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87475. Removal of Actions against Corporations Organized under a Law of the United States. The Federal statute on this subject is as follows: "Any suit commenced in any court, other than a Circuit or District Court of the United States, against any corporation, other than a banking corporation,' organized under a law of the United States, or against any member thereof, as such member, for any alleged liability of such corporation, or of such member as a member thereof, may be removed, for trial, in the Circuit Court for the district where such suit is pending, upon the petition of such defendant, verified by oath, stating that such defendant has a defense arising under or by virtue of the constitution, or of any treaty or law of the United States. Such removal, in all other respects, shall be governed by the provisions of the preceding section." It is obvious that, under this statute, two things must concur in order to create a right of removal: 1. That the defendant is a corporation, or a member of a corporation, organized under a law of the United States, other than a national bank. 2. That such corporation or member has a defense arising under or by virtue of the constitution or some treaty or law of the United States. Where a corporation created by act of Congress has no defense arising under the constitution or law of the United States, there is no right of removal.3

As to national banks, see ante, §7436; post, § 7899.

Act Cong. July 27, 1866, ch. 288, § 1; Act Cong. July 27, 1866, ch. 255, 2; 15 U. S. Stats., p. 227; Rev. Stat. U. S., § 640.

Magee v. Union Pac. R. Co., 2 Sawy. (U. S.) 447. It seems that the affidavit may be made in the most general terms, pursuing the language of the statute, and stating the mere conclusion of law that the defendant has a defense under the constitution and treaty or a law of the United States, without disclosing what that defense is, or making it appear to the court that it has a right of removal

under the statute (Burton v. Union
Pac. R. Co., 3 Dill. (U. S.) 336), - the
settled habit of some of the Federal
courts being to construe everything
in favor of their own jurisdiction.
The Congress of the United States
not being under any prohibition in
respect of the passage of local or
special laws, has passed acts of a local
or special nature affecting the juris-
diction of the courts of the United
States, and some of these acts appear
in the charter of corporations granted
by act of Congress. Thus, the charter
of the Union Pacific Railroad Com-
pany provides that the corporation
by that name
"shall have perpetual

§ 7476. Further of This Subject.-The language of the charter of the Bank of the United States was that it should have power to "sue and be sued . . . . in courts of record, or in any other place whatever." It was held that this did not enable it to sue and be sued in courts of the United States.1 But where the act of Congress creating the Bank of the United States provided that it should be "made able and capable in law," "to sue and be sued, plead and be impleaded, answer and be answered, defend and be defended, in all State courts having competent jurisdiction, and in any Circuit Court in the United States," then, as to the constitutional power of Congress to create such a jurisdiction, the court, by an indefensible interpretation of the constitution, held that every action brought by a bank chartered by the United States was an action "arising under the laws of the United States," within the meaning of the constitution.' Extending this doctrine, it has been held, in effect, that every corporation chartered or created under an enabling act of Congress, and having, by its governing statute, the power to sue and be sued, may elect a court of the United States as its forum.'

succession, and shall be able to sue and be sued, plead and be impleaded, defend and be defended, in all courts of law and equity within the United States, and may make and have a common seal," etc. 12 U. S. Stat. at Large, 490, § 1. This is held to confer upon courts of the United States jurisdiction of actions by and against this corporation, without reference to the citizenship of the parties. Bowman v. Union Pac. R. Co., 3 Dill. (U. S.) 367; extending the doctrine of Smith v. Union Pac. R. Co., 2 Dill. (U. S.) 278. It was held that the corporation was suable in the United States court in Nebraska by a citizen of Ohio.

1 Bank of United States v. Deveaux, 5 Cranch (U. S.), 61. See also Bank of United States v. Martin, 5 Pet. (U. S.) 479; Osborn v. Bank of

United States, 9 Wheat. (U. S.) 738; and compare Bank of United States v. Northumberland Bank, 4 Wash. (U.S.) 163.

• Osborn v. Bank of United States, 9 Wheat. (U. S.) 738, 817.

It was so held with reference to the Union Pacific Railroad Company, in Union Pac. R. Co. v. McComb, 1 Fed. Rep. 799. It was accordingly held that under the act of Congress of March 3, 1875, 18 U. S. Stat. at Large, 470, providing for the removal from State to Federal Courts of causes "arising under the constitution or laws of the United States," a suit by a railroad corporation created by an act of Congress was a proper subject for removal. Union Pac. R. Co. v. McComb, 1 Fed. Rep. 799. It is perceived that this section contains an exception in the words "other than

