"Therefore, Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the Baltimore and Potomac Railroad Company, incorporated by the said Act of the General Assembly of Maryland, shall be, and they are hereby, authorized to extend into and within the District of Columbia, a lateral railroad, such as the said company shall construct or cause to be constructed, in a direction towards the said District, in connection with the railroad which they are about to locate and construct from the City of Baltimore to the Potomac River, in pursuance of their said Act of incorporation; and the said Baltimore and Potomac Railroad Company are hereby authorized to exercise the same powers, rights, and privileges, and shall be subject to the same restrictions in the extension and construction of the said lateral railroad into and within the said District as they may exercise or are subject to, under and by intent of their said charter or Act of incorporation, in the extension and construction of any railroad within the State of Maryland; and shall be entitled to the same rights, compensation, benefits, and immunities, in the use of the said road, and in regard thereto, as are provided in their said charter, except the right to construct any lateral road or roads within the said District, from the said lateral branch or road hereby authorized; it being expressly understood that the said Baltimore and Potomac Railroad Company shall have power only to construct from the said Baltimore and Potomac Railroad one lateral road within the said District to some point or terminus within the City and County of Washington, to be determined in the manner hereinafter mentioned."

the said Baltimore and Potomac Railroad to the | Mary's River, with such branches at any point District of Columbia: of said railroad, not exceeding twenty miles in length, as the said president and directors may determine. The said road when completed not to be more than sixty-six feet wide, except at or near its depots or stations, where the width may be made greater, with as many tracks as the president and directors may deem necessary; and the said president and directors may cause to be made, or may contract with others for making, said railroad or any part of of it, and they or their agents, or those with whom they may contract or their agents, may enter upon and use and excavate any lands which may be wanted for the site of said road or the erection of warehouses or other works necessary for the said road or for its construction and repair; and that they may build bridges, fix scales and weights, lay rails, may take and use earth, gravel, stone, timber, or other materials which may be needed for the construction and repair of the said road or any of its works, and may make and construct all works whatever which may be necessary and expedient in order to the proper completion and maintenance of the said road, and they may make, or cause to be made, lateral railways in any direction whatever from the said railroad, and for the construction, repair and maintenance thereof shall have all the rights and powers hereby given in order to the construction and repair of said principal railroad, and may also own and employ steamboats or other vessels to connect the said railroad or railroads with other points by water communication: Provided, Nothing herein contained shall be construed to authorize the said company to take private property for their use without compensation agreed upon by the company and the owners, thereof, or awarded by a jury, as hereinafter provided, being first paid or tendered to the party entitled to receive such compensation."

By section 3 it was provided that the company in passing into the District aforesaid, and constructing the said road within the same, shall enter the City of Washington at such Stat. at L. 1, 2), it was declared that the BalBy Act of Congress of March 18, 1869 (16 place, and shall pass along such public street, timore and Potomac Railroad Company "may or alley, to such point or terminus within the enter the City of Washington with their said said city as may be allowed by Congress, upon railroad and construct the same within the presentation of survey and map of proposed limits of said city on and by whichever one of focation of said road: Provided, That the level of said road within the said city shall conform the two routes herein designated the said comto the present graduation of the streets, unless pany may elect and determine upon;" and by the Act of March 25, 1870 (16 Stat. at L. 78, Congress shall authorize a different level." The twelfth section of the Act of the Legis-2, a modification of the second of these two lative Assembly of Maryland, referred to in the routes was authorized. The terminal point in above mentioned Act of Congress (Laws, Mary- tion of South C and West Ninth Streets. each was described as a point at the intersecland, 1853, p 234), reads thus:

"SEC. 12. And be it enacted, That the president and directors of the said company shall be, and they are hereby, invested with all the rights and powers necessary to the construction, working, use, and repair of a railroad from some suitable point in or near the City of Baltimore, and thence within one mile of the Town of Upper Marlboro, in Prince George's County, and as near to said town, within the limits of said distance, as may be practicable, and by or near the Town of Port Tobacco in Charles County, to a point on the Potomac River, to be selected by the president and directors of said company hereby incorporated, not higher up than Liverpool Point, and not lower down than the mouth of St.

The company made choice of the second of the projected routes, commencing on the western shore of the Eastern Branch, between South L and South M Streets, and thence passing through K Street and Virginia Avenue to the terminal point on Ninth Street.

