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the court may determine in reference to the question of jurisdiction from the facts set out. And it is not sufficient that the petitioner state merely his opinion or conclusion that the suit arises under the Constitution or laws of the United States. Trafton v. Nougues, 4 Saw., C. C., 178.
In the case last cited the court held that where the only questions in a suit to determine mining claims are as to what are the local laws, rules, regulations and customs by which the rights of the parties are governed, and whether the parties have observed them, the courts of the United States have no jurisdsction, under the act of 1875. See, also, The 420 Mining Co. v. The Bullion Mining Co., 3 Id., 634; Dowell v. Griswold, 5 Id., 39; Bertonneau v. The Directors of City Schools, 3 Woods, C. C., 177; Barrow v. Hunton, 99 U. S., 80.
So, in a case where one of the parties relied on the statute of limitations, and on an ordinance of a city, and an act of the legislature confirming the title to lands acquired under it, and it was claimed that the court had jurisdiction, on the ground that the title derived through the city depended upon an act of congress granting land to the city in trust for those who held under the ordinances of the city, State statutes, etc., on error the Supreme Court say: “At the trial no question was raised as to the validity or operative
tion. The real controversy was as to the transfer of the title to the plaintiffs in error, and this did not depend upon the Constitution or any treaty, statute of, or commission held, or authority exercised, under the United States." McStay v. Friedman, 92 U.S., 723. See, also, Romie v. Casanooa, 91 U. S., 379; Hoadley v. San Francisco, 94 Id., 4; Murdoch v. Memphis, 20 Wall., 591; Mayor v. Cooper, 6 Id., 247.
But a case, in law or equity, where a correct decision depends upon a right construction of the Constitution or laws of the United States, is one that may be removed. Cohens v. Virginia, 6 Wh., 379; Osborne v. Bank of United States, 9 Id., 821; United States v. Peters, 5 Cr., 115; Ableman v. Booth, 21 How., 506; Thurston v. Union Pacific R. Co., 3 Dill., 366.
In Kirtland v. Hotchkiss, 100 U. S., 491, the plaintiff instituted a suit in a State court of Connecticut, to restrain the collection of tax warrants levied on his real estate in the town where he resided in Connecticut, for the satisfaction of taxes assessed against him by reason of his ownership of certain bonds, executed in Chicago, and made payable to him, his executors or assigns in that city. The bonds themselves declared that they were made under and were to be construed by the laws of Illinois, and were given for the actual loan of money, at the city of Chicago, and were secured by deeds of trust upon real estate there situated.
The court below sustained the assessment, and a writ of error was prosecuted on the ground that the statute of Connecticut, authorizing such assessment as interpreted, was repugnant to the Constitution of the United States. The jndgment below was affirmed in the Supreme Court. The court observed: “It may, therefore, be regarded as the established doctrine of this court, that so long as the State, by its laws prescribing the mode of and subjects of taxation, does not trench upon the legitimate authority of the Union, or violate any right recognized or secured by the Constitution of the United States, this court, as between the State and its citizens, can afford him no relief against State taxation, however unjust, oppressive or erroneous." Sce, also, Providence Bank v. Billings, 4 Pet., 563, where the court said: “This vital power may be abused; but the Constitution of the United States was not intended to furnish the corrective for every abuse of power which may be committed by the State governments." St. Louis v. The Ferry Co., 11 Wall., 423; State Tax on Foreign-held Bonds, 15 Id., 300.
A suit cannot be removed by the plaintiff when the defendant resides in the same State, where the controversey relates to the title to land, merely because he claims title under a sale made by a United States marshal upon a fieri facias issued from a federal court. Gay v. Lyons, 3 Woods, C. C., 56.
