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authority, of which the circuit courts of the United States are given original jurisdiction by the preceding section, which may now be pending, or which may hereafter be brought in any State court, may be removed by the defendant or defendants therein to the circuit court of the United States for the proper district.

Clause 1 of § 2 of Act of March 3, 1875, as amended March 3, 1887; 24 U. S. Stats. 552; corrected Act of Aug. 13, 1888; 25 U. S. Stats. 433.

$94 a. Cases arising under the Constitution, laws or treaties.-Whenever the decision of a case depends upon the construction of the Constitution of the United States, an act of Congress, or treaty, the case may be removed if the matter in dispute exceeds five hundred dollars.1 A suit arises whenever, upon the whole record, there is a controversy involving the construction of either;2 but they must be directly and not incidentally called in question;3 and if a suit involves a Federal question, it may be removed, although other questions founded on principles of general law may be involved; and although a State is plaintiff;5 and the citizenship of the parties has nothing to do with the question. If the plaintiff is a corporation, created by an act of Congress, the case arises under the laws of Congress; but it is otherwise in the case of a national bank.8 Cases involving questions under the bankrupt act are removable; or cases under the homestead laws of the United States; 10 or under the act of Congress respecting customs and duties; but the erroneous levy of State taxes does not involve a Federal question. A suit begun by a defeated candidate for a State office, to try his right to the office, does not involve a Federal question. So where the State supreme court in the State where action is brought refuses to make the construction of the laws of another State decided by its supreme court the rule of decision, it does not involve a Federal question;11 so a case brought to enforce the contract for a royalty is not a case arising under the patent laws, unless brought against a citizen of another State praying for an injunction.15 Actions upon adverse proceedings to prevent the issuance of a patent for a mining claim are removable;16 but where the




only question is as to the local laws, rules, and regulations, the case is not removable.17 Cases arising under the laws of the United States are such as grow out of the legislation of Congress, whether they constitute the right or privilege, care or protection, or defense of a party, in whole or in part. 19 A case relating to the title of land is not one of Federal jurisdiction where rights depend on State statutes or the general principles of law; but only such as depend on a disputed construction of the Constitution and laws of the United States; 20 so a party who claims land under an act of Congress, imposing a direct tax, may remove an ejectment suit;21 but he cannot remove if he claims under a grant from the State in which suit is pending at the time. 22 Where in an action of trespass the defendant justifies the alleged trespass under authority of a court and the laws of the United States, the cause is removable. 23 A case to be removable as 66 arising under" the Federal Constitution and laws, must actually involve some question depending on the correct construction thereof; and it must appear that it is so involved, what it is, and how it arises.25 Where it appears from the case made by the complaint that it arises under an act of Congress, the right of removal by the defendant is not lost by reason of insufficient denials in the answer. 26 A case is removable whenever rights of the parties are alleged to depend on the Federal statute, though set up by way of defense, and though other than Federal questions enter into the controversy.27 Where it appears that a case involves a Federal question, and has not so far progressed as to its pleadings as to be triable, it is removable, although the pleadings might have been made up at an earlier term of the State court, and the case put in a position for a trial there. 28 A suit on a United States marshal's bond is a suit arising under the Federal laws, which is removable, 29 without regard to the citizenship of the parties. 30 An action by a deputy marshal against his principal, for fees due him, is not removable.31 Where the defendant is sued, not in his official capacity, for a trespass, and sets up that he was a United States marshal and acted officially in making the alleged seizure, “if any seizure actually occurred," no case is presented which involves a construction of a Federal statute, and which therefore, is removable.

A United States marshal was sued for the trespass of his deputy in seizing goods, under a writ of attachment issuing out of the Federal court. Defendant justified by his process. Held, a suit arising under the laws of the United States, and therefore removable.33 The power of a State to tax a franchise of a corporation, derived through an act of Congress, is a question arising under the laws of the United States, and removable.34 Cases affecting rights and titles claimed under commissions held and authority exercised under the United States are removable. 35 A suit between citizens of the same State, for money due on a contract for the sale of patent rights, not involving the validity or construction of the patent, is not removable. A suit by the State's vendee of swamp land, to enjoin the commission of a nuisance on the land, if it includes the question whether the land was within the Federal grant to the State, involves a Federal question, and is removable.37 The United States Revised Statutes, section 3477, prohibits the assignment of claims against the United States. A. recovered a judgment in the court of claims, and B. brought suit to subject A.'s interest to the satisfaction of a judgment held by him against A. Held, that a Federal question justifying a removal to the Federal court was involved, to wit, the construction of sec. 3477.38 38 In a suit for an injunction to restrain the running of ferries in violation of the plaintiff's exclusive rights, defendant denied that he was operating a ferry, but averred that he was engaged as a common carrier on navigable waters, and that his boats were duly enrolled and licensed under the Federal law. It was held that no Federal question giving a right to a removal was shown. 39 Where a question of whether a State statute impairs the obligation of contracts is involved in doubt, the United States circuit court may refuse to take jurisdiction by removal of the suit from the State court, as such refusal will not impair the remedy of invoking the decision of the United States Supreme Court, on error to the supreme court of the State. 40 Where the defense made by a railroad corporation to a suit brought by a state for unjust discrimination in the carriage of freight, in violation of the State law, is based upon the ground of the conflict of the State law with the rights of the corporation as conferred by its