By Act of June 21, 1870 (16 Stat. at L. 161), Congress enacted "that the Baltimore and Potomac Railroad Company be, and they are hereby, authorized and empowered to extend their lateral branch, authorized by the Act to which this is a supplement, and by former supplements to said Acts, by the way of Maryland Avenue, conforming to its grade, to the viaduct over the Potomac River at the City of Washington, known as the Long Bridge, and to extend their tracks over said bridge, and connect

with any railroads, constructed or that may statute of, or an authority exercised under, hereafter be constructed, in the State of Vir- the United States, and the decision is against ginia," the Act authorizing the railroad com- their validity; secondly, where is drawn in pany, to effect these purposes, to take possession question the validity of a statute of, or an auof and use the bridge free of cost and maintain thority exercised under, any State, on the the same, etc. By virtue of the authority ground of their being repugnant to the Constigranted by this Act the railroad extended its tution, treaties, or laws of the United States, "lateral branch to the Potomac River from and the decision is in favor of such their vaNinth Street south, by way of Maryland Ave-lidity; thirdly, where is drawn in question the enue; and it was further authorized by Act of construction of any clause of the Constitution, March 3, 1871 (16 Stat. at L. 585), in making or of a treaty, or statute of, or commission this extension, to change the grade of Maryland held under, the United States, and the decision Avenue from Twelfth Street to the Long is against the title, right, privilege, or exempBridge in the manner specified in that Act, un- tion specially set up or claimed by either party, der the supervision of the municipal authorities under such clause of the said Constitution, of Washington. treaty, statute or commission. 1 Stat. at L. 73, 85.

The Act of Congress of May 21, 1872 (17 Stat. at L. 140), relating to the establishment of the passenger depot of the company at Sixth and B Streets, makes mention of no streets or avenues except B Street and Sixth Street and Virginia Avenue.

Messrs. Samuel Maddox and S. S. Henkle, for defendant in error, in support of motion:

The plaintiff below claimed $5,000, but the amount in controversy, as to the defendant, is fixed by the judgment.

Walker v. U. S. 71 U. S. 4 Wall. 164 (18:319). No federal question is made in the record. This court will not go outside of it, to the opinion or elsewhere, to ascertain whether one was in fact decided.

Moore v. Miss. 88 U. S. 21 Wall. 639 (22: 654) Rector v. Ashley, 73 U. S. 6 Wall. 142 (18:733); Walker v. Villavaso, 73 U. S. 6 Wall. 128 (18: 854); Millingar v. Hartupee, 73 U. S. 6 Wall. 261 (18: 829); Merced Mining Co. v. Boggs, 70 U. S. 3 Wall. 304 (18: 245); Murdock v. Memphis, 87 U. S. 20 Wall. 628 (22: 441),

Mr. Enoch Totten, for plaintiff in error, in opposition:

Statutory authority to build and conduct a railroad includes the authority to build turnouts or side tracks, turntables, switches, depots, etc., those permanent and irremovable appendages which constitute parts of the complete

structure.

Lake Superior & M. R. Co. v. U. S. 93 U. S. 453-4 (23:971) Rock Creek Twp. v. Strong, 96 U. S. 276 (24:815).

The decision of this court in Dupasseur v. Rochereau, 88 U. S. 21 Wall. 134 (22:590), seems to be decisive of the question of jurisdiction presented here.

See also Embry v. Palmer, 107 U. S. 9 (27: 348); Day v. Gallup, 69 U. S. 2 Wall. 97 (17: 855); Verden v. Coleman, 66 U. S. 1 Black, 472 (17:161); Chicago L. Ins. Co. v. Needles, 113 U. S. 574 (28:1084); Balt. & O. R. Co. v. Md. 88 U. S. 21 Wall. 456 (22:678); McGuire v. Mass. 70 U. S. 3 Wall. 382, 387 (18:164, 165); Hall v. Jordan, 82 U. S. 15 Wall. 393 (21:72).