But where a bill in equity alleged that a State had, by legislative act, chartered a lottery company with the right to exercise its franchises for twentyfive years; that the company were to pay to the State $40,000 annually; that the State had subsequently passed an act repealing the charter of the company, and making it a penal offense to carry on the business authorized by the charter; and which charged that said repealing act impaired the obligation of the contract between the State and the lottery company, it was held that it disclosed a case arising under the Constitution of the United States of which the court had jurisdiction irrespective of the citizenship of the parties. The State Lottery Co. v. Fitzpatrick, 3 Woods., C. C., 223 (1879). See, also, Dartmouth College v. Woodward, 4 Wh., 518; State Bank v. Knoop 16 How., 369; Hawthorne v. Calef, 2 Wall., 10; The Binghampton Bridge, 3 Id., 51; Phalen v. Virginia, 8 How., 163; Osborn v. Nicholson, 13 Wall., 654; Boyce o. Sable, 18 Id., 546; Delmas v. Ins. Co., 14 Id., 661; W’ilmington etc. R. Co. v. King, 91 U. S., 3.
When either party may remove. When the controversy is between citizens of different States, the act evidently gives the right of removal to either party--to the resident party be he plaintiff or defendant, and to the non-resident party, be he plaintiff or defendant.
This act has greatly enlarged the original jurisdiction of the circuit courts, as well as the jurisdiction acquired by the removal of causes. The second section follows the language of the first section, as well as of the Constitution. By the previous acts of congress the right of removal on account of citizenship was limited to the non-resident citizen, but by the act of 1875, it is given to either party.
This provision of the act has received a recent construction by the Supreme Court, so far at least as it relates to the right of removal under the following provision of section two:
“That any suit of a civil nature at law or in equity, now pending or hereafter brought in any State court, where the matter in dispute exceeds, exclusive of costs, the sum or value of five hundred dollars * * * in which there shall be a controversy between citizens of different States * * * either party may remove said suit into the circuit court of the United States for that district." The court in construing this part of the section, say: “This we understand to mean that when the controversy about which a suit in the State court is brought is between citizens of one or more States on one side, and citizens of other States on the other side, either party to the con
troversy may remove the suit to the circuit court, without regard to the position they occupy in the pleadings as plaintiffs or defendants. For the purpose of removal the matter in dispute may be ascertained, and the parties to the suit arranged on the opposite sides of the dispute.
If in such an arrangement it appears that those on one side are all citizens of different States from those on the other, the suit may be removed. Under the old law the pleadings only were looked at, and the rights of the parties in respect to removal were determined solely according to the position they occupied as plaintiffs or defendants in the suit. Coal Co. v. Blatchford, 11 Wall., 174. Under the new law the mere form of the pleadings may be put aside, and the parties placed on different sides of the matter in dispute, according to the facts. This being done, when all those on one side desire a removal, it may be had, if the necessary citizenship exists." WAITE, C. J., in Removal Cases, 100 U. S., 457.
Mr. Justice BRADLEY, who concurred in the opinion of the court, gave a still broader interpretation of the act. He said: “I concur in the judgment in these cases, but dissent from so much of the opionion as seems to assume that one condition of federal jurisdiction, in the removal of a cause from a State court, under the first clause of section two, act of 1875, is, that each party on one side of the controversy must be a citizen of a different State from that of which either of the parties on the other side is a citizen. This portion of the act gives the right of removal to either party, in any suit in which there is a controversy between citizens of different States. In my judgment a controversy is such, as the expression is used in the Constitution and in the law, when any of the parties on one side thereof are citizens of a different State or States, from that of which any of the parties on the other side are citizens. * * * It seems to me clear that, in construing the present law, we are not bound by the construction given to the old judiciary act. The words of that act, conferring jurisdiction upon the circuit courts, in respect to citizenship, were not the same as those used by the present law or by the Constitution. It only conferred jurisdiction when the suit is between a citizen of the State where the suit is brought and a citizen of another State. The singular number only was used; and the courts in applying the law to cases in which there was a plurality of plaintiffs and defendants, construed it (perhaps unjustly) as requiring that each plaintiff and each defendant should have the citizenship required by the law. But now, it is not so. The present law follows the words of the Constitution, and gives the jurisdiction to the circuit courts in the broadest terms; namely, whenever in any suit there is a controversy between citizens of different States,' and this broad and general expression, as I think I have shown, gives jurisdiction where any of the contestants on opposite sides of the controversy are citizens of different States." Id., 479-481, (1879). See, also, Pettelon v. Noble, 7 Biss., 449.
