the collection of delinquent taxes under a statute of North Dakota; 14 and an action by the personal representative of a decedent to recover damages for causing his death,15 although the act also provides for a fine, payable to the personal representative, after conviction upon an indictment.16

§ 538b. Removal of applications for the writ of mandamus. An application for the writ of mandamus is not removable, except, perhaps, when it is ancillary to proceedings previously pending in the Federal court.1 An affidavit and petition for a writ of mandate filed by a city alleged a street car company's failure and neglect to operate cars, that under its franchise the city was entitled to a percentage of the gross earnings, that the loss sustained by the city was at the rate of $75,000 a year, and that the cessation of operation would cause irreparable damage to the industries and business of the public within the city. It prayed for an alternative writ of mandate, and that upon a refusal or failure of the company to operate cars the court, in addition to punishment for contempt, appoint a receiver. It was held that, while the affidavit and petition contained matters. which were unnecessary and constituted surplusage, the proceeding was not an equitable proceeding for the appointment of a receiver, or an application for a mandatory injunction or a receivership, but a mandamus proceeding, in which the pleader sought a receivership as punishment for noncompliance with the writ, and hence the proceeding was not removable.2

§ 538c. Removal of habeas corpus proceedings. Before the Judiciary Act of 1887 a proceeding upon an application for the writ of habeas corpus could not be removed.1

14 Re Stutsman County, 88 Fed. 337. It has been held that a proceeding in a court in Kentucky to cause the assessment of omitted property, for taxation, cannot be removed. Chicago, St. L.. & No. Ry. Co. v. Commonwealth, 72 S. W. 1119, 24 Ky. Law Rep. 2124.

15 Brisenden v. Chamberlain, 53 Fed. 307; Martin v. N. Y., N. H. & H. R. Co, 241 Fed. 696.

16 Boston & Maine R. Co. v. Hurd,

C. C. A., 56 L. R. A. 193, 108 Fed. 116; Malloy v. American Hide & Leather Co., 148 Fed. 482. The latter case was decided after the Supreme Court of Massachusetts had said that the statute in question was penal.

§ 538b. 1 State City of Seattle v. Puget Sound Traction, Light & Power Co., 243 Fed. 748.

2 Ibid. See supra, § 51.

§ 538c. 1 Kurtz v. Moffitt, 115 U.

§ 538d. Removal of quo warranto proceedings. An action in the nature of a quo warranto, even if it is begun by information, may be removed, when it arises under the Constitution or laws of the United States.1

It was held that a proceeding in the nature of quo warranto to try respondent's title to the office of lieutenant governor, on the ground that he had not been a resident of the State for the time required by the Constitution, was not removable under the "civil rights bill" and the habeas corpus acts of March 3, 1863, and May 11, 1866.2

It has been held: that an action to annul the franchise of a corporation cannot be removed. That a writ of quo warranto brought to enforce the provisions of the Pennsylvania Constitution, and a statute 5 prohibiting competing telegraph companies from consolidating, and providing that upon such consolidation the property shall be forfeited to the Commonwealth, is a criminal proceeding, and therefore cannot be removed from the State court to the United States Circuit Court. That such an action, to determine the defendant's title to office in a corporation organized under the laws of the State in which the suit is brought, is not removable because of difference of citizenship, when the relator is a citizen of that State and the defendant a citizen of another State.7

§ 538e. Removal of proceedings in State courts of probate and of those affecting the administration of decedents' estates. A District Court of the United States has no power to admit a will to probate.1 Consequently an application for the probate of a will is not reviewable either originally, or upon

S. 487, 29 L. ed. 458; Re Burrus, 136 U. S. 586, 593, 597, 34 L. ed. 500, 503, 514, supra.

§ 538d. 1 Ames v. Kansas, 111 U. S. 449, 4 Sup. Ct. 437, 28 L. ed. 482; State of Illinois v. Illinois Cent. R. Co., 33 Fed. 721; supra, § 468.

2 State v. Gleason, 12 Fla. 190. 3 People v. Blecker St. & Fulton Ferry R. R. Co., 178 Fed. 156.

4 Art. 16, sec. 12.

5 Act June 5, 1883, secs. 1, 2.
6 Commonwealth v. Western Union

Tel. Co. (Pennsylvania Common
Pleas, 1889), 1 Daugh. Co. 141.

7 Place v. Illinois ex rel. Wilkin-
son, C. C. A., 69 Fed. 481, 16 C. C.
A. 300.
§ 538e.
72 Fed. 5.

1 Copeland v. Bruning,

2 Copeland v. Bruning, 72 Fed. 5 (under Indiana statute); Hargroves v. Redd, 43 Ga. 142. In McDonnell v. Jordan, 178 U. S. 229, 44 L. ed. 1048, which arose under the Alabama statute, the Supreme Court, without passing upon the

appeal. It has been held that a suit in equity to establish a lost will may be removed. A bill in equity brought to annul a will as a muniment of title, and to limit the operation of the decree admitting the same to probate, was held to be removable.5 It has been held that a statutory proceeding to set aside the probate of a will, in the same court, cannot be removed; but that an appeal from such proceedings may be removed."