Mr. Chief Justice Fuller delivered the opinion of the court:

Appellate jurisdiction was conferred on this court by the 25th section of the Judiciary Act of 1789, over final judgments and decrees in any suit in the highest court of law or equity of a State in which a decision in the suit could be had, in three classes of cases: First, where is drawn in question the validity of a treaty, or

By the second section of the Act of February 5, 1867 (14 Stat. at L. 385, 386), this original 25th section was re-enacted with certain changes, and among others the words "or where is drawn in question the construction of any clause of the Constitution, or of a treaty, or statute of, or commission held under, the United States, and the decision is against the title, right, privilege, or exemption specially set up or claimed by either party, under such clause of the said Constitution, treaty, statute or commission," were made to read "or where any title, right, privilege, or immunity is claimed under the Constitution, or any treaty or statute of, or commission held, or authority exercised under the United States, and the decision is against the title, right, privilege, or immunity specially set up or claimed by either party under such Constitution, treaty, statute, commission, or authority," and this was carried into section 709 of the Revised Statutes.

The Act of Congress entitled "An Act Regulating Appeals From the Supreme Court of the District of Columbia and the Supreme Courts of the Several Territories," approved March 3, 1885 (23 Stat at L. 443), provides:

"That no appeal or writ of error shall hereafter be allowed from any judgment or decree in any suit at law or equity in the Supreme Court of the District of Columbia, or in the Supreme Court of any of the Territories of the United States, unless the matter in dispute, exclusive of costs, shall exceed the sum of five thousand dollars.

"SEC. 2. That the preceding section shall not apply to any case wherein is involved the validity of any patent or copyright, or in which is drawn in question the validity of a treaty or statute of or an authority exercised under the United States; but in all such cases an appeal or writ of error may be brought without regard to the sum or value in dispute."

When the validity of a statute of, or authority exercised under, the United States is drawn in question in a state court, the decision of the latter must be against its validity in order to justify a review of such decision; but under this Act it is sufficient if the validity is drawn in question irrespective of the conclusion reached. So that the inquiry is confined to whether the validity of such a statute or authority is actually controverted.

In Dupasseur v. Rochereau, 88 U. S. 21 Wall. 130, 134 [22: 588, 590], Mr. Justice Bradley, delivering the opinion of the court, says:

word "authority" stands
upon
the same footing
with "treaty" or "statute;" and said the court,
through Chief Justice Chase:

"Something more than a bare assertion of
such an authority seems essential to the juris-
diction of this court. The authority intended
by the Act is one having a real existence, de
If a different construction had been intended,
rived from competent governmental power.
Congress would doubtless have used fitting
tion in cases of decisions against claims of au-
words. The Act would have given jurisdic-
thority under the United States."
cases the question of the existence of an au-
tion of its validity that the court will not un-
thority is so closely connected with the ques-
dertake to separate them, and in such cases the

"Where a state court refuses to give effect to the judgment of a court of the United States rendered upon the point in dispute, and with jurisdiction of the case and the parties, a question is undoubtedly raised which, under the Act of 1867, may be brought to this court for revision. The case would be one in which a a title or right is claimed under an authority exercised under the United States, and the decision is against the title or right so set up. It would thus be a case arising under the laws of the United States establishing the circuit court and vesting it with jurisdiction." This is so because a claim of right or title under an authority exercised under the United States was sufficient to give jurisdiction under that Act; whereas, the Act of 1885 does not so provide, but only that the validity of the authority must be drawn in question. The distinction is pal-question of jurisdiction will not be considered pable between a denial of the validity of the authority and a denial of a title, right, privilege, or immunity claimed under it.

"In many

apart from the question upon the merits, or except upon hearing in regular order. But where, as in this case, the single question is not of the That part of original section 25, and of the validity but of the existence of an authority, Act of 1867, as to decisions in favor of the va- could have been, no decision in the state court and we are fully satisfied that there was, and lidity of a statute of, or of an authority exer- against any authority under the United States cised under, any State, when drawn in ques-existing in fact, and that we have, therefore, tion on the ground of their being repugnant to the Constitution, treaties, or laws of the United States, has been frequently passed upon, and

no jurisdiction of the case brought here by writ of error, we can perceive no reason for retaining it upon the docket."