In Girardy v. Moore, 3 Woods, 397 (1877), Justice BRADLEY held that whenever the controversy in a suit is between citizens of different States, it is within the judicial power of the federal courts, though there are other persons in the case citizens of the same State, with a person or persons on the opposite side of them; that subject to the limitation as to the amount in
controversy, the act of March 3, 1875, invests the circuit courts with jurisdiction arising from diverse citizenship of litigants, co-extensive with the judicial powers conferred upon the general government by the Constitution; that if some of the plaintiffs and some of the defendants to a suit are citizens of the same State, the removal must be sought by all the plaintiffs or by all the defendants; but if all the plaintiffs on the one hand and all the defendants on the other, are citizens of different States, then any one or more of either may remove the cause. The whole suit must be removed or no removal can take place; and that the act of 1875 does not repeal the act of 1866 (substantly the third subdivision of section 639, of the Revised Statutes), which authorizes one defendant if a citizen of another State, to separate his case from that of the other defendants, who are citizens of the State where the suit is brought, and to remove it to the circuit court. This accords with the decision of the United States Court in the foregoing case.
But parties only nominally interested cannot confer or take away the jurisdiction.
Under the judiciary act, & 12, it was held that the application for a removal need not be made by all the parties entitled to it at one time. Field o. Loronsdale, 1 Deady, 288.
A corporation may be an alien.-A corporation created under the laws of Great Britain is an alien within the meaning of the 12th section of the judiciary act [corresponding to the 2d section of the act of 1875, in this respect], and when sued by a citizen in the State court, may, on complying with the requirements of the law, have a suit removed from a State court to the circuit court. Terry v. The Imperial Fire Ins. Co., 3 Dill., 408. See, also, Louisville R. Co. v. Letson, 2 How., 497; Marshall v. The Baltimore & Ohio R. Co., 13 Id., 314; The Covington Drawbridge Co. v. Shepherd, 20 Id., 232; Railway Company v. Whilton, 13 Wall., 270; Wilmer v. The Atlanta & Richmond Air Line R. Co., 2 Woods., 447; Bird o. Cockram, Id.,
Sec. 3. Manner of removal.-- That whenever either party, or any one or more of the plaintiffs or defendants entitled to remove any suit mentioned in the next preceding section, shall desire to remove such suit from a State court to the circuit court of the United States, he or they may make and file a petition in such suit in such State court before or at the time at which said cause could be first tried, and before the trial thereof, for the removal of such suit into the circuit court to be held in the district where such suit is pending, and shall make and file therewith a bond, with good and sufficient security, for his or their entering in such circuit court, on the first day of its then next session, a copy of the record in such suit, and for paying all costs that may be awarded by the said circuit
court, if said court shall hold that such suit was wrongfully or improperly removed thereto, and also for their appearing and entering special bail in such suit, if special bail was originally requisite therein. It shall then be the duty of the State court to accept said petition and bond, and proceed no farther in such suit, and any bail that may have been originally taken shall be discharged; and the said copy being entered as aforesaid in said circuit conrt of the United States, the cause shall then proceed in the same manner as if it had been originally commenced in the said circuit court; and if in any action commenced in a State court, the title to land may be concerned, and the parties are citizens of the same State, and the matter in dispute exceeds the sum or value of five hundred dollars, exclusive of costs, the sum or valne being made to appear, one or more of the plaintiff's or defendants, before the trial, may state to the court, and make affidavit, if the court require it, that he or they claim and shall rely upon a right or title to the land 'under a grant from a State, and produce the original grant, or an exemplification of it, except where the loss of the public records shall put it out of his or their power, and shall move that any one or more of the adverse party inform the court whether he or they claim a right or title to the land under grant from some other State. The party or parties so required shall give such information, or otherwise not be allowed to plead such grant, or give it in evidence upon the trial; and if he or they inform that they do claim under such grant, any one or more of the party moving for such information may then, on petition and bond, as herein before mentioned in this act, remove the cause for trial to the circuit court of the United States next to be holden in such district; and any one of ether party removing the cause shall not be allowed to plead or give evidence of any other title than that by him or them stated as aforesaid as the ground of his or their claim, and the trial of issues of fact in the circuit courts shall, in all suits, except those of equity, and of admiralty and maritime jurisdiction, be by jury.