charter, a constitutional question is presented, and the case is removable to the Federal court. 41 A suit under the laws of Virginia, for identification of coupons tendered in payment of taxes, is not a suit under the laws of the United States. 42 A case involving the constitutionality of the Kansas prohibition against the manufacture and sale of intoxicating liquors, being within previous decisions of the United States Supreme Court, does not present a Federal question within the removal acts.43 Facts stated, showing vested property rights in defendant, which an injunction issued out of the State court, for the violation of a State prohibitory liquor law, passed since defendant's rights vested, would destroy, raise a Federal question removable to the Federal court.44 Corporations organized under acts of Congress, are entitled to remove suits against them as suits arising under the laws of the United States. 45 A Federal corporation, consolidated with a State corporation, may remove on this ground. 46 Prior to 1882, national banks might remove causes on this ground, as other Federal corporations may, but by the Act of 1882, and repeated in the Act of 1887, "national banks are deemed citizens of the States where they are located," and cannot so remove. 43 Where 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 is one arising under the Constitution or laws of the United States.49 Where defendant claimed ownership in land under a State statute subsequently repealed by a statute which impaired the obligation of contracts, a Federal question is presented, and a disclaimer of reliance upon the repealing act does not eliminate the issue. 50 Where a demurrer to a rejoinder in effect denies the validity of a law as impairing the obligation of a contract, a Federal question is raised. 51 So a claim that a State statute gives priority to certain judgments over mortgage liens presents such Federal question.52 An action founded on the official bond of a United States marshal, his sureties being joined, and the acts complained of being charged to be breaches of its condition, arises under a United States law. 53 A suit to determine the right to the possession of a lode mining claim, and as to

who has the right to a patent to the same, arises under the laws of the United States. 5+ A petition for removal, alleging that both parties in ejectment claim to be cestuis que trust under United States Revised Statutes, sec. 2387, under different deeds issued by the trustee of a town lot, shows a case arising under the laws of the United States, 55 In order to remove a cause under the Act of 1887, on the ground that it arises under a United States statute, the record must affirmatively show that a disputed construction of the statute will arise. 56

1 Gold Washing & W. Co. v. Keyes, 96 U. S. 199; Woolridge v. McKenna, 8 Fed. Rep. 650; Connor v. Scott, 4 Dill. 242; New Orleans, M. & T. R. Co. v. Mississippi, 102 U. S 135.

2_Cohens v. Virginia, 6 Wheat. 234; Mayor of N. Y. v. Cooper, 6 Wall. 217; Tennessee v. Davis, 100 U. S. 275; Van Allen v. Atchison, C. & P. R. Co., 3 Fed. Rep. 515; Hatch v. Wallamet Iron B, Co., 11 The Reporter, N. S. 630; N. O. etc Railroad v. Mississippi, 102 U. S. 135; Gold Wash. & W. Co. v. Keyes, 96 U. S. 201; Connor v. State, 4 Dill. 242; Woolridge v. MoKenna, 8 Fed. Rep. 650.

3 State v. Bowen, 8 Rich. N. S. 332.

4 Connor v. Scott, 4 Dill. 242.

5 New Orleans, M. & T. R. Co. v. State, 13 Ch. L. N. 93.

6 Wilder v. Union Nat. Bank, 12 Ch. L. N. 75.

7 Osborn v. Bank of U. S., 9 Wheat. 733; U. P. R. Co. v. Macomo, 1 Fed. Rep. 799; Gold Wash. Co. v. Keyes, 96 U. S. 199, distinguished: Railroad Co. v. Mississippi, 102 U. S. 135.

8 Pettilon v. Noble, 7 Biss. 449.

9 Connor v. Scott, 4 Dill. 242; Houser v. Clayton, 3 Woods, 273; Hebert v. Lefevre, 31 La. An. 363; Payson v. Dietz, 5 Ch. L. N. 434; Wehl v. Wald, 18 Blatchf, 163; Woolridge v. McKenna, 8 Fed. Rep. 650.

10 Van Allen v. Atchison, C. & P. R. Co., 3 Fed. Rep. 545.

11 Orner v. Saunders, 3 Dill. 234.

12 Berger v. Douglas Co., 5 Fed. Rep. 23.

13 Dubuclet v. State, 103 U. S. 150.

14 Wiggins v. Chicago & A. R. Co., 11 Fed. Rep. 381.

15 Root v. Lake Shore & Mich. S. R. Co., 11 Fed. Rep. 349.

16 Frank. G. & S. M. Co. v. Larimer M & S. Co., 12 Fed. Rep. 724.

17 Trafton v. Nougues, 4 Sawy. 178.

18 Railroad Co. v. Mississippi, 102 U. S. 135.

19 McStay v. Friedman, 92 U. S. 723; Romie v. Cassanova, 91 U. S. 380; Trafton v. Nougues, 4 Sawy. 178.

20 Trafton v. Nougues, 4 Sawy. 178.

21 Peyton v. Bliss, 1 Woolw. 170.

22 Shepherd v. Young, 1 Mon. 203.

23 Houser v. Clayton, 3 Woods, 273.

24 Carson v. Dunham, 121 U. S. 421; New Orleans v. Sexias, 35 La. An. 36.

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