the distinction between the construction of a statute, or the extent of an authority, and the So in Lewis v. Campau, 70 U. S. 3 Wall. 106. validity of a statute, or of an authority, pointed [18: 211], where the final judgment of the highout. Thus in Commercial Bank v. Bucking- est court of law and equity in the State of ham, 46 U. S. 5 How. 317 [12: 169], where a Michigan was that the revenue stamps attached general law had declared all banks liable to to a deed offered in evidence and objected to pay six per cent interest on their notes, when as not having stamps proportioned to the value they had refused payment on demand, and a of the land conveyed, were sufficient, was held subsequent Act, incorporating the bank in not a subject for review by this court under the question, provided for the payment of twelve 25th section of the Judiciary Act; and in per cent, and the question was whether the Merced Min. Co. v. Boggs, 70 U. S. 3 Wall. 304, bank was liable to pay eighteen, this court 310 [18: 245, 247] which was an action of ejectheld that the question submitted to and decided ment brought for the possession of certain minby the state court was one of construction and eral lands in California, where the defendant. not of validity. There both the prior and sub-contended that he was in possession by virtue sequent statutes were admitted to be valid under any construction of them, "And therefore no construction placed by the state court on either of them could draw in question its validity, as being repugnant to the Constitution of the United States, or any Act of Congress." Bridge Proprietors v. Hoboken Co. 68 U. S. 1 Wall. 116, 144 [17:571, 576].

of an authority inferred from the general policy of the United States in relation to mines of gold and silver, Chief Justice Chase, speaking for the court, in dismissing the writ of error, said:

"The decision was, that no such license existed; and this was a finding by the court of a In Lawler v. Walker, 55 U. S. 14 How. 149 question of fact upon the submission of the [14: 364], where, in 1816, the Legislature of whole case by the parties, rather than a judg Ohio had passed an "Act to prohibit the issu- ment upon a question of law. It is the same ing and circulation of unauthorized bank case, in principle, as would be made by an alpaper," and, in 1839, an Act amendatory there-legation in defense to an action of ejectment, of of, and the question arose whether or not a canal company, incorporated in 1837, was subject to these Acts, it was held that the Supreme Court of Ohio, in deciding that it was, gave a construction to an Act of Ohio, which neither of itself nor by its application involved in any way a repugnancy to the Constitution of the United States, by impairing the obligation of a contract."

ment of its loss or destruction, and a finding by a patent from the United States with an averthe jury that no such patent existed, and a consequent judgment for the defendant (plaintiff). only Such a judgment would deny, not the validity, would have no jurisdiction to review it." but the existence of the patent. And this court

Whenever the power to enact a statute as it is by its terms, or is made to read by construc tion, is fairly open to denial and denied, the validity of such statute is drawn in question, but not otherwise.

In Millingar v. Hartupee, 73 U. S. 6 Wall. 258, 262 [18: 829, 830], it was held that the

In Gill v. Oliver, 52 U. S. 11 How. 529 [13: 799], under a treaty between the United States and Mexico a sum of money was awarded to be paid to the members of the Baltimore Mexican Company, and the proceeds of one of the shares of this company were claimed by two parties, and the judgment of the Court of Appeals of Maryland as to which of the claimants was entitled to the money was held not reviewable by

this court. Williams v. Oliver, 53 U. S. 12 How. 111 [13: 915].

distinctly averred in the pleading or appear affirmatively in some other part of the record.

than the one in which the plaintiff was a citizen.

2. A case is not removable from the state court The case at bar does not involve the exercise unless it appears affirmatively in the petition for of an authority under the United States, in the removal, or in the record, that at the commencesense of an authority to act for the Government of the action, and also when the removal was asked, the defendants were citizens of another State ment; but it is claimed that the railroad company acted under certain statutes of the United States authorizing such action, and that the validity of these statutes, or of authority under them, was denied.

3. Where the petition for removal does not allege the citizenship of the parties except at the date when it was filed, and it is not shown elsewhere in the record that defendants were, at the commencement of the action, citizens of a State other than the one of which the plaintiff was, at that date, a citizen, this court cannot consider the merits of the

case.

[No. 190.]

Argued March 11, 1889. Decided April 1, 1889.

