# State of Tennessee v. Union Planters' Bank Same/Opinion of the Court

* Court Documents
* Case Syllabus
* Opinion of the Court
* Dissenting Opinion Harlan
United States Supreme Court
152 U.S. 454
State of Tennessee v. Union Planters' Bank Same
We find it unnecessary to consider other objections to the maintenance of these three bills, or of any of them, because we are clearly of opinion that each suit is not one arising under the constitution and laws of the United States, of which the circuit court of the United States has jurisdiction, either original, or by removal from a state court, under the act of March 3, 1887, c. 373, as corrected by the act of August 13, 1888, c. 866 (25 Stat. 434).
The third article of the constitution, said Chief Justice Marshall, 'enables the judicial department to receive jurisdiction to the full extent of the constitution, laws, and treaties of the United States, when any question respecting them shall assume such a form that the judicial power is capable of acting on it. That power is capable of acting only when the subject is submitted to it by a party who asserts his rights in the form prescribed by law. It then becomes a case, and the constitution declares that the judicial power shall extend to all cases arising under the constitution, laws, and treaties of the United States.' And 'when a question to which the judicial power of the Union is extended by the constitution forms an ingredient of the original cause, it is in the power of congress to give the circuit courts jurisdiction of that cause, although other questions of fact or of law may be involved in it.' But 'the right of the plaintiff to sue cannot depend on the defense which the defendant may choose to set up. His right to sue is anterior to that defense, and must depend on the state of things when the action is brought. The questions which the case involves, then, must determine its character, whether those questions be made in the cause or not.' Osborn v. Bank, 9 Wheat. 738, 819, 823, 824. In this last clause, as the context shows, the word 'then' (though printed between commas) means 'at that time;' that is to say, 'when the action is brought.'
The earliest act of congress which conferred on the circuit courts of the United States general jurisdiction of suits of a civil nature, at common 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,' was the act of March 3, 1875, c. 137 (18 Stat. 470). Under section 1 of that act, providing that those courts should have original cognizance of such suits when the matter in dispute exceeded the sum or value of $500, their jurisdiction was exercised in cases in which the plaintiff's statement of his cause of action showed that he relied on some right under the constitution or laws of the United States. Feibelman v. Packard, 109 U.S. 421, 3 Sup. Ct. 289; Kansas Pac. R. Co. v. Atchison, T. & S. F. R. Co., 112 U.S. 414, 5 Sup. Ct. 208; New Orleans v. Houston, 119 U.S. 265, 7 Sup. Ct. 198; Bachrack v. Norton, 132 U.S. 337, 10 Sup. Ct. 106; Cooke v. Avery, 147 U.S. 375, 13 Sup. Ct. 340. And under section 2 of that act, which provided that any suit of a civil nature, at law or in equity, brought in any state court, 'and arising under the constitution or laws of the United States, or treaties made or which shall be made under their authority,' might be removed by either party into the circuit court of the United States, it was held sufficient to justify a removal by the defendant that the record at the time of the removal showed that either party claimed a right under the constitution or laws of the United States. Railroad Co. v. Mississippi, 102 U.S. 135; Ames v. Kansas, 111 U.S. 449, 462, 4 Sup. Ct. 437; Brown v. Houston, 114 U.S. 622, 5 Sup. Ct. 1091; Society v. Ford, 114 U.S. 635, 642, 5 Sup. Ct. 1104; Pacific Railroad Removal Cases, 115 U.S. 1, 5 Sup. Ct. 1113; Tennessee v. Whitworth, 117 U.S. 129, 139, 6 Sup. Ct. 645; Southern Pac. R. Co. v. California, 118 U.S. 109, 6 Sup. Ct. 993; Bock v. Perkins, 139 U.S. 628, 11 Sup. Ct. 677.
