Kansas City daily journal., 1896-12-08

Il
versy involved, We are not now concerning
ourselves.
The attorney general with fairness
commendable in an officer presenting TO
the court a case of such Importance to the
state and to the rights of individuals and
corporations. has set forth in full in the
amendments TO the petition all the mate
rial facts touching this proceeding. In ad-
dition to the averments necessary to bring
the case within the provisions of the act
of the legislature. that more than 20 per
centum Of the stock of the defendant is
owned and held by nonresident aliens.
etc. ne has set forth and cited the act of
congress of March ), 1865. granting lands
to the state of Kansas in trust for the
Atchison, Topeka & Santa Fe Railroad
Company. and imposing certain duties and
obligations upon the railroad company to
the general government in the trausporta-
tion 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 10 the disposal of
the legislature thereof for the purposes
aforesaid. and no other; and the said rail-
roads and branches shall be and remain
public highways for the use of the gov
errment of the United States. free from
all toll and other charges upon the trans
portation of any 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 provisions
of the act and its obligations by the rail-
road company
1T further alleges that the defendant
corporation. whose property is sought to
be forfeited in this proceeding, is part of
a great system of railroads. formerly owned
and operated by the Atchison. Topeka &c
Santa Fe Railroad Company. and now
owned by the defendant corporation, ex-
tending into and through the states of
Kansas, Missouri, Iowa, Illinois and Col
oraGo, and the territories OF New Mexico
and Oklahoma. said corporation being en-
gagged in interstate commerce. in the trans
pOrtatiOn of the mails of the United States
and as postal and military route, under
various acts of congress.
The plaintiff further proceeds to show
by apt aveTments that by virtue of GER
tam legal proceedings in this court, the
present Defendant company has succeeded
to all the rights privileges and immunities
granted to, and to all the duties and obli-
cations imposed upon, its predecessor in
the possession and operation of its rail-
road, and thereupon prays the court to
SraEt judgment of forfeiture, or such re-
rights Cf all parties will warrant.
The case is removed by the defendant to
this court on The ground that it is a civil
action arising under the constitution, laws
and treaties Of the United States. This
leads us TO a brief examination of the act
Of congress CT March s. 1887, as amended
in 1888, concerning the jurisdiction of fed
eral courts. the right of removal of causes
TO slT5h courts. and some OF the decisions
of the courts touching these questions
1T is well known to the legal profession
triat recent decisions of the supreme court
of the United States nave laid down this
rule: The circuit court of the United States
has no jurisdiction. either original or by re-
mOVal from a state court, of a suit as one
arising under the constitution, laws or
treaties of the United States unless that
appears by the pFairtiff's statement Of his
own claim
THE facts set forth 90 not tend to show
any claim arising under any act of con-
gress, the constitute or treaty of the
United States, but rather to foreshadow or
anticipate a possible defense to the pro-
ceedings by the railroad company growing
out OF the act of congress of March 8,
1863. That defense is available 10 the de-
fendant in the state court and being
federal question, can be carried to the SUI
preme court of the United States if the
right is denied.
Counsel have especially called the
courts attention to the case of California
vs.. Pacific Railway Company, 11S United
States ard 127 United States: also to the
Union Pacific removal cases, 1l5 United
States. but, in my view of those cases,
they have no important bearing on the
question here.
IF We were considering the general mer-
its of the controversy between the state
and the Defendant corporation. instead of
the question of jurisdiction. those cases
bglI rilI fserar ~ ba
questions at issue.
For the reasons above given, I reach
the conclusion that this court is without
jurisdiction, and this case must be remand
ed to the state court"
Following are the main points in Judge
Thayer's opinion, ConCurring in the opinion
of Judge Foster:
Il concur in the foregoing views ex-
pressed by Judge Foster. While the jul
dietary act of March 8. 1915 GS stat. $40, c.
1870, remained in force, it was settled by
repeated adjudications that when a case
was removed from a state to a federal
| court because of the existence of federal
| question. the right to remove would be up
| held. provided the record. when lodged in
| the federal court. showed either that the
| plaintiff based his right to relief. or that
| the defendant predicatad his defense. on
some provision of the federal constitution.
or on some provision of a federal law or
| L. S 1852. This rule, that a case might be
| removed when a federal question was
raised by either party. and the fact that a
| defendant. under the act of March 3. 1873,
was privileged 10 plead to the declaration
or complaint before petition for removal
| was tiled-uade it possible, under that act.
| to bring upon the record any federal ques-
| ton which either party desired to raise,
| before the right of removal was eXecised.
! But the doctrine no longer prevails that
| the whole record may he considered, in
! Guiding any allegations found in the petit
! ton for removal. in order to discover the
| existence of a federal question.
The case Of Tennessee VS.. Union and
| Planters bank. supra. was fully and care
! fully considered by the supreme court OF
! the United States in the light of the judi
! ciary act of March 3. 1SS7. Two of the JUS
tices. Mr.. Justice Harlan and Mr.. Justice
/ Field filed dissenting opinion. Since
! that decision was promulgated. the doc
I trinc therein announced has been adhered
| 20 and applied in several other cases.
| CChapPeu Y. Watcrworth. 155 L. s lO2:
/ Telegraph and Gable 60. vs.. Alabama 155
! /. :. 4S2; Oregon Short Line and Utah
Northern Railway 60. V. Skottowe 162
! l. 5. 400; St. Paul, Minneapolis & Manitobs