But the Supreme Court of the District of Columbia did not deny the right of the defendant company to use its tracks in Washington 4. In such case the judgment will be reversed, on on Maryland Avenue between Ninth and the ground that the circuit court had no jurisdicTenth Streets, in a lawful manner, for the pur-rections to send it back to the state court. tion, and the case remanded to that court, with dipose of transacting its lawful business; but, on the contrary, the jury was instructed that the plaintiff was not entitled to recover for any annoyances, discomforts, or inconveniences, which resulted from such uses of Maryland Avenue by the railroad company "as were reasonably incident to the careful conduct of its through business, and to the maintenance and careful use of its freight depot or station abutting on the south side of said avenue between said Ninth and Tenth Streets southwest," and the lawful uses to which the street might be put by the railroad company were clearly explained.

IN ERROR to the Circuit Court of the United States for the Western District of Missouri, to review a judgment against defendant below in an action to recover amounts due on subscriptions of stock and to have such amounts applied upon a judgment against the corporation. Reversed.

Statement by Mr. Justice Harlan:

This action was commenced on the 25th day of July, 1881, in one of the Courts of Missou ri, by the defendant in error against the Texas and Atlantic Refrigerator Car Company, a corporation of that State, Robert S. Stevens, and Henry D. Mirick. Its object was to reach, and have applied, in satisfaction of a judgment obtained by the plaintiff against the car company, the several amounts due from Stevens and Mirick on their subscriptions of stock in that company.

The jury were told that all stoppage of trains and shifting of cars necessary for carrying cars out of its freight depot over the different tracks for the purpose of making up freight trains were lawful. The right of the railroad company to establish freight stations or to lay as many tracks "as its president and board of directors might deem necessary" was not questioned. But the court also held that the comStevens and Mirick filed a joint petition for pany was not justified in occupying the public the removal of the case into the Circuit Court streets for the purposes of a freight yard as of the United States, upon the ground of the such, because the various statutes bearing up- diverse citizenship of the parties. The allegaon the matter did not authorize such occupation in the petition was that the plaintiff "is a tion, with which conclusion we are inclined to agree, though we forbear a determination of the point until presented in a case properly pending before us. The validity of the statutes, and the validity of authority exercised under them, are, in this instance, one and the same thing; and the validity of a statute," as these words are used in this Act of Congress, refers to the power of Congress to pass the par ticular statute at all, and not to mere judicial construction as contradistinguished from a denial of the legislative power. In our opinion the validity of no Act of Congress, or authority under the United States, was so drawn in question here as to give us jurisdiction, and therefore, as the amount of the judgment did not exceed five thousand dollars,

The writ of error must be dismissed.

ROBERT S. STEVENS, Piff. in Err.,

v.

WILLIAM NICHOLS.

(See S. C. Reporter's ed. 230-232.)

Jurisdiction dependent on citizenship - Case when removable-defective allegation. manding case to state court.

-re

citizen of the State of Missouri," and that the defendants "are not citizens of the State of Missouri, but are citizens of the State of New York."

The state court made an order for the removal of the case to the Circuit Court of the United States. In the latter court the necessary pleadings having been filed, the case was tried, resulting in a verdict and judgment against Stevens for the sum of $5,027.33, and against Mirick for the sum of $627.41. The court having overruled a motion for new trial, and also a motion in arrest of judgment, Stevens has brought the case here for review.

No question was made in the court below or in this court as to the right of Stevens and Mirick to remove the case from the state court.

Messrs. A. H. Garland and James Carr, for plaintiff in error:

If the court had no jurisdiction over the person or subject matter, its judgment and orders are regarded as nullities.

Thompson v. Whitman, 85 U. S. 18 Wall. 457 (21: 897); Knowles v. Logansport Gaslight & Coke Co. 86 U. S. 19 Wall. 58 (22: 70); Hall v. Lanning, 91 U. S. 160 (23: 271); Christmas v. Russell, 72 U. S. 5 Wall. 305 (18:479); Elliott 1. Upon writ of error from the Circuit Court of v. Peirsol, 26 U. S. 1 Pet. 328 (7:164); Re Sawthe United States, in cases where jurisdiction depends upon the citizenship of the parties, such citi-yer, 124 U. S. 200 (31: 402); Williams v. Whitzenship or the facts which constitute it, should be lock, 14 Mo. 552.

2 Kent, Com. SS 275, 305; Cooley, Const. New Jersey tax law-impairment of contract-Lim. $237; Cooley, Taxn. 494, 688 f; Dill. Mun. Corp. $$ 36, 40f and notes, and $114.