# Railroad Company v. Mississippi/Dissent Miller

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* Dissenting Opinion Miller
United States Supreme Court
102 U.S. 135
Railroad Company v. Mississippi
MR. JUSTICE MILLER dissenting.
I dissent from the opinion of the court in this case. It is always a matter of delicacy when a cause of which a court has undoubted jurisdiction is transferred, at the instance of one party, to another court of concurrent jurisdiction. It is especially so when the transfer is to be made to a Federal from a State court, without regard to the consent of the latter, and against the objection of the other party.
In such a case the right of removal should be made very clear on the application for that purpose. And when the application has been refused, and the State courts, up to the highest to which the cause can be carried, have considered and decided it upon its merits, the judgment finally rendered should not be treated as a nullity, unless the case upon which the want of jurisdiction of these courts depends is made very plain indeed.
I do not think such a case is presented here.
The removal is based upon the second section of the act of Congress of March 3, 1875, 'to determine the jurisdiction of circuit courts of the United States, and to regulate the removal of causes from, State courts, and for other purposes.' This enacts '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 $500, and arising under the Constitution or laws of the United States, or treaties made, or which shall be made, under their authority,' may be removed by either party, on proper showing, to the Circuit Court of the United States. The decision is that this is a suit arising under a law of the United States, to wit, the act of Congress concerning the bridge of which plaintiff complains. I make no captious criticism by reason of the fact that the opinion of the court is mainly directed to the constitutional provision extending the judicial power of the United States to cases arising under that instrument and the laws and treaties made under its authority, while the word used in the statute is suits. The language of the Constitution may be broad enough to sustain a statute which authorizes the removal of a cause at any stage when a case is made, which, taken as a whole, requires a judgment based upon the Constitution, a law, or a treaty of the United States.
The act of 1875 is the first which ever attempted to give a right of removal on such ground, and it limits that right to suits arising under the Constitution, laws, or treaties of the United States. It does not give the right of removal where the defence arises under such a law, unless 'suit' necessarily includes the defence which may be made thereto. The lexicons do not so define it. Bouvier's Law Dictionary says that in the practice of the law 'suit' means 'an action.' Can a defence to an action be called the action? No more can the defence to a suit be called the suit. Webster says 'suit' is the act of suing; the process by which one gains an end or object, and as a word in the law, he says it is 'an attempt to gain an end by legal process;' 'a legal application to a court for justice;' 'an action or process for the recovery of a right of action.' Does this mean the defence to an alleged right of action? Can it be held to mean the attempt to defeat an action? Worcester defines it thus: 'In modern law, the prosecution of some claim or demand in a court of justice; judicial prosecution:' and perhaps this is as good a definition of the word, when used in reference to legal proceedings, as any that can be framed, and it is peculiarly applicable to the use of the word in the act of 1875.
In Weston v. The City of Charleston (2 Pet. 449), Mr. Chief Justice Marshall, in delivering the opinion of the court, conceding the term to be a very comprehensive one, says it applies 'to any proceeding in a court of justice by which an individual pursues that remedy in a court of justice which the law affords him.'
Taking the idea of a 'suit' as thus defined, what is meant by the suit arising under a law of Congress? The obvious answer seems to be that the cause of action is founded on the act of Congress; that the remedy sought is one given by an act of Congress; that the relief which is prayed is a relief dependent on an act of Congress; that the right to be enforced in the suit is a right which rests upon an act of Congress. In all this I see no place for holding that a defence to a suit not so founded on an act of Congress, or a plea which the defendant may interpose to any ordinary action, though that plea be founded on an act of Congress, is a suit arising under an act of Congress.
Looking also 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 defence 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.

## 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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