But, as has been decided under that act, 'the suit must be one in which some title, right, privilege, or immunity on which the recovery depends will be defeated by one construction of the constitution, or a law or treaty of the United States, or sustained by a contrary construction.' Carson v. Dunham, 121 U.S. 421, 427, 7 Sup. Ct. 1030. 'A cause cannot be removed from a state court simply because, in the progress of the litigation, it may become necessary to give a construction to the constitution or laws of the United States.' Water Co. v. Keyes, 96 U.S. 199, 203. And 'the question whether a party claims a right under the constitution or laws of the United States is to be ascertained by the legal construction of its own allegations, and not by the effect attributed to those allegations by the adverse party.' Central R. Co. v. Mills, 113 U.S. 249, 257, 5 Sup. Ct. 456.
Even under the act of 1875, the jurisdiction of the oircuit court of the United States could not be sustained over a suit originally brought in that court, upon the ground that the suit was one arising under the constitution, laws, or treaties of the United States, unless that appeared in the plaintiff's statement of his own claim. This was distinctly adjudged, and the reasons clearly stated, in Metcalf v. Watertown, 128 U.S. 586, 589, 9 Sup. Ct. 173, in which Mr. Justice Harlan, after pointing out that the cases in which it had been held sufficient that the federal question upon which the case depended was first presented by the answer or plea of the defendant were cases of removal, in which, therefore, the requisite of jurisdiction appeared on the record at the time when the jurisdiction of the circuit court of the United States attached, said: 'Where, however, the original jurisdiction of a circuit court of the United States is invoked upon the sole ground that the determination of the suit depends upon some question of a federal nature, it must appear, at the outset, from the declaration or the bill of the party suing, that the suit is of that character; in other words, it must appear, in that class of cases, that the suit was one of which the circuit court, at the time its jurisdiction is invoked, could properly take cognizance. If it does not so appear, then the court, upon demurrer or motion, or upon its own inspection of the pleading, must dismiss the suit, just as it would remand to the state court a suit which the record, at the time of removal, failed to show was within the jurisdiction of the circuit court. It cannot retain it in order to see whether the defendant may not raise some question of a federal nature upon which the right of recovery will finally depend; and, if so retained, the want of jurisdiction, at the commencement of the suit, is not cured by an answer or plea which may suggest a question of that kind.' That view has been affirmed and acted on at the present term in Mining Co. v. Turck, 150 U.S. 138, 143, 14 Sup. Ct. 35.
The same rule applies, more comprehensively, to the acts of 1887 and 1888. In section 1, as thereby amended, the words giving original cognizance to the circuit courts of the United States in this class of cases are the same as in the act of 1875 (except that the jurisdictional amount is fixed at $2,000), and it is therefore essential to their jurisdiction that the plaintiff's declaration or bill should show that he asserts a right under the constitution or laws of the United States. But the corresponding clause in section 2 allows removals from a state court to be made only by defendants, and of suits 'of which the circuit courts of the United States are given original jurisdiction by the preceding section;' thus limiting the jurisdiction of a circuit court of the United States on removal by the defendant, under this section, to such suits as might have been brought in that court by the plaintiff under the first section. 24 Stat. 553; 25 Stat. 434. The change is in accordance with the general policy of these acts, manifest upon their face, and often recognized by this court, to contract the jurisdiction of the circuit courts of the United States. Smith v. Lyon, 133 U.S. 315, 320, 10 Sup. Ct. 303; In re Pennsylvania Co., 137 U.S. 451, 454, 11 Sup. Ct. 141; Fisk v. Henarie, 142 U.S. 459, 467, 12 Sup. Ct. 207; Shaw v. Mining Co., 145 U.S. 444, 449, 12 Sup. Ct. 935; Gerling v. Railroad Co., 151 U.S. 673, 687, 14 Sup. Ct. 533.
