so as to subject it to the orders or judgments of that court. Goldey v. Morning News Co., 156 U. S. 521; Mex. Cent. Ry. Co. v. Pinkney, 149 U. S. 209; Harris v. Hardeman, 14 How. 339; Phillips v. Burlington Library Co., 141 Pa. St. 462.

A corporation can be said to have a technical habitat or place of residence only in the State or district where its corporate meetings are held. G., H. & San Ant. Ry. Co. v. Gonzales, 151 U. S. 496; Int. Com. Comm. v. Tex. & Pac. Ry. Co., 57 Fed. Rep. 949; Jones v. Scottish Accident Ins. Co., L. R. 17 Q. B. Div. 421; Watkins v. Scottish Imperial Ins. Co., L. R. 23 Q. B. D. 285; Frick Co. v. Norfolk & W. R. Co., 26 Fed. Rep. 725; Lafayette Ins. Co. v. French, 18 How. 408.

The service of summons, even upon the president of a corporation while temporarily in a State or district in which the corporation is not at the time transacting its business, is not a valid service upon the corporation, even though the local laws should authorize the same, because such president does not then represent that corporation. Saint Clair v. Cox, 106 U. S. 350; Goldey v. Morning News, 156 U. S. 518; Construction Co. v. Fitzgerald, 137 U. S. 106; Mecke v. Valleytown Mineral Co., 93 Fed. Rep. 697; Beale on For. Corp. § 270.

The rule is the same even though the corporation at some period prior to the service had been engaged in business in the particular State or district, or that some officer of the corporation had at all times resided therein. The corporation has the right to withdraw from the State or district, and when it is no longer represented in such State or district by an agent transacting therein its ordinary business, it cannot be said to be present therein at the time. Conley v. Mathieson Alkali Works, 190 U. S. 406; Geer v. Mathieson Alkali Works, 190

U. S. 428; DeCastro v. Compagnie Francaise &c., 76 Fed. Rep. 426; Earle v. Chesapeake & Ohio R. Co., 127 Fed. Rep. 235; Cady v. Associated Colonies, 119 Fed. Rep. 420; Eldred v. Am. Palace-Car Co., 105 Fed. Rep. 455; Beale on For. Corp. §§ 279, 281.

The railroad company may still own lands within the Territory of New Mexico without being represented therein by any authorized agency. Owning or holding lands in such district is not doing or transacting its business therein. Mo. Coal & Mining Co. v. Ladd, 160 Missouri, 435; nor is it doing business in the Territory by prosecuting suits. McCall v. Mortgage Co., 99 Alabama, 427; St. L., A. & T. Ry. Co. v. Fire Assn., 55 Arkansas, 163; Utley v. Mining Co., 4 Colorado, 369. The test is whether the corporation has an agency within the district transacting therein its ordinary business so that it may be said to be impersonated in or represented by such agency for general purposes, including its subjection to the service of process therein. Saint Clair v. Cox, 106 U. S. 351; United States v. Am. Bell Tel. Co., 29 Fed. Rep. 17.

The District Court has no jurisdiction. It is a terminal court and was not included in § 9, act of February 4, 1887, 24 Stat. 382. Reynolds v. United States, 98 U. S. 145, 154; McAllister v. United States, 141 U. S. 174. As to what is a court of competent jurisdiction under act of March 3, 1887, see Union Switch Co. v. Hall Signal Co., 65 Fed. Rep. 625, and as to what is meant by "where defendant resides or may be found" under act of July 2, 1890, see United States v. Bell Tel. Co., 29 Fed. Rep. 34; Maxwell v. A., T. & S. F. R. R. Co., 34 Fed. Rep. 286; Bentlif v. London &c. Corporation, 44 Fed. Rep. 667; Clews v. Woodstock Iron Co., 44 Fed. Rep. 31; St. Louis Wire Co. v. Consolidated Wire Co., 32 Fed. Rep. 802; Good Hope v. Railway Fencing Co., 22 Fed. Rep. 635.

MR. JUSTICE HARLAN, after making the foregoing statement, delivered the opinion of the court.

Baker had been succeeded in office by Judge Ira A. Abbott. And it moved that such order be made in the premises as would be conformable to the rules and practice of this court. Judge Abbott consents that the action may be revived against him as the successor of Judge Baker, and proceed to a hearing, without further summons or notice, upon the record as now presented to the court.

The first question to be considered is whether it is competent for this court, Judge Baker having ceased to be judge, to substitute the name of his successor, as the appellee.

