The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1896-12-07
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[continued from First 20

nature, it must appear at the outset,
from the declaration or bill of the par
that Su dhsrae 5aat the otS gf Mord St
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 prop
erly take cOgnizance. If it does not
so appear. then the court upon demur-
rer or motion, or upon its own inspec-
ton of the pleading, must dismiss the
suit; just as il 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 1t cannot retain 1t in order to
see whether the defendant may
not raise some question of a federal
nature, upon which the right of recOV-
cry will finally depend; and if so re-
tanned, the want Of jurisdiction at the
commencement of the suit, is not cured
by an answer or plea which may sug-
gest q question of that kind" That
view has been affirmed and acted up
on at the present term in Colorado Co
VS.. Turck, $50 u. S. 13S. 143
The court further says that by the
act of 1873. in case of original puriSdic-
ton, it was essential to jurisdiction
that the plaintiff declaration or bill
should show that he asserts a right I'M
der the constitution or laws of the
United States
The court further says that under the
clause in section of the act of 1878
for removal of causes from the state
to the federal courts. removal can be
made only by defendants, and OF suits
of which the circuit courts of the
United States are given original Juris-
dictiOn by the preceding section, thus
limiting the jurisdiction 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. 1.-THE change is in ac-
cordance 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" Getting
many cases.)
The court then q. 1922. quotes the
dissenting views of Mr.. Justice Miller
in the original decision 1ustifying a re-
moval under the act of 1875, as indica-
tive of the intent of congress in chang
ing the phraseology in the removal act
Of 1887.
which may have Influenced congress, it
may be well 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
removal where the cause of action de
pended on the law Of the state, ana
when the act of congress only came IN
incidentally as a part, (It might be
very small part,)Of the defendants plea
in avoidance"
While the court does not say in terms
that to authorize the removal of a cause
from a state to a federal court, it must
appear from the plaintiffs complaint
that he relies upon some provision of
the constitution, laws or treaties of the
United States. it does decide that he
must so far rely, or that his claim must
be so far pre0ica ted upon some provision
of the constitution, law or treaty of the
United States. as would authorize him
to bring an original action in the circuit
court.
Applying that test to this case. it
seems to me it is the end of the con-
trOVerSy in this court, for it cannot be
maintained that in this case, the plain
tiff makes such showing in its petition.
Isee nothing in this complaint tina would
entitle the plaintiff to invoke the origi-
nal jurisdiction of a federal court, to
enforce the provisions Of the act of the
legislature.
The facts set forth do not tend to
show any claim arising under act Of
congress, the constitution or treaties of
the United States, but rather to fore
shadow or anticipate a possible defense
to the proceedings by the railroad com
pany to the proceedings growing out Of
the act Of congress of March 3. 1863.
That defense is available to the defend
ant in the state court, and being a fed
eral question can be carried to the su-
preme court of the United States if the
right is denied.
Counsel have especially called the
courts attention to the cases of Cali
fornia VS.. Pacific Ry. Co. us Z. S. and
j 127 U. 5. also to the Union Pacific re-
moval cases. 115 U. S. but in my view
I of those cases, they have no important
If we were considering the general
merits of the controversy between the
state and the defendant corporation, in
Z stead of the question of Jurisdiction,
7 those cases would have material bear
/ ing upon the questions al issue.
/ For the reasons above given, I reach
/ the conclusion that this court is with
out jurisdiction. and this case must be
4 remanded to the state court
THAYER, CIRCUIT JUDGE.
in he r-fr.
7 pressed by Judge Foster. While the ju-
dietary act of March 3. 1875, as stat 40.
c. 1870 remained in force, it was settled
/ by repeated adjudications that when q
/ case was removed from the state to a
/ federal court because of the existence of
would be upheld. provided the record.
either that the plaintiff bases his right
! to relief or that the defendant predicated
( his defense. on some provision Of the fed
a federal law or treaty.
Railroad Co V Mississippi, 102 U. s.
135- This rule. that a case might be re-
moved when a federal question was rails
/ defendant. under the act of March 9, 1875
/ was privileged to plead to the declaration
! or complaint before q petition for removal
act. to bring upon the record. any federal
: question which either party desired to
raise, before the right Of removal was eX-
ercised. But the doctrine no longer pre-
49, w lAN-- 49, "a my DS Con-
sldeieu' HcluulnS any allegations found
/ in the petition for removal. in order to
! discover the existence OF a federal QUeS-
ton. In the case of Tennessee ". I'm
ion & Planters bank, 1872 u. S. 454 ass
| the supreme court of the United States.
constituting the act Of March g. 1887. "a
stat $50. c. 373), has Enthusiastically held
that it is no longer possible to remove q
case to the federal court on the ground
that it involves a federal question, unless
it affirmatively appears from the auega-
lions of the complaint or declaration, that
the plaintiff predicates his right to re-
lief, either in whole or in part. on some
provision OF the federal constitution, or
some provision of federal statute or
! treaty. The case referred to was a case
! brought by the state of Tennessee against
/ a local bank of that state, to recover
certain taXes which were imDosed the