plaintiff brings his action under the statute in a state court, he cannot remove the case to a federal court; for by so doing he chooses his form in which to litigate the case; but that will not bar his right to remove the case by a writ of error to the Supreme Court of the United States from a decision construing the statute adversely to him by the highest appellate court of his state. In order, however, to remove the case to a state court the declaration or complaint must disclose the fact that the action arises under the statute. If it does not disclose that fact, then such fact cannot be supplied by the defendant in its petition for a removal, unless perhaps by affidavit the defendant asserts that the allegations to show doubtedly, therefore, the defend ant would have the right to transfer his case to the federal court." 60 Cong. Rec., 1st Sess., p. 4529. Senator Heyburn: "Mr. President, under the law governing the removal of cases there is not a particle of room for doubt but that any case arising under the provisions of this law involving a jurisdictional amount might be removed to the United States court upon the motion of the party sued, which would be the railroad company, of course, because the bill applies only to common carriers by rail. There is no question about that at all. There are two grounds upon which a case may be removed. One is diverse citizenship, and the other is that it necessarily depends upon the interpretation of a law of Congress or of the Constitution. We have all had too much practice in the removal of cases to federal courts to be in doubt in regard to that question." 60 Cong. Rec., 1st Sess., p. 4537. Senator Culberson: "But if a citizen of Texas shall sue a rail way corporation organized under the laws of Texas, whose line of railway does not even extend beyond the limits of the state, if the act occurred by which the injuries resulted while that train was, though within the limits of Texas, carrying interstate commerce, that Texas corporation, under this bill, may remove the case to the United States court to have it determined there, because not only may it be said that the right of action so far as this law is concerned arises under this act, but it may be that the corporation will declare in its pleadings that its defense rests upon a proper construction of this act of Congress. All I ask the Senate to do at this time is at least to confine the removal of the cases to those other than those between a citizen of a state and a domestic corporation of a state." 60 Cong. Rec., 1st Sess., p. 4543. The Senate refused to adopt an amendment requiring diverse citizenship before a case could be removed to a federal court. Ibid, pp. 4544, 4545. the action arises under the statute was fraudulently left out in order to retain the jurisdiction of the state court. But it may well be doubted if this can be done. Undoubtedly the better plan for the defendant is to insist that as the declaration or complaint does not disclose that the action arises under the statute then the statute is not involved; but if the evidence discloses that it does arise under the statute, or if the injury was received by the plaintiff while engaged in interstate commerce within facts requisite to obtain relief under the statute there is a fatal variance, and the verdict must be for the defendant. The way for the defendant to obtain relief is an appeal through the state's highest court of appeals to the Supreme Court. Of course if the declaration or complaint be amended at any stage of the proceedings the defendant may (and should do so at once before any other step is taken) immediately apply for a removal to the Federal Court."* § 107. Pleading. It is not necessary to plead the act in order to show that the action is based upon it; nor is any reference to the provisions of the act necessary. It is sufficient if the complaint show that the defendant and the employe were both engaged in interstate commerce at the time he received his injury; and when that is done the court will measure the plaintiff's right to recover and the defendant's liability for damages by the terms of the statute. It has been suggested that if the declaration or complaint does not disclose whether the action is based upon the statute or not or whether it is grounded upon the statute or the general law of negligence-it is demurrable on the ground that no cause of action is stated. But this position is untenable. The question of the jurisdiction of a Federal Court is always present throughout the entire proceedings, except See Section 175. *The following cases may be consulted on the question of fraudulent jurisdiction: Wecker v. National, etc., Co. 204 . S. 176; 51 L. Ed. 430; 27 Sup. Ct. where there has been a waiver over the person. It may be presented at any time. While its jurisdiction is general in one sense of the word, in another it is limited. The true rule is that one that solves the difficulties involved, that if the declaration or complaint does not disclose the action is based or grounded upon the statute, then the plaintiff is not seeking to recover for an injury received while engaged in the interstate traffic of the defendant and the sufficiency of his pleading must be measured by the general state law, the provisions of the statute not being involved. However, if the evidence discloses the case is one under the statute there will be a fatal variance and the plaintiff must fail. $108. Common carriers defined-Receivers.