Congress, in making this change, may well have had in mind the reasons which so eminent a judge as Mr. Justice Miller invoked in support of his dissent from the original decision that a defense under the constitution, laws, or treaties of the United States was sufficient to justify a removal by the defendant under the act of 1875. 'Looking,' said he, 'to the reasons which may have influenced congress, it may well be supposed that, while that body intended to allow the removal of a suit where the very foundation and support thereof was a law of the United States, it did not intend to authorize a removal where the cause of action depended solely on the law of the state, and when the act of congress only came in question incidentally as part (it might be a very small part) of the defendant's plea in avoidance. In support of this view it may be added that he, in such case, is not without remedy in a federal court; for, if he has pleaded and relied on such defense in the state court, and that court has decided against him in regard to it, he can remove the case into this court by writ of error, and have the question he has thus raised decided here.' Railroad Co. v. Mississippi, 102 U.S. 135, 144.
The acts of 1887 and 1888, indeed, contain special provisions as to particular kinds of cases arising under the constitution or laws of the United States. By section 3, every receiver or manager of property appointed by a court of the United States is permitted to be sued without the previous leave of that court, but the suit is subject to its general equity jurisdiction, so far as necessary to the ends of justice. By section 5, nothing in this act is to repeal or affect any jurisdiction or right mentioned in sections 641-643, 722, or title 24 of the Revised Statutes, or the act of March 1, 1875, c. 114, all of which relate to suits concerning civil rights; and section 643 relates also to the removal of suits against officers or other persons acting or claiming under any revenue law of the United States; or in the act of March 3, 1875, c. 137, § 8, which relates to notice to absent defendants in suits to enforce or to remove liens. And section 6 expressly repeals section 640 of the Revised Statutes, which authorized any suit commenced in a state court against any corporation other than a banking corporation organized under a law of the United States to be removed into the circuit court of the United States upon the petition of the defendant stating that it had a defense arising under or by virtue of the constitution, or of any treaty or law of the United States. 24 Stat. 554, 555; 25 Stat. 436. But those provisions have no application to the cases now before us, and contain, to say the least, nothing tending to show that it was intended that such a case as any of these might be removed into the circuit court of the United States for trial.
The difference between the act of March 3, 1875, and the later acts is illustrated by the recent case of Railroad Co. v. Cox, in which receivers, appointed by a circuit court of the United States, of a railroad corporation deriving its corporate powers from acts of congress, were sued in the same court, without previous leave of the court, after the act of 1887 took effect. This court, speaking by the chief justice, after observing that the corporation would have been entitled, under the act of 1875, to remove a suit brought against it in a state court, maintained the jurisdiction of the circuit court of the United States of the action against the receivers, under the act of 1887, upon the ground that the right to sue, without the leave of the court which appointed them, receivers appointed by a court of the United States, was conferred by section 6 of that act, and therefore the suit was one arising under the constitution and laws of the United States. 145 U.S. 593, 601, 603, 12 Sup. Ct. 905.
In each of the three cases now before this court the only right claimed by the plaintiffs is under the law of Tennessee, and they assert no right whatever under the constitution and laws of the United States. In the first and second bills, the only reference to the constitution or laws of the United States is the suggestion that the defendants will contend that the law of the state under which the plaintiffs claim is void, because in contravention of the constitution of the United States; and by the settled law of this court, as appears from the decisions above cited, a suggestion of one party that the other will or may set up a claim under the constitution or laws of the United States does not make the suit one arising under that constitution or those laws. In the third bill no mention is made of the constitution or laws of the United States, or of any right claimed under either; and no statement in the petition for removal, or in the demurrer, of the defendant corporation, can supply that want, under the existing act of congress.
The result is that, in the first and second cases, the decrees must be reversed, at the cost of the plaintiffs, and the cases remanded to the circuit court of the United States with directions to dismiss the bills for want of jurisdiction; and that in the third case the decree must be reversed, at the cost of the defendants, and the case remanded to the circuit court of the United States, with directions to remand it to the state court from which it was removed. The costs in each case are to be borne by the party who brought into the circuit court of the United States a case not within its jurisdiction. Torrence v. Shedd, 144 U.S. 527, 12 Sup. Ct. 726; Martin v. Snyder, 148 U.S. 663, 13 Sup. Ct. 706.
Decrees reversed accordingly.
Mr. Justice WHITE, not having been a member of the court when these cases were argued, took no part in their decision.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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