In United States v. Boutwell, 17 Wall. 604, 607, which was a mandamus against Mr. Boutwell as Secretary of the Treasury, it appeared that after the case was brought to this court the defendant resigned his office. Thereupon a motion was made to substitute the name of his successor, Mr. Richardson. It did not appear that any previous application was made to the latter for leave to substitute his name, and he opposed the motion, which was denied.

Mr. Justice Strong delivered the opinion of the court, saying: "The office of a writ of mandamus is to compel the performance of a duty resting upon the person to whom the writ is sent. That duty may have originated in one way or in another. It may, as is alleged in the present case, have arisen from the acceptance of an office which has imposed the duty upon its incumbent. But no matter out of what facts or relations the duty has grown, what the law regards and what it seeks to enforce by a writ of mandamus, is the personal obligation of the individual to whom it addresses the writ. If he be an officer, and the duty be an official one, still the writ is aimed exclusively against him as a person, and he only can be punished for disobedience. The writ does not reach the office. It cannot be directed to it. It is, therefore, in substance a personal action, and it rests upon the averred and assumed fact that the defendant has neglected or refused to perform a personal duty, to the performance of which by him the relator has a clear right. Hence it is an imperative rule that previous

to making application for a writ to command the performance of any particular act, an express and distinct demand or request to perform it must have been made by the relator or prosecutor upon the defendant, and it must appear that he refused to comply with such demand, either in direct terms or by conduct from which a refusal can be conclusively inferred. Thus it is the personal default of the defendant that warrants impetration of the writ, and if a peremptory mandamus be awarded, the costs must fall upon the defendant." The court proceeded: "It necessarily follows from this, that on the death or retirement from office of the original defendant, the writ must abate in the absence of any statutory provision to the contrary. When the personal duty exists only so long as the office is held, the court cannot compel the defendant to perform it after his power to perform has ceased. And if a successor in office may be substituted, he may be mulcted in costs for the fault of his predecessor, without any delinquency of his own. Besides, were a demand made upon him, he might discharge the duty and render the interposition of the court unnecessary. At all events, he is not in privity with his predecessor, much less is he his predecessor's personal representative. As might be expected, therefore, we find no case in which such a substitution as is asked for now has ever been allowed in the absence of some statute authorizing it."

That case was followed by United States v. Chandler, 122 U. S. 643; United States v. Lochren, 164 U. S. 701; Warner Valley Stock Co. v. Smith, 165 U. S. 28, and United States ex rel. &c. v. Butterworth, 169 U. S. 600, 604, 605. In the latter case the court, after referring to prior cases, concluded its opinion in these words: "In view of the inconvenience, of which the present case is a striking instance, occasioned by this state of the law, it would seem desirable that Congress should provide for the difficulty by enacting that, in the case of suits against the heads of Departments abating by death or resignation, it should be lawful for the successor in office to be brought into the case by petition, or some other appropriate method."

Later, Congress, its attention being thus called to the matter, passed the act of February 8, 1899, c. 121, by which it was provided: "That no suit, action, or other proceeding lawfully commenced by or against the head of any Department or Bureau or other officer of the United States in his official capacity, or in relation to the discharge of his official duties, shall abate by reason of his death, or the expiration of his term of office, or his retirement, or resignation, or removal from office, but, in such event, the court, on motion or supplemental petition filed, at any time within twelve months thereafter, showing a necessity for the survival thereof to obtain a settlement of the questions involved, may allow the same to be maintained by or against his successor in office, and the court may make such order as shall be equitable for the payment of costs." 30 Stat. 822.

In view of the reasons assigned, in the Boutwell case, for the inability of the court, in mandamus proceedings, to substitute an existing public officer as a party in the place of his predecessor, who had ceased to be in office, we perceive no reason why, under the act of 1899, the successor of Judge Baker may not be now made a party in his stead. Certainly, the statute authorizes that to be done, if in the judgment of the court, there is a necessity for such action in order to obtain a settlement of the legal question involved. We think such a necessity exists in this case, and as Judge Abbott waives any formal summons and consents to the substitution of his name in place of that of Judge Baker, the motion of appellant is granted, and such substitution is ordered to be and is now made, subject, however, to the condition that he shall not be liable for any costs prior to this date.

We come now to the merits of the case.

The act under which the Territory of New Mexico was created and organized, approved September 9, 1850, provides that the legislative power of the Territory of New Mexico should extend to all rightful subjects of legislation consistent with the Constitution of the United States. The same act