8 7477. Suits Arising under the Laws of the United States. Outside of the operation of section 640 of the Revised Statutes of the United States, considered in the preceding section, is the act of Congress of March 3, 1875, giving a right of removal to the defendant or defendants in "any suit of a civil nature, at law or in equity, arising under the constitution or laws of the United States, or treaties made, or which shall be made, under their authority," etc." The Supreme Court of the United States have held, though without entire unanimity, that corporations created and organized under acts of Congress aro entitled, as such, to remove suits brought against them in the courts of the States, to courts of the United States, under the act of 1875, on the ground that such suits are suits arising under the laws of the United States," without reference to the nature of the controversy. The decision seems to be not merely untenable, but a most unfaithful interpretation of the statute. der it, the mere fact that corporations have been created by an act of Congress entitles them to remove to courts of the United States all controversies between them and citizens of the State within which they operate their railroads or otherwise carry on their business, although such controversies arise, not under any act of Congress or treaty of the United

a banking corporation organized under a law of the United States." This was manifestly intended to exclude the right of removal in the cases of national banks. It has been held that the receiver of a national bank has not, as such, the privilege of litigating all cases in the courts of the United States, and cannot remove a cause against him from the State court to the United States court; since national banks are excepted by the statute now under consideration, and since such a receiver is not the bank in the sense of the 57th section of the National Currency Act, 13 U. S. Stat. 116, which gives the State courts concurrent jurisdiction with the courts of

Un

the United States, in suits against any association under the act; and since such a receiver has no prerogative in respect of the court in which he shall litigate over other persons. Compare ante, §§ 7270, 7320; post, § 7899. Bird v. Cockrem, 2 Woods (U.S.), 32..

18 U. S. Stat. 470.

This section is reproduced in the act of Congress of March 3, 1887, carrected in its enrollment by Act of Angust 13, 1888, § 2; 1 Supp. to Rev. Stat. U. S. (2d ed), p. 612.

Pacific Railroad Removal Cases, 115 U. S. 1, 11. (Wait, C. J., and Miller, J., dissenting).

States, but depend wholly upon the municipal law of the particular State. The same court at the subsequent term, dealing with the same question, the right of removal under the act of 1875, - laid down the correct principle on which the right of removal in such cases depends, in the following language: "If from the questions it appears that some title, right, privilege, or immunity, on which the recovery depends, will be defeated by one construction of the constitution or a law of the United States, or sustained by the opposite construction, the case will be one arising under the constitution or laws of the United States, within the meaning of that term as used in the act of 1875; otherwise not." The court accordingly held that the questions whether the city of New York has the exclusive right to establish ferries between Manhattan Island and the north shore of Staten Island on the Kill von Kull, and whether in a given case this right has been interfered with by the setting up of a ferry without license, are not questions arising under the constitution or laws of the United States. And so it was held, with obvious propriety, in an earlier case, that a suit cannot be removed, under the act of 1875, simply because, in its progress, a construction of the constitution, or of a law of the United States, may be necessary, unless the suit, in part, at least, arises out of a contro

1 It has been held by a State court that, in the case of a corporation created under the laws of another State, and sued in the domestic State to enforce a schedule of rates adopted by the railroad commissioners of the domestic State, there is no right of removal on the part of the defendant, on the ground that Federal questions are involved, although the railroad of the corporation has been built in part through the aid of a congressional grant of land. State v. Southern Pac. Co., 23 Or. 424.

Starin v. New York, 115 U. 8. 248, 257. The court cited the following decisions as supporting this proposition: Cohens v. Virginia, 6 Wheat.

(U. S.) 264, 379; Osborn v. Bank of United States, 9 Wheat. (U. S.) 738, 824; Mayor v. Cooper, 6 Wall. (U. S.) 247, 252; Gold Washing &c. Co. v. Keyes, 96 U. S. 199, 201; Tennessee v. Davis, 100 U. S. 257, 264; Railroad Company. Mississippi, 102 U. 8. 135, 140; Ames v. Kansas, 111 U. S. 449, 462; Kansas Pac. R. Co. v. Atchison &c. R. Co., 112 U. S. 414, 416; Provident Sav. Life &c. Soc. v. Ford, 114 U. S. 635, 641; Pacific Railroad Removal Cases, 115 U. S. 1, 11. See also Dowell v. Griswold, 5 Sawy. (U.S.) 39, 42.

• Starin v. New York, 115 Ú. S. 248.

versy in regard to the operation and effect of some provision in that constitution or law upon the facts involved.1

§ 7478. Removal by Alien Corporations. The Revised Statutes of the United States give the right to remove a cause from a State to a Federal court, "when the suit is against an alien." A corporation created under the laws of Great Britain has been held to be an "alien" within the meaning of this provision."

ARTICLE IV. "INHABITANCY" OF CORPORATIONS FOR THE PURPOSES OF FEDERAL JURISDICTION.

§ 7484. "Inhabitancy" for Purposes of Federal Jurisdiction. Several statutes of the United States have successively restrained the bringing of civil actions in courts of the United States to cases in which the person impleaded as defendant is