The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1896-12-07


and shall order the same appraised,
sold and conveyed by the sheriff in par
GELS not exceeding one hundred and
sixty acres each, In the same manner
provided by law for the sale of real es-
tate upon execution"
BY section it is provided how the
money arising from the sale of the for
feited lands shall be disposed of. that
after cOmpensating the receiver. paving
the costs of the action. and allowing
the county attorney ten per centum for
his services, the residue shall be paid
70 the owner Of the real estate a the
time of the fOrfeiture if not so paid
within 30 days, 1T shall be paid into the
treasury Of the state of Kansas. sub
ject to the order of the person adjudged
TO be entitled thereto.
This statute is, in some respects. re-
narkable one. and if it means all that
has been claimed for it bv attorneys
temporarily speaking for the state in
this case. / might say it is almost alarm
ing IN ITS posi- lblliues; but with the
merits ot the controversy involved, we
are not now concerning ourselves.
The attorney general, with a fairness
commendable i'm an officer presenting to
the court a case of such importance to
the state. and to the rights of indfvid-
uals and corporations, has set forth in
full in the amendments to the petition.
all the material facts touching this pro-
ceeding. In addition to the avernents
necessary to bring the case within the
provisions of the act of the Iegisla tUre-
that more than 20 per centum of the
stock Of the defendant is owned and
held by nonresident aliens etc he has
set forth and cited the act of congress of
March B. 1863 granting lands to the
state Of Kansas i'm trust for the Atchi-
son, Topeka and Santa Fe Railroad
company, and imposing certain duties
and obligations upon the railroad com
pany to the general government in the
transportation of troops and property OF
the United States, from which is quoted
the following paragraph.
That said lands hereby granted to
said state shall be subject to the dis
posal of the legislature thereof for the
purposes aforesaid, and no other; and
the said railroads and branches shall be
and remain public highways for the use
OF the government of the United States
free from toll or other charges upon the
transportation Of amy property or
troops of the United States
The plaintiff further sets forth the ac-
ceptance Of these lands by The state in
trust, and the acceptance of the pro-
visions of the act and its obIigatiOns
by the railroad company
Tt further alleges that the defendant
corporation. whose property is sought
to be forfeited in this proceeding is
part of a great system of railroads for
merry owned and operated by the Atch-
son, Topeka & Santa Fe Railroad com
pany' ana now owned by the defendant
corporation, extending into and through
the states of Kansas, Missouri Iowa
Illinois. Colorado, and the territories OF
New Mexico and Oklahoma, said corpo-
4 etllJAA DGlllE engaged IN interstate COM
merce, IN the transportation of the mails
of the United States, and as a postal
ana military route under various acts
of congress
The plaintiff further proceeds to show
by apt averments that by virtue of Ger
tain legal proceedings in this court. the
present defendant company has s11c-
ceeded to all the rights PRIVILEGES and
lnnunltles granted to. and to all the
duties and obligations imposed upon its
predecessor in the possession and opera
ton of its railroad, and thereupOn prays
the court to grant Judgment of forfeit
ure, or such relief under the act of tha
legislature as the rights of all parties
viii warrant
The case is removed by the defendant
70 lnls court on the ground that it is a
civil action arising under the eonstitu-
ton, laws and treaties of the United
States This leads US to brief exami-
nation OF the act of congress of March
3. 1887, as amended in 1883. concerning
the jurisdiction of federal courts the
Hght OF removal of causes to such
courts. and Of some of the decisions Of
the courts touching these questions
If IS Well known to the legal profess
sion that recent decisions Of the su-
preIne court of the United States have
laid down this rule,
The circuit court of the United States
mas no jurisdiction. either original or by
removal, from state court, of suit
as one arising under the constitution.
laws or treaties of the United States.
unless that appears by the plaintiffs
statement of his own claim"
tennessee vs. Union & Planters Bank
l52 Y s. 545. ChappeH VS.. Waterworth.
153 " p lO2. Ditto, ASS. Telegraph & Ca
Bile Co VS.. Alabama 155 IT, S. 4S2 R
R- 90. vs.. r.. r. 90. 15 C g. Al 167 nv
Co VS. SkottoWe, 1852 U. S. 49O. Metcalf
vs. Watertown. 128 u. S. $50
In the case of Tennessee vs. Bank
supra, we find a full discussion of this
q quesllon' and consideration of the act
or congress of 18S7-S8. Tt appears that
md lar -ras r4F
ton Of the United States courts. it had
become the established rule that i'm
oflglnal proceedings in the circuit
courts, where the plaintiff relied upon
the ground that his was a suit arising
under the constitutions laws or treaties
ot the United States. such fact must
nave been made to appear affirmativelv
at the outset, from the plaintifffs com
plant Metcalf VS. VVatertox4-47 s77nra
Ihat the right to sue cannot depend
upon the defense which the defendant
may choose to set up. PLAINTIFFS com
plant must show that he relied on
some right under the eonstftu-
eion, laws or treaties of the
United States Fergus Fails vs. Fer
gus Fails Water Co. Y Fed. Rep S74
In this case Judge Caldwell says: THE
plaintiff seeks i'm its complaint to in
Ject federal question into the case bv
suggesting that the defendant will in
teFpose as defense to the suit res
oiuuon Of its council which impaired
the obligation of the contract, in con
travention of the constitution 1t is
apparent that the only use the plaintiff
proposes to make of the constitution is
as a barrier to a defense which the
plaintiff suggests the defendant may
set up- The appeal to the constitu-
tlon is made. not to support the plain
tlf 5 cause of action. but by way of
replication to an anticipated defense. !
The jurisdiction Of the circuit court
cannot be invoked by any such form of
pleading in an action like this
he lf ear7A 4csAr nrr
removal under the act of 1873 by the
defendant, that the record al the time
OF the removal showed that either par
" CLAIM I'd a right under the constfuu-
tion or u-e of fIa TT4-f+aH CAa+ae T717