A District Court of the United States has no jurisdiction to undertake the general administration of a decedent's estate. A proceeding for the general administration of a decedent's estate. cannot be removed. Neither, it has been held, can a suit to remove an administrator.10

It has been held that the following cases, affecting the estate of a decedent, are removable: a proceeding in a court of probate, against the administrator, to compel payment of a debt owed by the decedent during his life; 11 an action to recover a legacy; 12 an application by an illegitimate child to be permitted to share in a decedent's estate, because of the alleged acknowledgment of the petitioner's paternity in accordance with the State statute; 18 a special proceeding by an administrator for leave to sell the land of his decedent for the payment of debts; 14 and a suit by one executor against another, who was also the surviving partner of the decedent, to compel an account of his administration of the partnership assets.15

§ 538f. Removal of condemnation proceedings. Proceedings for the condemnation of land, when instituted by a State for its exclusive benefit, are not removable, if no Federal question is involved. When instituted by or for the benefit of corporation, public or private, between whom and the respondent the requisite difference of citizenship exists, or when the proceed

2

11 Hess v. Reynolds, 113 U. S. 73, 28 L. ed. 927; Schneider v. Eldredge, 125 Fed. 638. It was held that a claim against the insolvent estate of a deceased person, pending in the superior court on appeal from the decision of the probate commissioners, cannot be removed to the Circuit Court of the United States under Acts 1867, c. 196. Du Vivier v. Hopkins, 116 Mass. 125, 17 Am. Rep. 141.

12 Wilson v. Smith, 66 Fed. 81. 18 Re Foley, 76 Fed. 390.

14 Elliott v. Schuler, 50 Fed. 454. 15 Filer v. Levy, 17 Fed. 609 (although the liquidating partner gave a bond in the State probate court and is an officer thereof). A proceeding by a widow in a District Court of Nevada for a partial distribution of the estate of a decedent, and for a determination that part of the same was separate property and the rest community prop

erty, Re Foley, 80 Fed. 949. It has been said, an application by a widow for an heir's support under the statute of Georgia, McElmurray v. Loomis, 31 Fed. 395; and a proceeding in Louisiana for the removal of an executor and the appointment of his successor, Succession of Burnside, 34 La. Ann. 728, cannot be removed.

Traction

§ 538f. 1 Madisonville Co. v. St. Bernard Min. Co., 130 Fed. 789, 790.

2 Metropolitan Water Co. v. Kansas City, 164 Fed. 738; s. c., 164 Fed. 728; Fishblatt v. Atlantic City, 174 Fed. 196.

3 Boom Co. v. Patterson, 98 U. S. 403, 25 L. ed. 206; Searl v. School District, 124 U. S. 197, 199, 31 L. ed. 415, 416; Madisonville Traction Co. v. St. Bernard Min. Co., 196 U. S. 239, 49 L. ed. 462; affirming 130 Fed. 789. It has been held, in West Virginia, that a for

ing arises under the Constitution or laws of the United States,* although instituted by a town or other subdivision of the State, they may be removed.. Proceedings upon a petition filed with the State railroad commissioners, praying their consent to the taking of certain lands by condemnation proceedings to be subsequently instituted, cannot be removed.6

The initial proceeding for the appraisal by commissioners, at least when the application for their appointment is made ex parte, is usually considered to be purely administrative in its nature and not to be a suit which can be removed." In some cases, when such application is upon notice and may be opposed, it has been held that the proceedings are then removable.8

After their appraisal, when process is issued by the court which appointed them, directing the owners to show cause why their report should not be confirmed, a removal may be had, eign corporation cannot institute proceedings in the United States Courts to condemn the land of a citizen if the State for the use of the corporation, and proceedings of that nature instituted in the State courts cannot be removed to the Federal courts. Baltimore & O. R. Co. v. Pittsburgh, W. & K. R. Co., 17 W. Va. 812.

4 Pacific Railroad Removal Cases, 115 U. S. 1, 18, 29 L. ed. 319, 325; Helena Power Transmission Co. v. Spratt, 46 Fed. 319 (under Montana statute).

5 Metropolitan Water Co. v. Kansas City, 164 Fed. 738; s. c., 164 Fed. 728.

6 New York, N. H. & H. R. Co., v. Cockcroft, 46 Fed. 881; New York v. Sage, 239 U. S. 57.

Boom Co. v. Patterson, 98 U. S. 403, 406, 25 L. ed. 206, 207; Pacific Railroad Removal Cases, 115 U. S. 1, 10, 18, 29 L. ed. 319, 322, 325; Searl v. School District, 124 U. S. 197, 199, 31 L. ed. 415, 416; Des Moines Water Co. v. City of Des Moines, C. C. A., 206 Fed. 537.

8 Northern Pac. Terminal Co. v. Lowenberg, 18 Fed. 339 (under Oregon statute); Mineral Range R. Co. v. Detroit & Lake Superior Cotton Co., 25 Fed. 515 (under Michigan statute); Colorado Midland Ry. Co. v. Jones, 29 Fed. 193 (under Colorado statute); Banigan v. Worcester, 30 Fed. 392 (under Massachusetts statute); Kansas City & Tr. R. Co. v. Interstate Lumber Co., 37 Fed. 3; Sugar Creek, P. B. & P. C. R. Co. v. McKell, 75 Fed. 34 (under West Virginia statute); Postal Tel. Cable Co. v. Southern Ry. Co., 88 Fed. 803 (under North Carolina statute); Union Terminal Ry. Co. v. Chicago, B. & Q. R. Co., 119 Fed. 209 (under Missouri statute). But see Searl v. School District, 124 U. S. 197, 31 L. ed. 415 (under similar statute). But it has been held, that under a Connecticut statute, which requires the appointment of commissioners to be made upon notice, there can be no removal of the proceedings. Hartford & C. W. R. Co. v. Montague, 94 Fed. 337.