Daily globe. [volume] (St. Paul, Minn.) 1878-1884, 1880-10-20
MO0RHEAD CROSSING.

oy <ASAooS tho INOIInOkA ocAAcs
United States Circuit Court, Minnesota Dis
trict. In the matter of the petition of tbs
Barnesville d Moorhead railw ay company
for the appointment of commissioners to ap-
praise right of way. October, 1880.
This matter was removed from tho State
court and now comes before this court upon
the application of the petitioners to the court
to proceed with the appointment of commits
sioners, etc.
Bgelow, Flandrau & CLARK and r. B. Galusha
for petitioner. Gilman & Clough for respond
emit. the Northern Pacific railway company.
The GAINESVILLE & Moorhead Railway COM
pany, organized under the general railroad
laws of the State of Minnesota, commenced
proceedings under title L, chap. "a, Young's
MINI. stat, to obtain by condemnation of CROSS
ing over the track of the Northern Pacific road,
at or near Moorhead, in the county of Ol,y,
and the land necessary for that purpose. The
power to acquire by condemnation q crossing
is granted by chapter 80. section 1. Minnesota
session laws of 1879, and by section the pro-
ceedings to obtain the land shall be instituted
and conducted in the same manner as other
similar proceedings by railroad com panies un-
der the general statutes above alluded to with
same reservations. which are not important
here.
A petition stating the object and amount of
land, etc., to be taken was filed in accordance
with the statutory provisions for the appoint
ment OF three commissioners to ascertain and
report on the com pensation, and presented to
the district court of the State of Minnesota
in and for the County where the land and
crossing are situated land proper notice given
as required. At the time of the hearing, Sept.
%, 1880. the Northern Psci6c Railroad COM
pany appeared by counsel and filed a petition
info, n1i0 hat s,,ffo
greater amount than $1,000, that it is a COM
panY created and existing by virtue of certain
acts of the Congress of the United States-at-
taching them with the act of
the State of Minnesota giving the company
the right to build railroad across the State
to its petition, and alleges shat it has de-
tense arising under the laws of the United
States to-wit: That it is a corporation of the
United States created and existing as afore-
said and holds its right of way, rights and
property under the acts of Congress aforesaid,
and that the State of Minnesota has no power
to confer upon any person or corporation the
right to enter upon the Same or to take the
same in the manner proposed by the said pro-
ceedings. Wherefore your petitioner, the
Northern Pacific Railroad company, prays that
the said proceedings be removed into the cir
cult Court of the United States for the district
of Minnesota, and that this court proceed no
further therein"
cifc Railroad company will enter in the United
States circuit court, on the first day of the
next session thereof hereafter to be holden, q
copy OF the record in the said suit and pro-
ceeding. ETC., accompanied the petition, and
was filed.
The District court of the State made the fol-
lowing order:
Ordered that the application of the Nor
thern Pacific Railroad company to remove the
said proceedings into the Circuit court of the
United States for the District of Minnesota be,
and the same hereby is granted, and that no
further proceedings in this matter be had in
this court. By the court,
October 6, 1880. o. P. SrEARNs, judge"
The Gainesville & Moorhead railway 90.
have procured properly certified COPY Of the
record In the State court, and fled it In the
United States circuit court, Oct. Is, 1880, the
next regular session of the court being on the
I'd Monday of December, and on this copy of
the record asks the court to proceed with the
condemnation of the crossing and the neces-
sary land, etc.
The Northern Pacific railroad company OBJ
jects to the jurisdiction of the court to pro-
coed in the matter at this time.
The right is given by the statute to the
Northern Pacific railroad company, whose
land is to be condemned and track crossed
to show cause on the hearing for the appoint
ment of commissioners against granting the
prayer of the petition, and any of the facts
therein contained may be disproved, and the
court shall hear the proofs and allegations of
the parties and if satisfied that the public in
terests require the crossing to be made aud the
lands etc, to be taken are necessary for the pur-
pose, it shall make an order appointing three
commissioners to ascertain the amount to be
paid by the petitioning corporation to per-
sons interested. An appeal is allowed from
this appraisement of the commissioners to be
prosecuted IN the court where their report is
ILL = "a -
assess the damages awarded, etc.
Whether the proceeding, as shown by the rec
ord presented, is essentially political in its
character and not judicial and whether Ii il q
suit within the meaning of the second section
of the removal act of 1875, it is not necessary,
at this time, to determine.
ALI parties appear to agree that 1t is a suit or
proceeding which can be removed from the
State court, and shall not on this application
consider the question.
The only point to be decided is Has the
federal court at this time Jurisdiction 80 as to
proceed with the matter?
am inclined to the opinion that on filing
the petition in the State court, making proper
case for removal, and executing and fling the
bond required, jurisdiction attaches in the cir
cult court, and when at any time it is known
by the federal court that such steps have been
taken in the State court for removal, either by
a copy of the record being filed, or entered
therein Defore the time required by the statute,
many incidental proceedings may be taken, and
provisional remedies as attachments, etc.. may
be granted on motion, as could be
done after the commencement of suit by orig
insl process and appearance of the defendant,
but the cause cannot proceed until the limited
time has expired and the transcript entered.
Such Interpretation of the removal acts has
support in the opinion of the supreme court of
the United States when constituting sec. 641, of
the revised statutes, involved in the case of
Virginia vs.. Rives, 10 Otto. 316. There is q
declaration in that section similar to the one in
the act of 1875, that upon fling Of the petit
ton (no bond being. required) all further
proceedings in the State court shall cease.
~ The language of the act of 1875 is:
'The State court shall accept the petition and
bond and proceed no further in such suit, -
| and the court say on page 3l7: 'It is there
fore material inquiry whether the petition of
the defendants sets forth such facts as made q
case for removal. and consequently arrested
the jurisdiction of the State court and trans
ferred it to the federal court" thus
implying that the federal court acquired
jurisdiction ipso facto on fling petition and
bond. So also in the Removal Cases. report
ed on page AIS, e10th Otto, the court say:
| .:sWhile the act of Congress requires security
that the transcript shall be filed on the first
day, it nowhere appears that the circuit court
is to be deprived of Jurisdiction, if by acct lent
tbn fu IN oil l.