-The statute applies to "every common carrier by railroad while engaging in" interstate commerce and in the territories. The statute also provides that: "The term 'common carrier' as used in this act shall include the receiver or receivers or other persons or corporations charged with the duty of the management and operation of the business of a common carrier.'” § 109. Statute of limitations. "No action shall be maintained under this act unless it commenced within two years from the day the cause of action accrued.''s At what time "the cause of action accrued" is the turning point under this section. So far as the employe is personally concerned, there is no difficulty; for his cause of action accrues on the day he is injured. The difficult question is when he dies from his injuries, when does the right of action in the administrator accrue? Clearly, at least, at the death of the employe. But did not it accrue before that time,-at the date of the injury? The weight of authority is that the administrator's right of action is a new and independent cause of action, and therefore, his cause of action did not accrue until the death of the injured employe." Sec. 7 of the Act. Sec. 6 of Act. $109a. Review on error. If the action be brought in the United States Circuit Court, any judgment rendered therein may be reviewed in the Circuit Court of Appeals on a writ of error as in ordinary cases; and from the Court of Appeals the case may be taken on a writ of error to the Supreme Court of the United States, where the jurisdiction. of the Federal Court is not entirely dependant upon diverse citizenship; and in other cases a writ of certiorari when especially allowed by the Supreme Court. If the constitutionality of the statute be involved, then a writ of error direct from the Federal Supreme Court to the United States Circuit Court of the district which rendered the judgment lies, no matter how decided, or where a state law upon the subject is claimed to be in contravention of the Federal Constitution or the Federal Act in question, or where the jurisdiction of the Federal Court is drawn in question. If the action is prosecuted in a state court then the judgment may be reviewed by the Supreme Court on a writ of error issued by it to the court of last resort in the state in the following instances: (1.) Where each court of last resort holds the Act invalid. (2.) Where such court holds a state statute valid which the plaintiff has relied upon, but which the defendant has attacked on the ground that it contravenes the Federal constitution. (3.) Where the judgment of such court is adverse to a right, privilege or immunity specially set up and claimed by either plaintiff or defendant under the Federal constitution or Federal law. (a) An example in the first instance would be where the plaintiff has relied upon the Federal Act in question and the defendant has not removed the case to the Federal Court, but has contested its validity in the state court. (b) An example under the second instance is where the plaintiff seeks to recover under a state statute which the defendant claims to be superseded by the Federal Act in question and where the court holds the State Act is not superseded by such Federal Act and allows a recovery under the state law. (c) An example in the third instance is where an immunity from liability has been set up under the Fifth or Seventh Amendments to the Federal Constitution and the state court has sanctioned the validity of the Federal Act; or where the defendant has specially set up and claimed a right or immunity under such Federal Act and that right or immunity has been denied by the state court. The burden is upon the party desiring to secure a right to review a state court judgment in the Federal Supreme Court to put clearly upon the record of the state courts the particular right or immunity claimed by him under the Federal Constitution or the Federal Act." § 109b. Statute not retroactive. The statute in question is prospective, not retroactive. It does not give a remedy for an injury sustained before its enactment.10 The See Section 88. 10 254 Stat. at Large, 826. following cases can be consulted: Osborn v. Detroit, 32 Fed. Rep. 36; Eastman v. County of Clackmas, 32 Fed. Rep. 24; Humboldt, etc., Co. v. Christopherson, 73 Fed. Rep. 239; Wright v. Southern Ry. Co. 80 Fed. Rep. 260; Plummer v. Northern Pac. Ry. 152 Fed. Rep. 206; Hall v. Chicago, etc., R. Co. 149 Fed. Rep. 564; Winfree v. Northern Pac. Ry. Co. 164 Fed. Rep. 698 (decision on this statute). |